EXHIBIT 10.8
[HP LOGO]
ENTERPRISE SYSTEM GROUP
AMERICAS SUPPLY CHAIN
901 PAGE AVE.
FREMONT, CA 94538
Wednesday, October 30, 2002
Mr. Bill Heye CEO and President SBE, Inc.
4550 Canyon Road
San Ramon, CA 94583
RE: Final Proposal dated 10/28/02
Dear Bill,
Thank you for your updated proposal dated October 28, 2002. We have reviewed it
and are ready to execute it as follows:
1. HP agrees to issue a Non-Cancelable Purchase Order, by October 30, 2002 for
the following VCOM deliveries:
a. 281 units by November 15, 2002
b. 281 units on February 1, 2003
2. HP agrees to use best efforts to identify any additional requirements for
VCOM products and provide such requirements to SBE by mid November 2002, or
promptly after HP's customer provides such additional requirements to HP.
In addition HP agrees that after HP has identified any additional
requirements, HP will issue the appropriate Non-Cancelable Purchase Order
for the additional units by January 31, 2003, and take delivery of those
units by May 1, 2003.
3. SBE agrees to sell HP all remaining VCOM units (both the 562 minimum and
"any additional units") at the following price through May 1, 2003.
a. U32887-992: $3,125 Frame Relay, VCOM-34 (iDEN)
b. U25022-A04 $2,860 SS7, VCOM-34 (SuperCell)
c. U40567-A01 $2,825 Token Ring, VCOM-33 (SuperCell)
d. T90944-002 $2,875 SS7, VCOM-34 (Helix)
e. U32031-A03 $2,870 Token Ring, VCOM-33 (Helix)
4. SBE agrees to issue a $447,000 rebate, (via a credit memo), on February 1,
2003. This credit memo can be applied to the payment HP makes for the
February 1, 2003 delivery.
5. Except for the amount in item 4, above, HP agrees to forfeit the remaining
rebate amount of $4,423,000 upon the parties' agreement.
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6. SBE agrees to retain, for production or repair, the VCOM parts and
equipment financed by HP for the products listed in item 3, above, through
October 31st, 2005, unless otherwise notified by HP.
7. TECHNICAL INFORMATION ESCROW: SBE agrees to place, with a mutually
agreeable third party escrow agent, all technical information necessary or
beneficial for the manufacturing of the Products identified in item 3,
above. Such technical information includes all the information listed in
Exhibit A, attached to this amendment, and incorporated by reference
herein, which may include, but is not limited to: a description of the
development system, hardware, software, compilers and the like, sufficient
for manufacturing and support purposes; all proprietary tools, compilers,
interpreters and other materials reasonably necessary to create object
code, hardware, component parts and related documentation for purposes of
manufacturing the Products; a functioning replica of the development
environment; mask work designs; any modifications, enhancements, additions,
code corrections and workarounds.
SBE will further provide HP with all intellectual property rights on a
worldwide, royalty-free, fully-paid up basis, sufficient to assist and
enable HP to make, have made, market, sell or otherwise dispose of such
Products. HP will have immediate rights to access and use this technical
information, documentation and all necessary intellectual property rights
if SBE: i) fails to meet its obligations in items 1, 2, 3, 4, and 6 above,
or any other obligations not superceded by this letter, ii) fails to
fulfill its support obligations and to cure any such failure after written
notification from HP; iii) fails to do business in the ordinary course; iv)
files for relief under the U.S. Bankruptcy Code or a general receiver or
trustee in bankruptcy is appointed for SBE's business or property; v) takes
action under any state insolvency or similar law for purposes of SBE's
bankruptcy, reorganization or liquidation.
8. This Amendment supercedes all previous Agreements and Amendments covering
items 1 through 7, above.
9. The Parties agree to negotiate, in good faith, to have a Services Agreement
in place by December 31, 2002.
Sincerely,
Robbie Stewart
Attachment
AGREED:
SBE, Inc. Hewlett Packard
By: /s/ Kirk Anderson By: /s/ Thomas Fickett
----------------------------------------- -------------------
Name: Kirk Anderson Name: Thomas Fickett
Title: Vice President, Operations Title: NED Controller
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Date: 10/30/02 Date: 10/30/02
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EXHIBIT A
INTELLECTUAL PROPERTY REQUIREMENTS
HP and SBE agree that the following are the minimal requirements that would
enable HP to manufacture the product(s) currently provided by SBE and addressed
in item 7, above.
A. Functional specification
1. Schematic database (electronic) & support files:
- Schematic sheets/pages
- Symbols (including vendor libraries)
- Netlist/output files - Configuration files
- definition of required environment for modifying, recompiling,
and verifying design changes including hardware platforms,
software, software revision levels, etc.
2. Programmable device data & support files for all programmable
devices (e.g. Flash, PLDs, SEEROMs, FPGA's, etc.)
- Design specifications - Source code (or source data) -
Assembled object code
- Test vectors and Test vector source code
- Definition of required environment for modifying,
recompiling, and verifying source or test vector changes
including hardware platforms, software, software revision
levels, etc.
3. Design documentation for SBE custom devices (ASICs, etc.) -
Design specifications
- Users guides
- Timing data
- List of known bugs and workarounds
B. PWB database (electronic) & support files:
1. Board file
2. Symbols/footprints/pad stacks
3. Configuration files
4. Fabrication files
5. Gerber files
6. Definition of required environment for modifying, recompiling, and
verifying design changes including hardware platforms, software,
software revision levels, etc
C. Manufacturing Bill of Material (including approved vendor list and
component specifications)
1. Test specification
2. Design verification/test results (including agency approvals)
3. Test fixtures (ATE or other)
4. Test software (source and executable, and all support/configuration
files required for compiling, etc.).
- definition of required environment for modifying, recompiling,
and verifying design changes including hardware platforms,
software, software revision levels, etc.
5. Driver software (source and executable), and all support/configuration
files required for compiling, etc.)
- definition of required environment for modifying, recompiling, and
verifying design changes including hardware platforms, software,
software revision levels, etc
6. Database of problem reports and fixes (Hardware and Software)
7. Historical Field Return and defect data.
8. Where possible data should be provided in paper and electronic format
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