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AMENDED AND RESTATED SUPPLY AGREEMENT
This Amended and Restated Supply Agreement (the "Agreement") is made
effective as of January 1, 2000, by and between OMM, Inc., a Delaware
corporation, having its principal place of business at 9410 Carol Park Drive,
San Diego, California ("OMM"), and, Rockwell Science Center, LLC, a corporation
having its principal place of business at 1049 Camino Dos Rios, Thousand Oaks,
CA 91360 ("RSC").
WHEREAS, OMM desires to have certain products of its design manufactured
by RSC for sale to OMM; and
WHEREAS, RSC has the capability of manufacturing OMM's products and
desires to do so for sale to OMM;
THEREFORE, in consideration of the foregoing and the covenants contained
below, the parties agree as follows:
SECTION 1
DEFINITIONS
1.1 "Products" shall mean processed silicon wafers containing
microlenses meeting the specifications for either [REDACTED], as set forth in
document [REDACTED], Microlens Specifications, attached as Exhibit A to the
Letter dated 15 September 2000 (the "Letter").
1.2 "New Products" shall mean microlens wafers other than those
described in Section 1.1 which are manufactured using the same process and
design rules used for the products described in Section 1.1 and upon which the
parties reach agreement regarding the Specifications and Acceptance Tests for
such New Products, which Specification and Acceptance Tests are to be set forth
by amendment to Exhibit A and Exhibit F attached to the Letter.
1.3 "Updates" shall mean changes to Products or New Products that do not
substantially increase the cost base of the respective Product or New Product
and that result in a new version of the Products or New Products with improved
performance and/or minor changes in functionality over previous versions of the
Products or New Products.
1.4 "All Products" shall mean Products, New Products and Updates.
1.5 "Specifications" shall mean the specifications for Products of
[REDACTED] as set forth in Exhibit A attached to the Letter, and any
specifications for New Products as may be included by amendment to Exhibit A
attached to the Letter from time to time by the mutual agreement of the parties.
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1.6 "Acceptance Tests" shall mean those requirements set forth in
Exhibit F attached to the Letter for Products, and any requirements for New
Products as may be included by amendment to Exhibit F attached to the Letter
from time to time by mutual agreement of the parties.
1.7 "Effective Date" shall mean the date set forth in the first sentence
of this Agreement.
1.8 "Term" shall mean the Effective Date of this Agreement until the
earliest of:
(a) the date of Termination by one of the parties in
accordance with Section 11 of this Agreement.
(b) the date of Expiration of this Agreement in accordance
with Section 11 of this Agreement
1.9 "Affiliates of RSC" shall mean domestic or foreign corporations or
entities which directly or indirectly control, are controlled by, or are under
common control with RSC. For purposes of this Agreement, "control" shall mean
the direct or indirect ownership of at least 40% of the outstanding shares or
other voting rights entitling the holder to vote in the election of the board of
directors. Unless otherwise specified under this Agreement, RSC shall have the
power, and is hereby permitted, to exercise all of its benefits, rights and
privileges under this Agreement by or through the acts of Affiliates of RSC, and
all such acts shall be treated as acts of RSC.
1.10 "Wafers" shall mean 4" wafers unless otherwise noted.
1.11 "Letter" shall refer to a letter of agreement dated 15 September
2000 wherein the price and volume specifics have been established.
SECTION 2
MANUFACTURING
2.1 Manufacturing. Subject to qualification pursuant to Section 6 below,
RSC agrees to manufacture and sell All Products, and OMM agrees to purchase All
Products from RSC, on the terms and conditions set forth herein.
2.2 Location. Manufacture of All Products under this agreement shall
take place at RSC's facility in Thousand Oaks, California or at any other
location to be determined at the sole discretion of RSC.
2.3 Masks and Other Tooling. RSC shall obtain all masks and other
tooling necessary to manufacture All Products.
2.4 RSC shall have the right to satisfy any OMM requirement by shipping
either 4 inch wafers, or 6 inch wafers, and RSC shall make the decision as to
which quantity and size shall be provided. If OMM needs notification in advance
as to which size is going to be provided in a given shipment, RSC will provide
such information.
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2.5 [REDACTED]
2.6 [REDACTED]
SECTION 3
VOLUME AND SUPPLY
3.1 Volume.
OMM will purchase All Products in the total quantities per the schedule
set forth in Exhibit H attached to the Letter. Minimum Purchase - Beginning with
[REDACTED], OMM will buy at least a total quantity of wafers set forth in
Exhibit H attached to the Letter of All Products, which may include shipments of
multiple designs, per month from RSC for so long as OMM is purchasing or
manufacturing wafers and RSC elects to supply such wafers.
3.2 Production Capacity. RSC will maintain a production capacity of at
least twice OMM's purchases for the previous quarter, up to a maximum of
[REDACTED].
3.3 Supplies in Stock. During the term of this Agreement, RSC shall
maintain a supply of all single source supplies, [REDACTED], sufficient for
production of the volume of wafers forecast by OMM in the following three
months, up to a maximum of [REDACTED].
