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EXHIBIT 10.10
STRATEGIC TEAMING AGREEMENT
THIS Strategic Teaming Agreement (herein the "AGREEMENT") is made and entered
into as of the 19th day of September, 2000, by and between Advanced Thermal
Technologies, Inc., a Delaware, USA corporation, having a place of business at
3355 East La Palma Avenue, Anaheim California, USA (referred to as "ATT"), and
Helix Technology Corporation, a Delaware USA corporation, (referred to as
"Helix") having a place of business at Mansfield Corporate Center, Nine
Hampshire Street, Mansfield, Massachusetts 02048. ATT, designs, develops,
manufactures, sells and services temperature control system products and also
provides installation, maintenance, repair, overhaul and upgrade services in
support of such products (such products and services are referred to as
"Products" and "Services"); and
Helix is in the business to design, develop, manufacture, sell and service
vacuum pump systems, vacuum measurement systems (Helix's products), and Helix's
GOLDLink(SM) worldwide field performance data tracking and problem analysis
system (hereinafter referred to as "GOLDLink"); and
ATT wishes to appoint Helix as its exclusive Sales and Service representative
to promote the sale of ATT's Products and Services in the jurisdiction(s)
identified in Exhibit A (referred to as the "Territory") for those Customer(s)
and provide Customer(s) product support and Service for ATT's Products (as
defined in Tables 1 & 2 of Exhibit A) and corresponding programs as listed in
Exhibit A hereto, and Helix wishes to accept such appointment upon the terms and
conditions hereinafter set forth; and
Helix and ATT wish to develop a GOLDLink capability for ATT's Products
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter contained in this Agreement, ATT and Helix hereby agree as follows:
ARTICLE 1 - DEFINITIONS:
"Competitive Products" with respect to ATT shall mean any temperature
control system utilizing a compressor based refrigeration technology
for application in the control of temperature in various locations
within process chambers used for the manufacturing of semiconductor
products. These process chamber locations are typically referred to as
the (i) wafer holding pedestal(s), cathode(s) or platen(s), (ii)
process chamber wall(s) or RF antenna(s), or (iii) process chamber
dome(s) or cover(s) (the top of the process chamber(s)). "Competitive
Products" with respect to Helix shall also mean the product(s) lines
that are designed, manufactured, sold, distributed, or serviced by
Helix as of the date of this Agreement.
"Customer(s)" shall mean end-user, semiconductor manufacturer and
semiconductor equipment manufacturers (OEM).
"Effective Date" shall mean the date this Agreement becomes effective
which shall be sixty-five days after execution by both parties for
territories in North America, and the
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date of execution by both parties for all other territories worldwide.
"Gross Revenue" shall mean the commissionable revenue from a Sale less
any duties, fees from extended warranty beyond ATT standard warranty,
insurance, taxes, non-recurring engineering, transportation charges and
other miscellaneous charges for materials sold to customers without
mark-up.
"Legal Requirement" shall mean any federal, state, local or foreign
law, statute, standard, ordinance, code, order, rule, regulation,
resolution, promulgation (including, without limitation, the U.S.
Foreign Corrupt Practices Act), or any order, judgment or decree of any
court, arbitrator, tribunal or governmental authority, or any license,
franchise, permit or similar right granted under any of the foregoing,
or any similar provision having the force and effect of law.
"Purchase Order(s)" shall mean the contractual document issued by a
Customer(s) to ATT for the sale of ATT Products to Customer.
"Products": shall mean the Temperature Control Systems that are
designed, manufactured, and sold by ATT. Products covered under this
Agreement are those Products that are offered for sale by ATT to
Customers at the time of execution of this Agreement, or subsequently
added thereafter and listed in Tables 1 & 2 of Exhibit A.
"Sale or Sales" shall mean the time of the acceptance of a Customer
Purchase Order by ATT.
"Service" shall mean the warranty and post-warranty repair to
Customer's Products (or as may be further defined by the parties during
the course of this Agreement).
