EXHIBIT 10.16
Certain information in this Exhibit has been omitted and filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request.
EXHIBIT 10.16
METAWAVE COMMUNICATIONS CORPORATION
MANUFACTURING AGREEMENT
This agreement is made this 3rd day of September, 1998 between Metawave
Communications Corporation, a Delaware corporation ("Customer") and Powerwave
Technologies, Inc., a Delaware corporation ("Manufacturer").
RECITALS
Customer desires to have certain products manufactured by Manufacturer for
sale to Customer. Manufacturer has the capability of manufacturing such
products and desires to do so for sale to Customer.
AGREEMENT
In consideration of the foregoing and the agreements contained herein, the
parties agree as follows:
1. DEFINITIONS.
(a) "Confidential Information" of a party shall mean any information
disclosed by that party to the other pursuant to this Agreement which is in
written, graphic, machine readable or other tangible form and is marked
"Confidential," "Proprietary" or in some other manner to indicate its
confidential nature. Confidential Information may also include oral information
disclosed by one party to the other pursuant to this Agreement, provided that
such information is designated as confidential at the time of disclosure and is
reduced to writing by the disclosing party within a reasonable time (not to
exceed thirty (30) days) after its oral disclosure, and such writing is marked
in a manner to indicate its confidential nature and delivered to the receiving
party. Notwithstanding any failure to so identify it, however, all
Specifications shall be Confidential Information of Customer.
(b) "Inventory" shall mean raw materials and supplies necessary for
the manufacture of Products pursuant to this Agreement.
(c) "Long-Lead Inventory" shall mean those items of Inventory
identified in writing by Manufacturer to Customer prior to beginning manufacture
of any particular type of Product that have a lead time from Manufacturer's
supplier longer than ninety (90) days.
(d) "Products" shall mean the products manufactured by Manufacturer
in accordance with the Specifications pursuant to this Agreement, as set forth
on Exhibit A attached hereto.
(e) "Intellectual Property" shall mean (i) all rights held by
Customer in its Confidential Information, including, but not limited to,
patents, copyrights, authors' rights, trademarks, tradenames, know-how and trade
secrets, irrespective of whether such rights arise
under U.S. or international intellectual property, unfair competition or trade
secret laws, and (ii) all rights held by Manufacturer in the Products and in its
Confidential Information, including, but not limited to, patents, copyrights,
authors' rights, trademarks, tradenames, know-how and trade secrets,
irrespective of whether such rights arise under U.S. or international
intellectual property, unfair competition or trade secret laws.
(f) "Purchase Order" shall mean a Customer Purchase Order in the form
provided by the Customer or in a form mutually agreed to by the parties.
(g) "Specifications" shall mean the specifications for the Products
as provided by Customer and accepted by Manufacturer which are set forth in
Exhibit B, and may be revised from time to time upon mutual written agreement of
the parties.
2. MANUFACTURE AND SUPPLY OF PRODUCTS.
(a) SALE AND PURCHASE. Manufacturer agrees to sell to Customer such
quantities of the Products meeting the Specifications as Customer may order in
accordance herewith. Subject to the provisions of section 10 hereof, so long as
this Agreement remains in effect, Manufacturer agrees to satisfy 100% of
Customer's requirements for the Products under this Agreement. Manufacturer
will be the sole supplier of Products to Customer which Customer purchases for
resale in its antenna systems to its cellular network operator customers
(hereinafter referred to as "Network Operators"), provided that Manufacturer
offers the Product(s) for sale. The foregoing does not preclude (i) Customer
from designing and selling to Network Operators antenna systems which use
Products of another manufacturer if Manufacturer does not offer such Product for
sale, and (ii) Network Operators from purchasing a Product directly from
Manufacturer or from purchasing or utilizing the product of another manufacturer
for use with Customer's antenna system.