3.4 Supply Assurance. RSC shall maintain a one-week on-call service
agreement on all critical process equipment, [REDACTED]. In the alternative, RSC
may elect to assure supply by maintaining in stock a "sufficient supply," of
wafers meeting the specifications set forth in Exhibit A attached to the Letter,
or any amendments thereto. For the purposes of this Section 3.4, a "sufficient
supply" is defined as an inventory equal to the volume of wafers delivered in
the previous quarter.
3.5 Supply Arrangements
(a) [REDACTED](b) Exception to Limitation. Notwithstanding Section 3.5(a),
nothing in this Agreement shall prohibit RSC from [REDACTED] (c)
Modification.[REDACTED]
SECTION 4
PRICE AND PAYMENT
4.1 Price. It is recognized that the unit prices established in Exhibit
I attached to the Letter only apply to Production Lots for [REDACTED] of Exhibit
A attached to the Letter and Updates thereto that are manufactured using
processes and materials which are similar to the existing Product and which do
not significantly increase RSC's cost base. [REDACTED] of Exhibit A attached to
the Letter as well as some Updates and New Products may require the negotiation
of different unit prices. OMM shall purchase [REDACTED] of Exhibit A attached to
the Letter manufactured under this Agreement, on a price per wafer basis, as set
forth in Exhibit I as attached to the Letter.
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4.2 Volume Production. Any pricing deviations for volume production
shall be set forth in Exhibit I as attached to the Letter.
4.3 Yield. The parties understand that the price per wafer shall be
fixed and shall not vary as a function of the number of die per wafer meeting
the Acceptance Tests set forth in Exhibit F attached to the Letter. However, RSC
agrees that it shall on a continuing basis work with OMM to improve the yield of
good die per wafer for All Products produced under this Agreement.
4.4 Payment. Payment shall be made net forty-five (45) days following
receipt of All Products by OMM.
4.5 Taxes. OMM shall pay, in addition to the prices quoted or invoiced,
the amount of any present or future customs duties or sales, use, excise or
other similar tax applicable to the sale of All Products covered by this
Agreement, or OMM shall supply RSC with an appropriate tax exemption
certificate.
SECTION 5
FORECASTS AND ORDERS
5.1 Twelve-Month Rolling Forecast. During the term of this Agreement,
once every [REDACTED] months, OMM shall provide to RSC a twelve-month (12-month)
forecast in writing ("Forecast Report") setting forth its estimated requirements
for shipment by month for All Products. RSC shall be obligated to accept all
purchase orders resulting from such forecasts provided that volume changes are
within the limits described in Section 5.2 and subject to the limitations of
Section 3.2.
5.2 Advance Notice of Volume Changes. OMM will provide written notice at
least [REDACTED] in advance for purchases that are more than fifty percent (50%)
above or below the estimate for any month set forth in the most recent Forecast
Report. OMM will provide written notice at least [REDACTED] in advance of the
anticipated first month for purchases to exceed [REDACTED]. RSC may choose to
produce, but shall not be obligated to produce more than [REDACTED].
5.3 Orders. OMM shall issue a purchase order every [REDACTED] with
deliveries required starting [REDACTED] after RSC receipt of order. All such
purchases shall be initiated by OMM's issuance of written purchase orders sent
via U. S. mail. Such purchase orders shall state unit quantities, unit
descriptions, design quantities, requested delivery dates, and shipping
instructions. The acceptance by RSC of an order shall be effective only upon
written acknowledgement thereof by RSC.
5.4 Minimum Orders. OMM shall order, and RSC shall be obligated to
supply, a minimum quantity of All Products in each quarter of 2000 through
[REDACTED], as set forth in Exhibit H attached to the Letter. . The quantities
specified under this Section 5.4 are minimums only, and RSC shall use its best
efforts, consistent with the other provisions of this Agreement, to fulfill OMM
orders for additional All Product ordered by OMM.
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5.5 Lots. (a) Engineering Lots. OMM may order engineering lots to be
developed by RSC [REDACTED] For purposes of this agreement, an engineering lot
shall contain the number of wafers [REDACTED](b) Production Lots.[REDACTED]
SECTION 6
QUALIFICATION AND QUALITY CONTROL
6.1 New Products. OMM shall be entitled to add New Products and to make
Updates to existing Products upon notice to RSC and delivery of such New Product
or Update specifications.
6.2 Qualification. All Products to be manufactured and manufacturing
processes to be used under this Agreement are subject to qualification by OMM
and RSC pursuant to qualification criteria and procedures set forth in Exhibit D
attached to the Letter ("Qualification").
6.3 Changes. After the Qualification is successfully completed for any
Product to be manufactured under this Agreement, RSC may make design or process
changes, provided that the resulting Products meet the specifications described
in Exhibit A attached to the Letter, and any such changes will be subject to
qualification according to criteria mutually acceptable to RSC and OMM.
6.4 Inspection Requirements. Throughout the term of this Agreement, OMM
reserves the right, upon five (5) days written notice, to conduct inspections
during normal business hours, on a quarterly basis and from time to time, of the
facility in which RSC is manufacturing All Products during normal business hours
for the purpose of ensuring progress towards certification pursuant to the
Qualification, as set forth in Exhibit D attached to the Letter, and ensuring
compliance with the other requirements of this Agreement.