ARTICLE 2. - APPOINTMENT OF SALES & CUSTOMER SUPPORT REPRESENTATIVE
Subject to the terms and conditions set forth in this Agreement, as of the
Effective Date and thereafter until this Agreement is terminated by either
party, ATT hereby appoints Helix as its exclusive Sales and Service
representative to promote the application, sale, delivery, installation, Service
and support of ATT Products (as are listed in Exhibit A) and to solicit actively
and diligently from Customers within the Territory (as defined in Exhibit A)
Purchase Orders for ATT Products and Services. It is understood that Original
Equipment Manufacturers (OEM) have the right to sell to end users. ATT and Helix
acknowledge that Exhibit A may be amended upon the written agreement of the
parties from time to time in accordance with the provisions of Article 10.4
hereof.
2.1 Helix hereby accepts said appointment upon the terms and conditions
hereinafter set forth and agrees to perform its responsibilities diligently and
in a thorough and professional manner. Helix shall conduct the business
contemplated by this Agreement with the highest degree of honesty and integrity
and shall comply strictly with all terms and conditions of this Agreement.
ARTICLE 3 - RESPONSIBILITIES OF HELIX
3.1. Market Development and Sales Promotion. Commencing upon the Effective
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Date, and thereafter until this Agreement is terminated, Helix shall use
reasonable efforts to actively market, promote and close sales of ATT Products
and Services in accordance with its appointment hereunder. Helix shall promptly
advise ATT of any request for proposal issued by Customers within the Territory
for the potential supply of ATT Products and Services and shall advise ATT of
Customers' prospective requirements for ATT Products and Services, including
pertinent specifications. Helix shall provide Customers with such appropriate
sales and technical information and general assistance as ATT may direct and
provide from time to time and shall supply ATT with information concerning
Customers within the Territory, their procurement programs and monthly
forecasts, and their methods of doing business, as may be reasonably required by
ATT in the pursuit of sales of ATT Products and Services. ATT and Helix shall
consult on a calendar quarterly basis (or more frequently depending upon
Customer requirements) to develop written marketing plan(s) for the marketing of
ATT Products and Services in the Territory. Helix shall use reasonable efforts
to comply with such marketing plan(s) in its marketing of ATT Products and
Services in the Territory.
3.2. Order Acceptance and Administration. Commencing upon the Effective Date and
thereafter until this Agreement is terminated, Helix shall solicit actively and
diligently from Customers, Purchase Orders for ATT Products and Services, at
prices and terms established and published by ATT, and shall promptly forward or
direct such Purchase Orders to ATT for acceptance. Helix agrees that it will
advise customers of ATT's right to reject Purchase Orders and shall not purport
to bind ATT prior to ATT's acceptance of such Purchase Orders. Purchase Orders
will not be deemed accepted until ATT's notice of acceptance is received by
Helix. If ATT does not accept a Purchase Order from a prospective Customer, ATT
shall promptly notify Helix that the Purchase Order has not been accepted. ATT
shall not unreasonably withhold acceptance of offers to purchase ATT Products
and Services marketed by Helix, provided, however, that the final decision of
acceptance or rejection of any Purchase Order shall be made by ATT in the
exercise of its sole discretion. At ATT's request, Helix shall assist ATT in (a)
obtaining any required export licenses, import licenses, customs clearances,
shipping instructions and other documents required by ATT in connection with
sales or shipments of ATT Products and Services to Customers in the Territory.
ATT may from time to time request the support of Helix in clarifying issues
related to the collection of accounts receivable for Products and Services
hereunder, Helix will provide the requested support on a reasonable efforts
basis.
3.3. Technical Support. Commencing upon the Effective Date and thereafter until
this Agreement is terminated, Helix shall provide technical guidance and
assistance to ATT on matters pertaining to Customer programs within the
Territory by acting as an intermediary in supporting and conferring with
Customers in respect to the installation and support of ATT Products and
Services. Helix shall provide on-going liaison with Customers in order to advise
ATT of potential technical issues and recommend appropriate action. This effort
shall include, but not be limited to, defining and clarifying Customers'
technical problems and questions, transmitting such information to ATT with
recommended action, and evaluating and assessing ATT's responses to Customers.
In addition, Helix shall provide local customer training, installation support,
on-site repair of Product and will also maintain regional field support
inventories as consigned by ATT to Helix. In the event that warranty related
repairs (Service) are required, Exhibit A of this Agreement sets forth terms and
conditions associated therewith.