(b) AGREEMENT TO MANUFACTURE. Subject to section 2(a) of this
Agreement, pursuant to Purchase Orders or changes to Purchase Orders issued by
Customer and accepted by Manufacturer, Manufacturer agrees to procure Inventory,
components and other supplies and to manufacture, test, assemble, and deliver
the Products pursuant to the Specifications for each such Product and to deliver
such Products to a location designated by Customer.. Manufacturer will not
place its name or any other marking not approved by Customer anywhere on the
exterior of the Products or their respective packaging material, except
markings, if any, which are required by law.
(c) FORECASTS. Manufacturer shall supply the quantities of Product
meeting the Specifications on the Delivery Dates requested by Customer, provided
the Delivery Dates conform to the Product lead times and Customer forecasts set
forth herein. On the tenth (10th) day of each month, Customer shall provide
Manufacturer with a rolling forecast in writing (the "Forecast") of Customer's
estimated aggregate purchase requirements of Product for the subsequent twelve-
month (12) period. Subject to section 2(d) hereof, the initial six (6) weeks of
the Forecast shall be binding. Subject to these binding Forecast requirements,
if the Forecast for any period is less than the previous Forecast supplied for
the same period, the difference will be
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considered canceled. Manufacturer shall use its best efforts to supply the
number of Products set forth in the Forecast.
(d) PURCHASE ORDERS. All orders for Product shall be submitted to
Manufacturer in writing by mail or facsimile to the address set forth on the
signature page to this Agreement, and shall conform to the binding Forecasts in
accordance with Section 2(c). Customer shall submit such Purchase Orders to
Manufacturer at least 30 business days prior to the date of requested delivery
("Delivery Date"), or such longer period of time as mutually agreed upon by the
parties for Products incorporating Long-Lead Inventory.
(e) ORDER FORECAST VARIATIONS. For each Purchase Order, Customer
shall be entitled, without penalty, to: (i) upon forty-five (45) or more days'
prior notice, reschedule the scheduled delivery date for one hundred percent
(100%) of the quantity of Product ordered pursuant to such Purchase Order and/or
(ii) upon more than forty-five (45) days prior notice, increase the quantity of
Product ordered by an amount equal to an additional one hundred percent (100%)
of the quantity of Product ordered. Such rescheduled Purchase Orders shall be
submitted in writing to Manufacturer, by mail or facsimile, and shall supersede
prior Purchase Orders to the extent such prior Purchase Orders conflict with the
rescheduled Purchase Order.
(f) ACCEPTANCE OR REJECTION OF PURCHASE ORDERS. Purchase Orders that
conform to binding Forecasts delivered to Manufacturer for the relevant period
shall be deemed accepted by Manufacturer upon receipt. All other Purchase
Orders not rejected by Manufacturer within ten (10) working days of receipt by
Manufacturer shall be deemed accepted by Manufacturer effective upon receipt of
such Purchase Order.
(g) ENGINEERING CHANGES. Customer may request at any time, with at
least thirty (30) days' written notice, that Manufacturer incorporate an
engineering change into the Product. Such request will include a description of
the proposed change sufficient to permit Manufacturer to evaluate its
feasibility. Manufacturer's evaluation shall be in writing and shall state the
impact on delivery schedule and expected cost. Manufacturer will not be
obligated to proceed with the engineering change until the parties have agreed
in good faith on the changes to the Specifications, Delivery Dates and Pricing
and upon the costs to be paid by Customer, including reassembly, retooling or
cost of Inventory on-hand and on-order that becomes obsolete as a result of the
Engineering Change. Manufacturer will use all reasonable efforts to return all
unused Inventory for a full refund, to cancel pending orders and to take other
actions to reduce such costs to be paid by Customer.
3. TOOLING.
(a) TOOLING/NON-RECURRING EXPENSES. Manufacturer shall provide
tooling that is not specific to the Product at its own expense. Customer shall
pay for or obtain and consign to Manufacturer for its use any Product-specific
tooling and other reasonably necessary non-recurring expenses specific to the
Product, as set forth in Manufacturer's quotation, and approved in writing by
Customer
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4. PRODUCT SHIPMENT AND INSPECTION.