SECTION 7
OTHER TERMS AND CONDITIONS
7.1 Controlling Document. The terms and conditions of this Agreement
shall control all sales of All Products hereunder, and any additional or
different terms or conditions in either party's purchase order, acknowledgement,
or similar document shall be of no effect unless mutually agreed upon.
7.2 Delivery. RSC shall deliver All Products at times specified in the
purchase orders placed in accordance with the procedures described in Section 5
above.
7.3 Shipping. All Products delivered pursuant to the terms of this
Agreement shall be suitably packed by RSC for shipment in protective containers,
in a manner at least as protective as the manner set forth in OMM's Shipping
Guidelines (the "Shipping Guidelines"), as set forth in Exhibit E attached to
the Letter, marked for shipment at OMM's address set forth above or specified in
OMM's purchase order, and delivered to a carrier or forwarding agent chosen by
OMM. Should OMM fail to designate a carrier, forwarding agent or type of
conveyance, RSC shall make such designation in conformance with its standard
shipping practices. Shipment will be F.O.B. shipping point, Thousand Oaks,
California, at which time risk of loss and title shall pass to OMM, and all
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freight, insurance and other shipping expenses, as well as any special packing
expenses, shall be borne by OMM, provided however, that such packing by RSC is
suitable and adequately protective to meet or surpass the Shipping Guidelines.
All shipping containers to be returned to RSC as soon as practicable (on a
monthly basis) to permit their reuse in shipping subsequent Product.
7.4 Inspection and Acceptance. Product lots delivered by RSC will be
subject to incoming inspection and test by OMM, and in the event any lot is
found to be incomplete, fail visual inspection, or include wafers which fail
tests specified by OMM (the "Acceptance Tests"), as set forth in Exhibit F
attached to the Letter, OMM shall have the right to reject such lot or wafers
within thirty (30) days after delivery and return it to RSC, at OMM's expense,
and require RSC to provide, at RSC's option, a full refund, a credit or a
replacement Product. Rejected wafers shall not be counted towards the minimum
purchase obligation set forth in Section 5.4.
7.5 Warranty.
(a) RSC warrants that at the time of delivery:
(i) All Production Lots of All Products will have been subjected to and
will satisfactorily meet the specifications as identified in Exhibit A attached
to the Letter; and
(ii) All Production Lots of All Products will be within the applicable
test parameters set forth in Exhibit F attached to the Letter.
7.6 Right of First Refusal. [REDACTED]
SECTION 8
TECHNOLOGY
8.1 Technology Ownership. OMM shall retain ownership of all designs and
other proprietary information and materials provided to RSC for purposes of
manufacturing All Products. OMM authorizes RSC to use such proprietary
information supplied by OMM under this Agreement only for the purpose of
manufacturing All Products for sale to OMM in accordance with the terms of this
Agreement. RSC owns and shall retain sole ownership of all process and
manufacturing technology and other proprietary information utilized or developed
in connection with the manufacture of All Products on the effective date of this
Agreement. RSC owns and shall retain sole ownership of all process and
manufacturing technology and other proprietary information developed by RSC in
connection with the manufacture of All Products during the course of this
Agreement.
8.2 Second Source Option. Provided that OMM has fully complied with the
minimum purchase requirements set forth in Section 5.4, at any time during the
Term of this Agreement at the sole discretion of OMM, RSC shall either license
to OMM, or shall license to another entity to be identified by OMM at a later
time at OMM's option, (the "Process Licensee"), all microlens fabrication
process technology and all associated intellectual property rights owned by RSC
and necessary to the manufacture of All Products on the effective date of such
license (the "Process Know-How"). OMM shall give RSC written notice of its
intent to exercise this clause.
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8.3 Licenses.
[REDACTED]
8.4 Right to Bid. OMM shall give RSC the right to bid on all production
requirements. OMM shall consider such bid in good faith on the basis of
competitive pricing, quality systems and capacity.
8.5 Process License Agreement Terms. Any Process License Agreement shall
contain terms consistent with the following, and shall contain an exclusivity
clause similar to that contained within Section 3.5 that shall be negotiated in
good faith by and is agreeable to both RSC and the Process Licensee:
(a) "Process Technology" shall mean all microlens fabrication
process technology owned by RSC on the date that the Process License
Agreement is executed and necessary to the manufacture of Licensed
Products.
(b) "Licensed Products" shall mean Products, New Products and
Updates as those terms are defined in this Supply Agreement.
(c) "Licensed Field" shall mean the manufacture of Licensed
Products within exclusivity guidelines that shall be negotiated in good
faith by and agreeable to both RSC and the Process Licensee.
(d) "Term of the Process License Agreement" shall mean the
period beginning on the effective date of the Process License and ending
on a date, which shall be after the date of termination of this Supply
Agreement and which shall be negotiated in good faith by and agreeable
to RSC and the Process Licensee.