3.4. Administrative Support. Commencing upon the Effective Date and thereafter
until this Agreement is terminated, Helix shall provide general support services
to ATT personnel
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visiting in the Territory to the extent reasonably requested by ATT. This effort
shall include, but not be limited to, providing typing, clerical assistance and
office/desk space for ATT local marketing and support personnel in the
Territory, assisting ATT in preparing, publishing and distributing viewgraphs
and other presentation materials to be used by ATT personnel, providing meeting
facilities for Customer meetings, arranging for and coordinating meetings in the
Territory.
3.4.1 In addition to Helix's personnel responsibility for developing
the ATT business, it may be necessary for ATT to add marketing support
personnel within key geographic markets where Helix has an established
legal entity and infrastructure. Helix will make available reasonable
office space for ATT personnel at Helix's offices and ATT would
reimburse Helix for any direct expenses incurred. ATT may request that
Helix hire individual(s) as Helix employees and solicit ATT for support
in this effort and ATT would reimburse Helix for all costs associated
with the hired individual(s) including but not limited to salaries,
benefits, insurance and all related expenses. It is understood that ATT
may establish legal entities within certain territories and upon the
establishment of these entities those employees as discussed in this
Section 3.4.1 may be hired into such ATT entities.
3.5 Reports: Helix shall provide a monthly forecast of anticipated sales by
model, and quantity for each region or large OEM covering the next three months.
Helix shall use reasonable efforts to extend this forecast to cover an
additional three-month period. These forecasts are intended for informational
purposes only for ATT manufacturing levels and are not intended to be precise
unit forecasts for manufacturing requirements. In addition to the forecast
reporting Helix will report, in a format mutually agreed upon, on Helix's
post-sale servicing of ATT Products, customer complaints, changes in Legal
Requirements, and, to Helix's knowledge the activities of competitors to ATT in
the territories including competitor's pricing, business strategies and
intellectual property infringements.
3.6. Conduct of Business.
3.6.1 Conduct. During the term of this Agreement, Helix and ATT shall
conduct their activities so as to comply in all material respects with
all applicable Legal Requirements, noncompliance with which could
materially adversely affect Helix's or ATT's business or condition.
3.6.2 License to Operate. During the term of this Agreement, Helix
shall preserve and maintain its existence, corporate or otherwise,
rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in each jurisdiction in
the Territory in which such qualification is necessary in view of
Helix's rights and obligations hereunder. Helix shall also preserve and
maintain all material licenses and other rights owned or possessed by
it and necessary to the performance of this Agreement.
3.6.3 Change of Control. The parties will notify the other in writing
immediately of any Change of Control (a "Change of Control").
Notwithstanding any other rights either party may have under this
Agreement, upon a Change of Control, the party receiving the notice
may, in its discretion, renegotiate or terminate this Agreement in its
entirety effective one hundred eighty (180) days following the date of
notice. Change of control means (i) a direct or indirect sale or other
transfer of all or substantially all of the assets of a party, (ii) an
adoption of a plan of liquidation or dissolution by a party, (iii) the
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acquisition by any "person" or "group" (other than BE Aerospace) of
"beneficial ownership" (as such terms are defined in the Security
Exchange Act of 1934) of more than Fifty percent (50%) of the voting
stock of a party, or (iv) such time as a majority of the board of
directors of a party are not directors currently on the board or their
successors who are nominated or elected by the current board or their
successors so nominated or elected.
3.6.4 License. During the term of this Agreement, Helix shall have a
limited license to use ATT's name and trademarks in any manner approved
in writing by ATT. If ATT determines that it is advisable to enter
Helix as a registered user of any of ATT's trademarks as a result of
Helix's activities under this Agreement, ATT and Helix shall cooperate
to do so at ATT's expense.
