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EXHIBIT 10.21
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
[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.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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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.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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5.5 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
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
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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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.
8.3 Licenses.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[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]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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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 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
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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.
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
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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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;
(b) an obligation to furnish any manufacturing or technical
information other than as stated in Section 8 herein;
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(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.
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
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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:
<TABLE>
<S> <C>
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
</TABLE>
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.
OPTICAL MICRO-MACHINES, INC. ROCKWELL SCIENCE CENTER
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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[REDACTED]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