(e) Grant. During the Term of this Process License Agreement,
RSC grants the Process Licensee the exclusive right under the Process
Technology to make, use and sell Licensed Products in the Licensed
Field, subject to the following terms:
(i) RSC shall retain the right to practice the Process
Technology for purposes within the limitations set forth in
Section 3.5.
(ii) [REDACTED]
(f) Technology Transfer Costs. OMM shall not be required to pay
RSC for the costs associated with the transfer of the Process Technology
to the Process Licensee, provided such transfer is made to a
technologically sophisticated company, and provided the demands for
technology transfer are considered reasonable by industry standards.
(g) Royalty Payments. [REDACTED]
8.6 Third Party Rights [REDACTED]
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SECTION 9
INTELLECTUAL PROPERTY INDEMNITY
9.1 RSC IP Indemnity Obligation. With respect to All Products that are
supplied by RSC to OMM hereunder, RSC (the "Indemnifying Party" for the purposes
of this Section 9.1) agrees to defend, indemnify and hold harmless OMM and OMM's
customers and affiliates, including OMM's officers, directors and employees
(together with OMM, the "Indemnified Party" for the purposes of this Section
9.1) against any costs, expenses, damages, judgments, settlements and
liabilities of any kind, including reasonable attorneys' fees and costs incurred
by or awarded against the Indemnified Party, directly allocable to any patent
infringement, copyright infringement, mask work right, trade secret or wrongful
use of proprietary information claim brought against the Indemnified Party; but
only;
(a) to the extent such claim(s) are based solely on RSC's
practice of microlens fabrication process technology and associated
intellectual property rights owned by RSC and necessary to the
manufacture of All Products used to make such Product, New Product or
Update;
(b) to the extent that such claim(s) are not based on designs or
other proprietary information and materials provided to RSC by OMM;
(c) to the extent such claims do not arise from the use by or
sale of stand-alone Products, New Products or Updates to any party other
than OMM.
9.2 OMM IP Indemnity Obligation. With respect to all products
manufactured, used, sold or otherwise disposed of by OMM, OMM's affiliates or
OMM's customers that contain any Product, New Product or Update, OMM (the
"Indemnifying Party" for the purposes of this Section 9.2) agrees to defend,
indemnify and hold harmless RSC and Affiliates of RSC, including RSC's officers,
directors and employees (together with RSC, the "Indemnified Party" for the
purposes of this Section 9.2) against any costs, expenses, damages, judgments,
settlements and liabilities of any kind, including reasonable attorneys' fees
and costs incurred by or awarded against the Indemnified Party, directly
allocable to any patent infringement, copyright infringement, mask work right,
trade secret or wrongful use of proprietary information claim brought against
the Indemnified Party; but only:
(a) to the extent such claim(s) arise from RSC's use of OMM's
designs or other information provided by OMM; and
(b) to the extent that such claim(s) are not based on the
Process Know-How provided by RSC.
9.3 Limitation. The Indemnifying Party's obligations under Section 9.1
or 9.2 shall apply only if (i) the Indemnified Party promptly notifies the
Indemnifying Party in writing of any existence of any claim within the scope of
this Section; (ii) the Indemnifying Party has exclusive control of the defense
of such claim and all negotiations relating to the settlement of any such claim,
provided that
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the Indemnifying Party shall not enter into any settlement of any such claim on
behalf of the Indemnified Party without first obtaining the written consent of
the Indemnified Party to the specific terms of such settlement; and (iii) the
Indemnified Party provides all reasonable assistance in connection with the
defense thereof (at the Indemnifying Party's expense, with the exception of the
value of the time of the Indemnified Party's employees, which shall be borne by
the Indemnified Party).
9.4 THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION (EXPRESS,
STATUTORY, IMPLIED OR OTHERWISE) OF EACH INDEMNIFYING PARTY TO THE INDEMNIFIED
PARTY HEREUNDER WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS
THEREFOR.
SECTION 10
CONFIDENTIALITY
10.1 Confidential Information. All information disclosed by the parties
under this Agreement and in performing this Agreement shall be kept in
confidence as "Confidential Information" as defined in the Mutual Confidential
Information Exchange Agreement by and between RSC and OMM, dated November 15,
1998, as amended on February 2, 2000, and attached hereto as Exhibit A. In
addition, during the Term of this Agreement, and for three years thereafter, OMM
agrees to keep confidential any and all Confidential Information acquired in any
manner from RSC, including all Confidential Information which might be exposed
to OMM or its agents while on RSC's premises.
10.2 Agreement Confidential. For a period of five years from the
Effective Date of this Agreement, (i) neither party shall disclose to any other
party the existence or terms of this Agreement and (ii) RSC shall not disclose
to any other party the existence or nature of its relationship with OMM,
including by name or by description. Furthermore, RSC shall control access
within RSC to such information concerning the existence and nature of its
relationship with OMM on a "need-to-know" basis only. For the purpose of this
section only, "other party" shall not include Affiliates of RSC. Exceptions to
this confidentiality may be made by mutual agreement.