3.7. Compliance with the U.S. Foreign Corrupt Practices Act. Without limiting
the generality of Section 3.6, Helix and ATT hereby covenant and agree, on
behalf of itself and each of its subsidiaries and their respective employees
(for the purposes of this Section 3.7 collectively referred to as "the
parties"), as follows:
3.7.1 In carrying out the responsibilities under this Agreement, or in
connection with any other business transactions involving ATT, the
parties shall not pay or agree to pay, offer to pay or promise to pay,
directly or indirectly, any funds or anything of value to any public
official in any jurisdiction within the Territory, or to any political
party or official thereof or candidate for political office in any
jurisdiction within the Territory, or to any person while knowing that
all or any portion of said money or thing of value will be offered,
given, or promised, directly or indirectly, to any foreign official,
political party or official thereof, or foreign political candidate
within the Territory, for the purpose of (i) influencing any official
act or decision of such official, (ii) inducing a foreign official to
do or omit to do any act in violation of the lawful duty of such
official, or (iii) inducing such official to use his influence with a
foreign government or instrumentality thereof to affect or influence
any act or decision of such government or instrumentality in order to
assist Helix or ATT in obtaining or retaining business for or with, or
directing business to, any person. No owner, representative, officer,
director, or employee of Helix or ATT is or will become a foreign
official within the Territory during the term of this Agreement without
the express prior written consent of the other party. For purposes of
this Section 3.7, (i) "foreign official" means any officer or employee
of a foreign government or any department, agency or instrumentality
thereof or of any political party, or any person acting in an official
capacity for or on behalf of such government or department, agency,
instrumentality or political party and (ii) officials of
government-owned corporations are to be considered "foreign officials".
3.7.2 If Helix directly or indirectly offers, pays, promises, gives or
authorizes payment of any money or anything of value to any government
or public official, any political party or official thereof or
candidate for political office in any jurisdiction within the
Territory, or to any person while knowing that all or any portion of
such money or thing of value will be offered, given or promised,
directly or indirectly, to any foreign official, foreign political
party, or party official or candidate for foreign political office, for
the purposes enumerated in Section 3.7.1 this Agreement may be
terminated by ATT as provided in Article 9.3 and , (i) Helix will
surrender any claim for payment under this Agreement which arose on or
after the first date on which such prohibited transaction occurs
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("Violation Date") and (ii) Helix will refund to ATT any payments
received by Helix under this Agreement on or after the Violation Date.
3.7.3 Helix shall provide each of its employees and agents in the
Territory with a copy of ATT's Foreign Corrupt Practices Act Compliance
Memorandum, a copy of which is attached hereto as Exhibit B.
3.7.4 The parties agree to certify as to their compliance with this
Section 3.7 upon request from the other party from time to time during
the term of this Agreement.
3.8 Helix's Costs and Expenses. Except as otherwise provided in this Agreement,
Helix will be solely responsible for its costs and expenses incurred in
connection with the representation of ATT Products and Services. Any claim for
reimbursement of expenses for which ATT has specifically assumed responsibility
in advance must be accompanied by a detailed itemization of expenses claimed and
a copy of ATT's written assumption of responsibility for the expenditure. ATT
will make all payments under this Agreement only in U.S. dollars. All expenses
incurred by Helix in the performance of its obligations under this Agreement
shall be recorded fully and accurately in Helix's books and records,.
3.9. Competitive Activities. During the term of this Agreement and for a period
of twenty four (24) months from the date of any termination or expiration of
this agreement neither party, hereto shall prepare to engage or engage, directly
or indirectly, in the manufacture or distribution of any products or the
provision of any services, including but not limited to consulting services,
competitive with the products and services of the other party. Upon ATT's
request, Helix shall supply to ATT a list of all product lines marketed by
Helix. It is understood that in the event of termination or expiration of this
agreement, nothing in this agreement will prohibit ATT from selling and
servicing ATT Products . .
3.9.1 GOLDLink: Notwithstanding anything elsewhere herein to the
contrary, Helix shall have the right, at Helix's sole discretion,
during the term of this Agreement and at any time thereafter to engage
Helix's GOLDLink with any third party or third party's products
regardless of the competitive nature to ATT of such party or party's
products.
3.9.2 Mergers and Acquisitions: In the event that a party is acquired
by a third party who's product portfolio includes Competitive
Product(s) the party being acquired will notify the other party and the
parties will immediately meet to determine if an acceptable business
plan can be developed for the ATT temperature control systems business.
In the event that a mutually acceptable plan cannot be constructed the
party being notified will have the right to terminate the agreement
with up to one hundred eighty (180) days notice as such terminating
party determines and without compensation for investments made by the
notifying party. In the event that a party to the Agreement acquires or
merges with a business whose product portfolio contains "Competitive
Products" the acquiring party will take immediate action to divest
itself of the "Competitive Products".