(a) SHIPMENTS. All Products delivered pursuant to the terms of this
Agreement shall be suitably packed for shipment to avoid damage, marked for
shipment to Customer's destination specified in the applicable Purchase Order,
and Manufacturer shall use its best efforts to ensure that the Products are
received by Customer 0 days late, or 5 days prior to the delivery date set forth
on the Purchase Order (the "Delivery Date"). Shipment will be F.O.B.
Manufacturer's factory, at which time risk of loss and title will pass to
Customer. All freight, insurance and other shipping expenses, as well as any
special packing expenses approved in writing by Customer and not included in the
original price quotation for the Products will be paid by Customer.
(b) CANCELLATION. Customer may not cancel any portion of an accepted
Purchase Order without Manufacturer's prior written approval, which will not be
unreasonably withheld. If the parties agree upon a cancellation, Customer will
pay Manufacturer for Products and Inventory affected by the cancellation as
follows: 100% of the cost of all Inventory in Manufacturer's possession and not
returnable to the vendor or usable for other customers, whether in raw form or
work in process.. Manufacturer will use reasonable commercial efforts,
including the mutual involvement of Customer, to return unused Inventory for a
full refund, net of restocking charges of such vendor and to cancel pending
orders. Customer will be entitled to take delivery of all Products and
Inventory to be paid for by Customer under this section, promptly following
Manufacturer's receipt of payment therefor.
5. PAYMENT TERMS, ADDITIONAL COSTS AND PRICE CHANGES.
(a) PAYMENT TERMS. Payment for any products, services or other costs
to be paid by Customer hereunder are due thirty (30) days from the later of (i)
the date of invoice for Products delivered to Customer, and (ii) the delivery of
products to the Customer, and shall be made in lawful U.S. currency.
(b) PRICING. The prices for the Products shall be as set forth on
Exhibit C hereto and will be reviewed quarterly or as requested by Customer.
Such prices are, and the price for each Product sold hereunder will be, as [***]
as the [***] for by Manufacturer to [***] of the [***] to the [***]. For
comparison purposes, Manufacturer may [***] sales.
(c) ADDITIONAL COSTS.
(i) DUTIES AND TAXES. All prices quoted are exclusive of
federal, state and local excise, sales, use and similar duties and taxes, and
Customer shall be responsible for all such items.
(ii) EXPEDITING CHARGES. Customer shall be responsible for any
expediting charges reasonably necessary because of a change in Customer's
requirements.
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Manufacturer shall obtain approval from Customer for expediting charges prior to
incurring any such charge.
(d) COST REDUCTIONS. Manufacturer may be requested by Customer to
institute a cost reduction plan which will be reviewed quarterly pursuant to
section 5(e) below.
(e) QUARTERLY BUSINESS REVIEWS. During each quarter, the parties
will have a quarterly business review to review the prices of the Products, cost
reduction plans, quality, Forecasts and Delivery performance and to agree to any
modifications that may be necessary.
6. LICENSE GRANTS; OWNERSHIP RIGHTS.
(a) INTELLECTUAL PROPERTY RIGHTS. Each party shall retain sole
ownership of, and all rights to, any Intellectual Property of any kind
previously owned by that party or created solely by that party. The parties
shall jointly own any Intellectual Property where both parties made substantial
contributions documented in writing prior to the creation of the Intellectual
Property.
(b) TRADEMARKS. In consideration of the fees set forth herein,
Customer further grants to Manufacturer a non-exclusive license to use the
Trademarks on and in connection with the manufacture of the Products, and for
this purpose to affix, subject to Customer's prior written approval, the
Trademarks to or on the Products. Such trademark license shall expire or
terminate upon the expiration or termination of this Agreement. The Trademarks
may only be used in association with the manufacture and distribution of the
Products pursuant to the terms of this Agreement. Any and all uses of the
Trademarks shall be subject to the prior written approval of Customer.