SECTION 11
TERM AND TERMINATION
11.1 Expiration. This Agreement shall remain in full force and effect
until six months after RSC receives its final Purchase Order from OMM, unless
otherwise terminated earlier as provided below.
11.2 Termination for Failure to Cure for Material Breach. If either
party breaches any material term or condition of this Agreement and fails to
cure that breach within thirty (30) days after receiving written notice of the
breach, the other party shall have the right to terminate this Agreement, on
written notice, at any time after the end of such thirty (30) day period.
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11.3 Termination for Failure to Agree on Price. If, on or before the
commencement of each year after [REDACTED], the parties are unable to agree on
prices for All Products to be delivered during such year as contemplated in
Sections 4 and 5 above, within thirty days of receiving written notice, either
party shall have the right to terminate this Agreement.
11.4 Termination for Insolvency. If either party becomes the subject of
a voluntary or involuntary petition in bankruptcy or of any proceeding relating
to insolvency, receivership, liquidation, or composition for the benefit of
creditors, if that petition or proceeding is not dismissed with prejudice within
sixty (60) days after filing, the other party may terminate this Agreement on
thirty (30) days' notice.
11.5 Purchase of Supplies. Upon termination or expiration of this
Agreement, OMM agrees to purchase existing supplies as described in Section 3.3
and 3.4 and agrees to assume the financial liability associated with all
outstanding purchase orders for services as described in Section 3.4.
11.6 Survival of Provisions. The rights and obligations of the parties
pursuant to Sections 8.1, 8.4, 9, 10, 12 and 13 shall survive the termination,
of this Agreement. Provided that OMM has [REDACTED] and provided that RSC has
not terminated this Agreement under section 13 for OMM's material breach or
insolvency, the rights and obligations of the parties pursuant to Sections 8.2,
8.3, 8.5 and 8.6 of this Agreement shall also survive termination or expiration
of this Agreement.
SECTION 12
LIMITATION OF LIABILITY
12.1 Consequential and Incidental Damages. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES,
HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THIS
AGREEMENT OR THE DESIGNS, PRODUCTS, NEW PRODUCTS, UPDATES, MANUFACTURING
PROCESSES, INFORMATION OR OTHER TECHNOLOGY PROVIDED PURSUANT TO THIS AGREEMENT.
12.2 Warranties. OMM ACKNOWLEDGES AND AGREES THAT RSC MAKES NO
REPRESENTATIONS AND EXTENDS NO WARRANTIES, GUARANTEES, CONDITIONS OR COVENANTS
OF ANY KIND AS TO THE MARKETABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
OTHER ATTRIBUTES OF ALL PRODUCTS SUPPLIED UNDER THIS AGREEMENT, WHETHER EXPRESS
OR IMPLIED. EXCEPT AS SET FORTH IN SECTION 9.1, RSC ASSUMES NO RESPONSIBILITY
WHATEVER WITH RESPECT TO THE USE, SALE OR OTHER DISPOSITION BY OMM OR ITS
CUSTOMERS OF ANY PRODUCT, NEW PRODUCT OR UPDATE. Nothing in this Agreement shall
be construed as:
(a) a warranty or representation that anything made, used,
supplied sold or otherwise disposed of under this Agreement is or will
be free from infringement of patents or other intellectual property;
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(b) an obligation to furnish any manufacturing or technical
information other than as stated in Section 8 herein;
(c) an implied license to any Process Technology, patent, trade
secret or know-how; Nothing in this Agreement shall limit RSC's right to
bring an infringement, misappropriation or other claim based on other
patents or know-how, including presently existing and future patents and
know-how.
NOTHING IN THIS SECTION 12.2 SHALL NEGATE NOR DIMINISH RSC'S INDEMNIFICATION
OBLIGATION UNDER SECTION 9.1.
12.3 Limitation of Liability. Because All Products supplied hereunder
are being combined with other components and sold by OMM as a finished product,
which process is completely beyond RSC's control, it is expressly agreed that
the liability of RSC shall hereunder shall extend no further than to furnish OMM
with All Products meeting the Specifications set forth in Exhibit A attached to
the Letter and Acceptance Tests set forth in Exhibit F attached to the Letter.
Except as set forth in Section 9.1, in no event shall RSC be liable for any loss
or damages of any kind, direct or consequential, arising from the storage or use
of All Products by OMM, OMM's affiliates, OMM's customers. OMM agrees that RSC
shall not have any liability for any direct, incidental or consequential
damages, for product liability claims, nor for any other liability arising out
of OMM's or any Process Licensee's manufacture, use, distribution or sale of All
Products other than as expressly stated in Section 9.1.
SECTION 13
MISCELLANEOUS
13.1 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California.
13.2 Arbitration. Any dispute or claim arising out of or in connection
with this Agreement shall be finally settled by binding arbitration in San
Diego, California under the rules of arbitration of the International Chamber of
Commerce by one arbitrator appointed in accordance with said rules. Judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to
any court of competent jurisdiction for injunctive relief without breach of this
arbitration provision.