3.10. Authority and Representatives. Helix does not have, nor will it hold
itself out as having, any right, power, or authority to create any contract or
obligation, either express or implied, on behalf of, in the name of, or binding
upon ATT, unless ATT consents to be bound in writing. Helix shall have the right
to appoint third party representatives , mutually agreed upon by the parties and
who shall be engaged at Helix's own risk and expense, and subject to Helix's
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supervision, and who shall not have any claim against ATT for compensation or
reimbursement.
ARTICLE 4 - OBLIGATIONS OF ATT.
4.1 ATT Supply and Commission Obligations. Within thirty (30) days following the
date hereof, and from time to time as necessary thereafter, ATT will deliver to
Helix, without charge, (i) available sales promotional material, literature,
brochures and printed catalogs in reasonable quantities to further the sale of
ATT Products and Services by Helix hereunder, and (ii) copies of correspondence,
sales documents, sales leads and other information in ATT's possession
pertaining to actual and prospective customers hereunder. Subject to Helix's
compliance with the provisions of this Agreement and subject to ATT's acceptance
of a Customer Purchase Order hereunder, ATT will pay to Helix the commissions in
accordance with Section 6.1 and Exhibit A of this Agreement.
4.2. Modification, Etc. During the term of this Agreement, ATT reserves the
right, with sixty (60) days notice to Helix, (i) to establish or to change at
any time prices and terms of sale of ATT Products and Services and (ii) to
modify, alter, improve, change or discontinue any or all ATT Products and
Services, however, ATT shall continue to provide parts, and technical and
service support for discontinued or modified products to Helix in accordance
with ATT's obsolescence policy or as required by law or statute whichever is
longer
4.3 Insurance: Without limiting or qualifying either parties liabilities,
obligations or indemnities otherwise assumed pursuant to this Agreement, each
party shall maintain, at its sole expense commercial liability insurance with
limits of liability not less than $1,000,000 per occurrence and umbrella
liability coverage of not less than $5,000,000. Insurance coverage shall include
liability coverage for bodily injury or property damage. The above insurance
policies shall name the other party as additional insured.
ARTICLE 5 - GOVERNMENT APPROVALS.
5.1. U.S. Approvals. If, by virtue of this Agreement, ATT is required to obtain
export licenses from, or otherwise comply with, any regulations of the United
States Government, ATT shall act promptly to satisfy such requirements. If ATT
is unable to obtain such approvals, ATT will be excused from its obligations
hereunder to the extent such obligations cannot be performed without such
approvals.
5.2. Other Approvals. If any approval with respect to this Agreement, or the
registration of Helix, is required, initially or at any time during the term of
this Agreement, in order to give this Agreement or any Customer Purchase Order
legal effect in any jurisdiction within the Territory, or with respect to
exchange regulations or requirements so as to assure the right of remittance
abroad of sums due to ATT, Helix shall, at ATT's expense, promptly take whatever
steps may be necessary to obtain such approvals and registrations or to assist
ATT in obtaining such approvals and registrations.
ARTICLE 6 - COMMISSIONS AND PAYMENT.
6.1. Commissions. Subject to the provisions of Section 4.2 above, if ATT
Products and Services are sold during the term of this Agreement then Helix
shall receive a commission calculated as the percentage or amount set forth as
in Exhibit A hereto of the Gross
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Revenue actually received by ATT from such sale. Notwithstanding the foregoing,
Helix is not entitled to and shall not receive any commission in respect of any
Gross Revenue attributable to non-recurring charges for the development of, or
engineering for, any ATT Products and Services, evaluation units and consigned
units unless subsequently purchased, freight, duty and other miscellaneous
charges that are passed through to the customer without markup.
6.1.1 Commission Payments. Commencing on the Effective Date commissions
shall accrue, but shall not be due and payable to Helix until such time
as ATT shall have received the Gross Revenue in connection with the
Sale. Commission payments owed Helix under Section 6.1 shall be made in
U.S. currency to Helix by check mailed to the address set forth in
Section 10.4 of this Agreement. ATT shall use reasonable efforts to
make commission payments to Helix on or before the fifteenth of each
month for commissions due for the prior calendar month. In any case
commission payments will accrue to Helix's account not later than
thirty (30) days after date of shipment or date of invoice, whichever
is the later.