Manufacturer shall not remove trademark notices from any Product without the
prior written consent of Customer. Manufacturer shall not use the name,
Trademarks or logos associated with the Products in its business name. For
purposes of the preceding paragraph, "Trademark" shall mean the trademarks that
are associated with the Product which are approved by Customer for use by
Manufacturer in the manufacture of the Products.
7. CONFIDENTIAL INFORMATION.
(a) NONDISCLOSURE AND NONUSE. Each party shall treat as confidential
all Confidential Information of the other party, shall not use such Confidential
Information except as set forth in this Agreement, and shall use reasonable
efforts not to disclose such Confidential Information to any third party.
Without limiting the foregoing, each of the parties shall use at least the same
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance to prevent the disclosure of Confidential
Information disclosed to it by the other party under this Agreement. Each party
shall disclose Confidential Information of the other party only to its
directors, officers, employees, and consultants who are required to have such
information in order for such party to carry out the transactions contemplated
by this Agreement. Each party shall promptly notify the other party of any
actual or suspected misuse or unauthorized disclosure of the other party's
Confidential Information. Each party agrees to hold
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such Confidential Information in confidence for a period of three (3) years from
the date of receipt of same unless otherwise agreed to in writing by the
disclosing party.
(b) EXCEPTIONS. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which the receiving party can prove:
(i) was in the public domain at the time it was disclosed or
has entered the public domain through no fault of the receiving party;
(ii) was known to the receiving party, without restriction, at
the time of disclosure, as demonstrated by files in existence at the time of
disclosure;
(iii) is disclosed with the prior written approval of the
disclosing party ;
(iv) was independently developed by the receiving party without
any use of the Confidential Information, as demonstrated by files created at the
time of such independent development;
(v) becomes known to the receiving party, without restriction,
from a source other than the disclosing party without breach of this Agreement
by the receiving party and otherwise not in violation of the disclosing party's
rights; or
(vi) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; provided, however,
that the receiving party shall provide prompt notice of such court order or
requirement to the disclosing party to enable the disclosing party to seek a
protective order or otherwise prevent or restrict such disclosure.
(c) RETURN OF CONFIDENTIAL INFORMATION. Upon expiration or
termination of this Agreement, each party shall promptly return all Confidential
Information of the other party. In addition, each party shall, upon written
request of the other party, return Confidential Information of such other party.
(d) REMEDIES. Any breach of the restrictions contained in this
Section is a breach of this Agreement which may cause irreparable harm to the
nonbreaching party. Any such breach shall entitle the nonbreaching party to
injunctive relief in addition to all legal remedies.
(e) CONFIDENTIALITY OF AGREEMENT. Each party shall be entitled to
disclose the existence of this Agreement, but agrees that the terms and
conditions of this Agreement shall be treated as Confidential Information and
shall not be disclosed to any third party; provided, however, that each party
may disclose the terms and conditions of this Agreement:
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
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(iii) to legal counsel of the parties;
(iv) in confidence, to accountants, banks, and financing
sources and their advisors;
(v) in connection with the enforcement of this Agreement or
rights under this Agreement; or
(vi) in confidence, in connection with an actual or proposed
merger, acquisition, or similar transaction.
8. INDEMNITY.
(a) INDEMNIFICATION BY MANUFACTURER. Manufacturer agrees, at its own
expense, to indemnify the Customer against any damages, costs (including
attorneys' fees and costs) or other liability arising from any claim brought
against them with respect to any Products manufactured by Manufacturer, and any
reasonable out-of-pocket costs to Customer of any returned or failed Products
manufactured by Manufacturer, including all costs incurred as a result of a
Product withdrawal or recall (collectively "Customer Losses") to the extent such
Customer Losses are caused by Manufacturer's failure to manufacture the Products
in conformance with the Specifications and with Manufacturer's warranties as set
forth in this Agreement, or by Manufacturer's misconduct or negligence;
provided, with respect to any claim or action, that Customer provides (i) prompt
written notice of such claim or action, (ii) sole control and authority over the
defense or settlement of such claim or action and (iii) proper and full
information and reasonable assistance to defend and/or settle any such claim or
action.