13.3 Assignment. Neither party may assign or delegate this Agreement or
any of its licenses, rights or duties under this Agreement without the prior
written consent of the other except OMM may assign this Agreement to a person or
entity into which it has merged or which has otherwise succeeded to all or
substantially all of its business and assets, and which has assumed in writing
or by operation of law its obligations under this Agreement.
13.4 Authority. Each party represents that all corporate action
necessary for the authorization, execution and delivery of this Agreement by
such party and the performance of its obligations hereunder has been taken.
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13.5 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand, by messenger or by
telecommunication, addressed to the addresses first set forth above or at such
other address furnished with a notice in the manner set forth herein. Such
notices shall be deemed to have been served when delivered, or if delivery is
not accomplished by reason of some fault of the addressee, when tendered. Such
notices shall be addressed to the following parties:
Rockwell Science Center OMM, Inc.
P.O. Box 1085 9410 Carroll Park Drive
Thousand Oaks, CA 91358-0085 San Diego. CA 92121
Attention: Mel Le Vine Attention: Jim Hartman
13.6 Export Controls. It is understood by both parties that the products
herein are subject to export regulations by agencies of the United States
government, including the United States Department of Commerce. OMM agrees to
comply with all applicable laws and regulations of the United States regarding
the export of products under this Agreement. Further, OMM shall notify any
person, firm or entity obtaining any RSC product from OMM of the need to comply
with such laws or regulations.
13.7 Partial Invalidity. If any paragraph, provision, or clause thereof
in this Agreement shall be found or be held to be invalid or unenforceable in
any jurisdiction in which this Agreement is being performed, the remainder of
this Agreement shall be valid and enforceable.
13.8 Counterparts. This Agreement may be executed in two (2) or more
counterparts, all of which, taken together, shall be regarded as one and the
same instrument.
13.9 Waiver. The failure of either party to enforce at any time the
provisions of this Agreement shall in no way be constituted to be a present or
future waiver of such provisions, nor in any way affect the validity of either
party to enforce each and every such provision thereafter.
13.10 Entire Agreement. The terms and conditions herein contained
constitute the entire agreement between the parties and supersede all previous
agreements and understandings, whether oral or written, between the parties
hereto with respect to the subject matter hereof and no agreement or
understanding varying or extending the same shall be binding upon either party
hereto unless in a written document signed by the party to be bound thereby.
13.11 Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.12 Force Majeure. Neither party will be liable in damages for failure
to deliver or for delay in delivery of any items, services or technology
required hereunder arising out of causes beyond its reasonable control
including, but not limited to, acts of God or of a public enemy, acts of any
Government authority or court of law, fires, floods, unusually severe weather,
epidemics, quarantine restrictions, strikes, labor disputes or shortages of
labor, freight embargoes, or the other party's failure to make payment or
perform its obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
By: /s/ ANIS HUSAIN By: /s/ MEL LE VINE
--------------------------------- ---------------------------------
Name: Anis Husain Name: Mel Le Vine
------------------------------- -------------------------------
Title: Chairman & CTO Title: Director of Contracts
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EXHIBIT A
Mutual Confidential Information Exchange Agreement
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FIRST AMENDMENT TO MUTUAL CONFIDENTIAL
INFORMATION EXCHANGE AGREEMENT
BETWEEN ROCKWELL SCIENCE CENTER
AND
OPTICAL MICRO-MACHINES, INC.
This Amendment to the Mutual Confidential Information Exchange Agreement
("MCIEA") dated November 15, 1998 by and between RSC and Optical Micro-Machines,
Inc., is entered into as of this 2nd day of February, 2000, by and between
Rockwell Science Center, LLC, a Delaware corporation, having its principal
offices at 1049 Camino Dos Rios, P.O. Box 1085, Thousand Oaks, California
91358-0085, USA (hereinafter "RSC"), and Optical Micro-Machines, Inc., having
its principal place of business at 9645 Scranton Road, Suite 140, San Diego, CA
92121 ("OMM").
1. BACKGROUND
1.1. WHEREAS RSC and OMM have entered into a Mutual Confidential
Information Exchange Agreement dated November 15, 1998
("MCIEA");
1.2 WHEREAS RSC and OMM desire to extend such MCIEA;
1.3 NOW, THEREFORE, the parties agree that the MCIEA be amended as
follows:
2. AMENDMENTS
2.1. Delete "Expiration Date: 11/15/99" and add "Expiration Date:
11/15/2000" so that the fifth paragraph on page 1 of the
Agreement reads as follows:
Commencement Date: 11/15/98
Expiration Date: 11/15/2000
Except as hereby amended, the MCIEA shall continue in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the 2nd day of February 2000
OPTICAL MICRO-MACHINES, INC. ROCKWELL SCIENCE CENTER, LLC
By: /s/ Steffen Gloeckner By: /s/ William J. Gunning
--------------------------------- ---------------------------------
Name: Steffen Gloeckner Name: William J. Gunning
Title: Chief Optical Designer Title: Director, Display Sciences
Date: February 3, 2000 Date: February 2, 2000
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MUTUAL CONFIDENTIAL INFORMATION EXCHANGE AGREEMENT
OPTICAL MICRO's Mailing Address:
Optical Micro-Machines, Inc.