6.1.2 Records and Reports. ATT shall provide to Helix with all
commission payments a schedule of the payments including Customer
Purchase Order number, Product name or Service, serial number, sell
price, commission payment, date of Sale, date of shipment, and any
other general accounting information required by Helix.
6.1.3 Disputes. In the case of dispute by the parties regarding
commission payment(s) or otherwise, the parties agree to submit any
dispute as a notice in writing to the other party as provided herein.
The receiving party shall respond in writing within ten (10) working
days. If the dispute is not resolved within thirty (30) days from the
date of notice the disputing party and receiving party agree to
arbitration in accordance with the CPR Arbitration Rules in the
Commonwealth of Massachusetts, and judgement upon the award rendered
may be entered any court having jurisdiction hereof. The cost of the
arbitration shall be borne by the party ruled against by the
arbitrator.
6.1.4 Adjustments: Commissions payable pursuant to this Section 6.1.1
shall be subject to adjustment to reflect cancellations or returns of
ATT Products and Services.
6.1.5 Post Warranty Service: Helix shall have the right to enter into
direct contractual agreements with Customers to provide post warranty
repair and service of Products. Payments for Post Warranty repair and
service shall made directly to Helix by the Customer and shall be
retained in full by Helix. ATT shall provide parts and materials to
Helix as Helix requires at a price [*] than the current list price and
shall deliver parts and material to Helix in a prompt and timely
manner.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES.
The parties hereby represent and warrant as follows:
7.1. Corporate Matters: Helix.
7.1.1. Organization, Power and Standing. Helix is a legal entity duly
organized and validly existing under the laws of its jurisdiction of
organization and has all requisite power and authority to execute,
deliver and perform this Agreement and to
[*] - 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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consummate the transactions contemplated hereby.
7.1.2. Authorization and Enforceability. This Agreement has been duly
authorized, executed and delivered by a duly authorized officer of
Helix, constitutes the legal, valid and binding obligation of Helix and
is enforceable against Helix in accordance with its terms, except to
the extent such enforceability may be limited by bankruptcy,
reorganization, insolvency or similar laws of general applicability
governing the enforcement of the rights of creditors or by the general
principles of equity (regardless of whether considered in a proceeding
at law or in equity).
7.1.3. Compliance with Certain Instruments. Neither the execution,
delivery and performance of this Agreement by Helix nor the
consummation by Helix of the transactions contemplated hereby will
violate or conflict with or constitute a default under any term of any
organizational document of Helix, or any other agreement or instrument,
or any permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule, or regulation applicable to Helix or the
transactions contemplated by this Agreement.
7.2. Corporate Matters: ATT.
7.2.1. Organization, Power and Standing. ATT is a legal entity duly
organized and validly existing under the laws of its jurisdiction of
organization and has all requisite power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
7.2.2. Authorization and Enforceability. This Agreement has been duly
authorized, executed and delivered by a duly authorized officer of ATT,
constitutes the legal, valid and binding obligation of ATT and is
enforceable against ATT in accordance with its terms, except to the
extent such enforceability may be limited by bankruptcy,
reorganization, insolvency or similar laws of general applicability
governing the enforcement of the rights of creditors or by the general
principles of equity (regardless of whether considered in a proceeding
at law or in equity).
7.2.3. Compliance with Certain Instruments. Neither the execution,
delivery and performance of this Agreement by ATT nor the consummation
by ATT of the transactions contemplated hereby will violate or conflict
with or constitute a default under any term of any organizational
document of ATT, or any other agreement or instrument, or any permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule, or regulation applicable to ATT or the transactions
contemplated by this Agreement.
7.3. Character of Operations and Compliance with Laws.
7.3.1. Compliance Generally. Neither the execution and delivery of this
Agreement by either party nor the consummation by the parties of any
transactions contemplated hereby does or will violate or give rise to
any violation or default under any Legal Requirement. Helix and ATT are
not in default under any Legal Requirement as of the date hereof.