(b) INDEMNIFICATION BY THE CUSTOMER. Customer agrees, at its own
expense, to defend or at its option to settle any claim or action brought
against Manufacturer based on an allegation that the Specification provided by
Customer for a Product manufactured by Manufacturer pursuant to this Agreement
infringes any U.S. patent, or registered U.S. copyright, or registered U.S.
trademark , trade secret, or other intellectual property right of any third
party, and to indemnify Manufacturer against any and all damages and costs,
including legal fees, that a court awards against Manufacturer under any such
claim or action; provided that Manufacturer provides Customer with (i) prompt
written notice of such claim or action, (ii) sole control and authority over
the defense or settlement of such claim or action and (iii) proper and full
information and reasonable assistance to defend and/or settle any such claim or
action. Notwithstanding the foregoing, Customer assumes no liability for
infringement claims with respect to any Product that is not manufactured in
conformance with the Specifications and with Manufacturer's warranties as set
forth in this Agreement.
The foregoing states the entire liability and obligations of, and the
exclusive remedy of, the parties, with respect to any alleged or actual
infringement of patents, copyrights, trade secrets, trademarks or other
intellectual property rights.
(c) NO OTHER LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, NEITHER PARTY NOR ITS AGENT(S), REPRESENTATIVE(S) OR
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EMPLOYEE(S) SHALL BE LIABLE TO THE OTHER PURSUANT TO THIS AGREEMENT FOR AMOUNTS
REPRESENTING LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS OR INDIRECT,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF CUSTOMER, ITS AGENT(S),
REPRESENTATIVE(S) AND EMPLOYEE(S) TO THE MANUFACTURER FOR DAMAGES OR ALLEGED
DAMAGES WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE)
WITH RESPECT TO THIS AGREEMENT IS LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS
PAID BY CUSTOMER TO MANUFACTURER UNDER THIS AGREEMENT DURING THE TWELVE (12)
MONTHS IMMEDIATELY PRECEDING THE EVENT AND/OR PRODUCT GIVING RISE TO THE
DAMAGES.
9. WARRANTY AND DISCLAIMER.
Manufacturer warrants that all Products will conform to the
Specifications set forth herein (or as may otherwise be mutually agreed upon in
writing), and will be free from defects in material and workmanship for a period
of fifteen (15) months from date of shipment to Customer. In the case of
shipments directly to a customer site, the warranty period shall also begin on
the date of shipment from the Manufacturer. In the event of a failure under
warranty, Manufacturer will repair or replace the Product(s), at it's option,
within thirty (30) days notice of such non-compliance. Manufacturer shall bear
the transportation charges for Products returned under these warranty
conditions. If the Product is not found defective by Manufacturer, then
Customer will bear the expense to return the Product to its facility. Except
for the foregoing expressly stated warranties, manufacturer makes no express or
implied warranties relating to the products covered by this agreement.
Manufacturer expressly disclaims any implied warranties of merchantability or
fitness for a particular purpose.
10. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective on the date of this
Agreement and shall continue for a period of eighteen (18) months; this
Agreement shall be extended automatically at the end of the initial term or
subsequent terms for an additional 18 month term, unless within thirty (30) days
prior to the end of the initial term or a renewal term, a party gives written
notice to the other party of its intention to terminate the Agreement.
(b) TERMINATION FOR CONVENIENCE. This Agreement may be terminated at
any time with or without cause by either party upon the giving of not less than
one hundred eighty (180) days' written notice by registered mail to the other
party.