6160 Lusk Blvd.
Suite C-105
San Diego, California 92121
ROCKWELL's Mailing Address:
Rockwell International Corporation
Rockwell Science Center, LLC
1049 Camino Dos Rios
P.O. Box 1085
Thousand Oaks, CA 91358
Commencement Date: 11/15/98
Expiration Date: 11/15/99
This Agreement is entered into by and between Rockwell International
Corporation, incorporated under the laws of the State of Delaware, (hereinafter
ROCKWELL) and Optical Micro-Machines, Inc. (hereinafter OPTICAL MICRO). Unless
otherwise specified hereunder, ROCKWELL and OPTICAL MICRO shall include their
respective Subsidiaries as hereinafter defined by Section 6.0. This Agreement is
necessary to permit, for a limited period of time, OPTICAL MICRO as disclose to
ROCKWELL and ROCKWELL to disclose to OPTICAL MICRO, information considered to be
confidential to the disclosing party. The purpose of the exchange of such
information is to discuss potential future relationships between ROCKWELL and
OPTICAL MICRO relative to microlens data, specifications and processing.
1.0 CONFIDENTIAL INFORMATION
1.1 "ROCKWELL Confidential Information" will mean all information or
items identified by ROCKWELL as confidential and disclosed by
ROCKWELL to OPTICAL MICRO relating to ROCKWELL's past, present
and future research, development and business activities
including, but not limited to microlens data, specifications and
processing.
1.2 "OPTICAL MICRO Confidential Information" will mean all
information or items identified by OPTICAL MICRO as confidential
and disclosed by OPTICAL MICRO to ROCKWELL relating to OPTICAL
MICRO's past, present and future research, development and
business activities including, but not limited to microlens
data, specifications and processing.
2.0 CONFIDENTIAL INFORMATION EXCHANGE
2.1 Confidential Information may be disclosed by one party to the
other party during the term of this Agreement. Confidential
Information may be conveyed by the parties in visual,
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written, oral, printed, or machine-readable form. All
disclosures of information by one party to the other party will
be deemed to be confidential at the time of disclosure.
2.2 When Confidential Information is disclosed in written form and
accepted, the writing must contain an appropriate legend, such
as "Confidential Information."
2.3 When information is disclosed in oral form by a disclosing party
and accepted by the receiving party, the oral information must
be reduced to a writing and delivered in written form to the
receiving party within 30 days after the date of the disclosure
or the information will not be Confidential Information.
2.4 Upon the request of either party, the other party will, at its
own expense, immediately return or confirm the destruction of
all Confidential Information.
3.0 CONFIDENTIALITY OBLIGATIONS
3.1 Subject to the provisions of Sections 4.0 and 5.0, for a period
of 5 years measured from the date of termination or, if the
Agreement is not terminated, the date of expiration, the
receiving party agrees to use the same care and discretion to
avoid disclosure, publication, or dissemination of disclosed and
accepted Confidential Information as the receiving party employs
with similar information of its own which it does not desire to
have published, disclosed, or disseminated. The receiving party
may use the disclosing party's Confidential Information only for
the purpose stated in this Agreement.
3.2 Following the period of confidentiality as specified in Section
3.1, no obligation is assumed by, or is to be implied against
the receiving party with respect to such Confidential
Information and such information will be considered
non-confidential.
3.3 The receiving party may disclose the disclosing party's
Confidential Information to its employees and employees of its
parent and Subsidiary companies with a business need-to-know;
and/or only with the disclosing party's prior consent, third
parties such as consultants, agents, and affiliates. Before
disclosure to any above employee and/or third parties, the
receiving party shall have a written agreement with such
employee and/or third party sufficient to require that the
employee and/or third party will treat Confidential Information
in accordance with this Agreement.
4.0 PERMISSIBLE DISCLOSURE
Disclosure of Confidential Information will not be precluded if such
disclosure is:
(a) in response to a valid order of a court or governmental
body of the United States or any political subdivision
thereof; provided, however, that the disclosing party
will first have made reasonable effort to obtain a
protective order requiring that the Confidential
Information so disclosed be used only for the purpose
for which the order was issued;
(b) otherwise required by law; or
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(c) necessary to establish the disclosing party's rights
under this Agreement.
5.0 NON-CONFIDENTIAL INFORMATION
Notwithstanding any other provision of this Agreement, the
confidentiality obligations specified in Section 3.0 will not apply to any
received Confidential Information which:
(a) is already in the possession of the receiving party or
any Subsidiary of that party without obligation of
confidence, prior to receipt from the disclosing party;
(b) is independently developed by the receiving party or any
Subsidiary of that party;
(c) is or becomes publicly available without breach of this
Agreement;
(d) is rightfully received by the receiving party or any
Subsidiary of that party from a third party;
(e) does not have an appropriate legend as set forth in
Section 2.2; or
(f) is released for disclosure by one party with the other
party's written consent.