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7.3.2 No Bribes, Illegal Payments, Etc. Without limiting the generality
of Section 7.3.1, neither Helix nor any of its directors, officers,
employees or agents, has directly or indirectly given or agreed to give
any gift, contribution, payment or similar benefit to any supplier,
customer, governmental employee or other person who was, is or may be
in a position to help or hinder Helix or ATT in connection with any
actual or proposed transaction contemplated by this Agreement (a) which
could subject ATT to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, or (b) the non-continuation of
which in the future could result in a material adverse effect on the
viability of the transactions contemplated by this Agreement or (c)
which has resulted or could result, individually or in the aggregate,
in any material adverse effect on the viability of the transactions
contemplated by this Agreement.
7.3.3. Litigation. There is no litigation, at law or in equity, or any
proceeding before or investigation by any foreign, federal, state or
municipal board or other governmental or administrative agency or any
arbitrator, filed (or to the best of either party's knowledge,
threatened or any reasonable factual basis therefor) which seeks
rescission of, seeks to enjoin the consummation of, or which questions
the validity of, this Agreement or any of the transactions contemplated
hereby. No judgment, decree or order of any foreign, federal, state or
municipal court, board or other governmental or administrative agency
or any arbitrator has been issued against Helix or ATT or (to the best
of either party's knowledge) any person other than Helix or ATT which
could have any material adverse effect on the transactions contemplated
by this Agreement.
ARTICLE 8 - CONFIDENTIALITY.
8.1. Confidential Information. In performance of this Agreement or in
contemplation hereof, including but not limited to Helix's offering for sale,
and or Sale of the Products and Services prior to the Effective Date, Helix, its
affiliates and their respective employees and agents have had, and continue to
have during the term of this Agreement, access to and receipt of ATT's, and its
predecessor, private and/or confidential information, including but not limited
to proprietary details and disclosures concerning the Products and Services
assigned to, owned or controlled by ATT (herein collectively referred to as "
Proprietary Information"). All Proprietary Information so acquired by Helix, its
affiliates and their respective employees and agents shall be and shall remain
the exclusive property of ATT, and Helix shall keep, and shall instruct its
affiliates and their respective employees and agents to keep, any and all such
Proprietary Information and data confidential and shall not copy, publish or
disclose it to others, or authorize its affiliates or their respective employees
or agents or anyone else to copy, publish or disclose it to others, without
ATT's written approval; provided, however, that the provisions of this Section
8.1 shall not prohibit Helix from disclosing non-privileged/confidential
information concerning the Products and Services to a Customer as contemplated
hereby. Helix shall return all media embodying Proprietary Information and data,
shipping charges prepaid, to ATT upon ATT's request in the event of the
termination or expiration of this Agreement. The parties agree to execute a
bi-lateral Non-Disclosure Agreement as Exhibit C to this Agreement.
8.2. Exceptions. The foregoing obligations of confidentiality shall not apply
with respect to Proprietary Information to the extent that Helix can document
that such information (a) is within the public domain through no fault of Helix;
(b) is available to Helix from third parties (parties other than Helix and ATT)
who in making such disclosure breached no confidentiality
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relationship; (c) is disclosed by ATT on an unrestricted basis to other persons
not party to this Agreement; or (d) is approved for release by written
authorization of ATT.
ARTICLE 9 - DURATION AND TERMINATION.
9.1 Duration. This Agreement shall be effective upon the Effective Date and
unless sooner terminated in accordance with the provisions herein, shall remain
in effect for a period of three (3) years from the date hereof, and shall
automatically renew for additional one year period(s) unless a written notice is
issued by either party one-hundred-eighty (180) days prior to the annual
expiration date. This Agreement may not be terminated by either party prior to
the first anniversary of the date of execution except by mutual agreement.
Either party may terminate this Agreement in its entirety for convenience after
the initial twelve (12) month period with one-hundred-eighty (180) days prior
written notice. This Agreement may also be terminated as provided in Article
9.3. In the event that either party elects to terminate this Agreement as
provided for above, the parties hereto agree to use their reasonable efforts to
maintain the existing business levels and customer relationships during any
transition period.