(c) TERMINATION FOR CAUSE. Either party may cancel this Agreement at
any time if the other party breaches any term hereof and fails to cure such
breach within ten (10) business days after notice of such breach or if the other
party shall be or becomes insolvent, or if either party makes an assignment for
the benefit of creditors, or if there are instituted by or against either party
proceedings in bankruptcy or under any insolvency or similar law or for
reorganization, receivership or dissolution.
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(d) TERMINATION LIABILITY. Neither party shall be liable in any
manner on account of the termination or cancellation of this Agreement. The
rights of termination and cancellation as set forth herein are absolute. Both
Customer and Manufacturer are aware of the possibility of expenditures necessary
in preparing for performance hereunder and the possible losses and damages which
may occur to each in the event of termination or cancellation. Both parties
clearly understand that neither shall be liable for damages of any kind
(including but not limited to special, incidental or consequential damages) by
reason of the termination or cancellation of this Agreement.
(e) OBLIGATIONS UPON TERMINATION. The termination or expiration of
this Agreement shall in no way relieve either party from its obligations to pay
the other any sums accrued hereunder prior to such termination or expiration.
(f) SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding anything to the
contrary in this Agreement, the following sections shall survive termination of
this Agreement: 1, 5, 6, 7, 8, 9, 10, and 11.
11. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected in
accordance with this Section 11(a) shall be binding upon the parties and their
respective successors and assigns.
(b) SUCCESSORS AND ASSIGNS. Manufacturer or Customer shall not
assign any of its rights, obligations or privileges (by operation of law or
otherwise) hereunder without the prior written consent of the other party, which
shall not be unreasonably withheld, except to a successor entity into which
either party shall have sold or transferred all or substantially all its assets.
Subject to the foregoing, the terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(c) GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Washington, without giving effect to principles of conflicts of law.
(d) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(e) TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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(f) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
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Customer: Metawave Communications Corporation
PO Box 97069
10735 Willows Road NE
Redmond, WA 98073
fax: (425) 702-5971
Attention: VP, Operations
Copy to: General Counsel
Manufacturer: Powerwave Technologies, Inc.
2026 McGaw Avenue
Irvine, CA 92614
fax: (949) 757-6670
Attention: President and Chief Executive Officer
Copy to: Chief Financial Officer
(g) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed
by each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a mutually agreeable
and enforceable replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(h) ENTIRE AGREEMENT. This Agreement is the product of both of the
parties hereto, and constitutes the entire agreement between such parties
pertaining to the subject matter hereof, and merges all prior negotiations and
drafts of the parties with regard to the transactions contemplated herein. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
(i) INDEPENDENT CONTRACTORS. The relationship of Manufacturer and
Customer established by this Agreement is that of independent contractors, and
nothing contained in this Agreement will be construed (i) to give either party
the power to direct and control the day-to-day activities of the other, (ii) to
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking, or (iii) to allow either party to
create or assume any obligation on behalf of the other for any purpose
whatsoever.
(j) FORCE MAJEURE. If the performance of this Agreement or any
obligations hereunder is prevented, restricted or interfered with by reason of
fire or other casualty or accident, strikes or labor disputes, war or other
violence, any law, order, proclamation, regulation, ordinance, demand or
requirement of any government agency, or any other act or condition beyond the
reasonable control of the parties hereto, the party so affected upon giving
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prompt notice to the other parties shall be excused from such performance during
such prevention, restriction or interference.
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The parties have executed this Agreement as of the date first set
forth above.
CUSTOMER: MANUFACTURER:
METAWAVE COMMUNICATIONS POWERWAVE TECHNOLOGIES, INC.
CORPORATION
By: /s/ Robert H. Hunsberger By: /s/ Bruce C. Edwards
----------------------------- -----------------------------
Name: Robert H. Hunsberger Name: Bruce C. Edwards
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Title: Chief Executive Officer Title: President and Chief
-------------------------- --------------------------
Executive Officer
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