6.0 SUBSIDIARY
"Subsidiary" shall mean a corporation, company or other entity;
(a) more than fifty percent (50%) of whose outstanding
shares or securities (representing the right to vote for
the election of directors or other managing authority)
are, or
(b) which does not have outstanding shares or securities, as
may be the case in a partnership, joint venture or
non-incorporated association, but more than fifty
percent (50%) of the ownership interest representing the
right to make the decisions for such corporation,
company or other entity is; now or hereafter, owned or
controlled, directly or indirectly, by a party hereto,
but such corporation, company or other entity shall be
deemed to be a Subsidiary only so long as such ownership
or control exists.
7.0 TERM OF AGREEMENT
The term of this Agreement will begin on the Commencement Date and will
expire on the Expiration Date, unless terminated earlier by either party. Either
party may terminate this Agreement prior to the Expiration Date with or without
cause for any reason by giving at least fifteen (15) days written notice to the
other party.
8.0 OTHER INTELLECTUAL PROPERTY RIGHTS
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No license or immunity is granted by this Agreement by either party to
the other, either directly or by implication, estoppel, or otherwise, under any
patents, copyrights, trademarks, or mask works, or any trade secrets or know-how
other than that disclosed hereunder. The disclosure of information hereunder
will not constitute any representation, warranty, assurance or guarantee, by
either party to the other, with respect to the infringement, misappropriation or
violation of any of the intellectual property rights of third parties.
9.0 RELATION WITH OTHER AGREEMENTS/DISCLAIMERS
9.1 This Agreement will be the complete statement of the rights and
obligations of the parties hereto with respect to Confidential
Information disclosed or received, solely under this Agreement.
This Agreement may be modified only by written amendments signed
by authorized representatives of OPTICAL MICRO and ROCKWELL.
9.2 Each party provides information on an "AS IS" basis.
10.0 GENERAL PROVISIONS
10.1 Each party agrees that this Agreement will not restrict the
right of either party to enter into agreements with other
parties for the same or similar efforts, or to make, have made,
use, sell, buy, develop, market, or otherwise transfer any
products or services now or in the future. Each party agrees
that this Agreement will not restrict the right of either party
to assign any of its employees, consultants or other
representatives to any design or development project in the
future, provided that the party complies with its obligations
under this Agreement.
10.2 Unless required by law, each party agrees not to disclose (i)
that discussions have been held by and between the parties and
(ii) the existence, the terms, conditions or subject matter of
this Agreement to third parties without the prior written
consent of the other party.
10.3 Each party agrees to comply with all applicable laws, rules and
regulations, including Export Administration Regulations and
Export Control Regulations of the United States of America,
relating to the export or re-export of technical data and
products and produced as a result of the use of such data,
insofar as they relate to the information disclosed under this
Agreement. Each party agrees not to export or re-export,
directly or indirectly, any technical data provided by the other
party, or the direct product of such data, to any country
specified in such Regulations.
10.4 The parties do not intend that any agency, partnership or other
relationship be created between them by this Agreement.
10.5 All rights and obligations which by their nature survive the
expiration or termination of this Agreement will remain in
effect beyond expiration or termination.
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10.6 Nothing contained in this Agreement will be construed as
conferring any rights to either party to use in advertising,
publicity or other marketing activities, any name, trade name,
trademark, acronym or other designation of the other, including
any contraction, abbreviation, or simulation of any of the
foregoing.
10.7 This Agreement shall be construed, and legal relations between
ROCKWELL and OPTICAL MICRO shall be determined, in accordance
with the laws of the United States of America and, specifically,
the State of California, as if said Agreement were executed in,
and fully performed in, the State of California.
10.8 Any failure of either party to require strict performance by the
other party, or any waiver or failure to act by either party in
the event of breach or default of any section or subsection of
this Agreement, shall not be construed as a consent to, or
waiver of, any other breach of the same or of any other section
or subsection.
10.9 If any section or subsection of this Agreement is found by
competent authority to be invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such section or subsection in every other
respect and the remainder of this Agreement shall continue in
effect so long as it still expresses the intent of the parties.
If the intent of the parties cannot be preserved, this Agreement
shall be either renegotiated or terminated.
10.10 It is understood by the parties hereto that the terms and
conditions of this Agreement shall not be interpreted as
requiring either party (i) to disclose any information,
confidential or otherwise, to the other party or (ii) to enter
into any further contractual relationships.
10.11 Neither party may assign its rights or delegate its duties or
obligations under this Agreement without prior written consent.
Any attempt to do so is void.
10.12 The parties agree that this Agreement is the complete and
exclusive statement of the agreement between the parties
relating to the subject matter of the Agreement. This statement
of the Agreement supersedes all proposals or other prior
agreements, oral or written, and all other communications
between the parties.
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THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT, UNDERSTANDS
IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
AGREED TO: AGREED TO:
ROCKWELL OPTICAL MICRO
By: /s/ [Illegible] By: /s/ Steffen Gloeckner
--------------------------------- ---------------------------------
William J. Gunning Steffen Gloeckner
Director, Display Sciences Chief Optical Designer
Rockwell Science Center, LLC Optical Micro-Machines, Inc.
Date: November 13, 1998 Date: November 17, 1998