9.2. Rights and Obligations Upon Termination. Helix shall be entitled to receive
commissions for Sales of ATT Products and Services prior to the effective date
of the Agreement's termination, where such Products or Services are delivered or
performed after the effective date of the Agreement's termination.
9.2.1 Upon the effective date of any termination of this Agreement,
Helix will immediately cease using any of ATT's names or trademarks
Helix previously had the right to use pursuant to this Agreement and
shall promptly return to ATT, at ATT's request, any price lists,
quotations, files of customer communications related to the ATT
business that have been retracted of all Helix confidential or
proprietary information, specifications, technical or Proprietary
Information furnished by ATT to Helix and all copies thereof.
9.2.2 The rights and obligations of the parties under Sections 3.9,
3.9.1, 3.9.2, 6, 7, 8, 9.2, 9.2.4, 10.2, 10.5, 10,9, 10.10, and 10.11
of this Agreement shall survive expiration and/or termination of this
Agreement.
9.2.3 Neither party shall be liable to the other for damages of any
kind or character whatsoever on account of any expiration or
termination of this Agreement, whether such damages may arise from the
loss of prospective profits, or compensation on sales or expenses
incurred, or investments made in connection with the establishment,
development or maintenance of ATT's or Helix's business, or from any
other cause, claim or consideration whatsoever.
9.2.4 Compensation for Investments upon Termination: Upon termination
by either party, other than under Article 9.3 (subparagraphs a and d),
the parties will meet and review the investments made in inventory,
test equipment, and other material goods for the purposes of fulfilling
obligations arising from this agreement. Capital improvements to
facilities will be excluded. The current value of these investments
will be determined and a mutually agreeable plan ,involving the
purchase by the notifying party or the breaching party in the case of
Article 9.3(b) of the investments, will be developed and
11
<PAGE> 12
executed for the purpose of compensating the party being notified for
the costs of relevant investments. The acquired investments and all
title and interest therein will be transferred to the acquiring party
in an expeditious fashion. Both parties shall use commercially
reasonable efforts to reach agreement within one-hundred-twenty (120)
days from the date notice of termination is sent. In the event that the
parties cannot agree, settlement will be decided in accordance with
Article 6.1.3 of this agreement.
9.3 Other Termination: This Agreement may be terminated in its entirety by a
party upon immediatenotice in the case of clauses (a) and (b), upon one hundred
eighty (180) days notice in the case of clause (c) and up to one hundred eighty
(180) days notice in case of clause (d) upon the occurrence of any of the
following:
a) If the other ceases to do business, or otherwise terminates business
operations, or
b) If the other materially breaches any material provision of this
Agreement and fails to cure such breach within sixty (60) days,
unless stated otherwise herein, or immediately in the case of a
breach of the terms of Exhibit C, or
c) Change of Control as defined in Article 3.6.3 herein.
d) The conditions described in Articles 3.7.2 or 3.9.2 herein
ARTICLE10 - MISCELLANEOUS.
10.1. Independent Contractor. Helix and any entity or representative authorized
to act on Helix's behalf shall at all times act as and be an independent
contractor, and shall not (a) have any right or authority to make any
representation or warranty on behalf of ATT, (b) in any manner assume or create
any obligation or responsibility, express or implied, on behalf of or in the
name of ATT, (c) act for or bind ATT in any respect whatsoever, or (d) receive
any payments from Customers on behalf of ATT, other than as expressly provided
for in this Agreement or as otherwise expressly provided in a separate written
authorization from ATT during the term of this Agreement. Helix and its
representatives are not agents, employees or legal representatives of ATT. ATT
and any entity or representative authorized to act on ATT's behalf shall at all
times act as and be an independent contractor, and shall not make any
representation or warranty on the behalf of Helix in any manner. ATT and it
employees and representatives are not legal representatives of Helix.
10.2. Indemnification. Each party hereto (each an "Indemnifying Party") agrees
to indemnify and hold harmless the other party, its affiliates and their
respective employees and agents (each an "Indemnified Party") with respect to
any claim, suit or other proceeding asserted or instituted against an
Indemnified Party arising out of or related to any actions taken by such
Indemnifying Party involving any Legal Requirement, product liability actions of
the party, the errors and omissions of the party, intellectual property
infringements of the party, the gross negligence acts of the party, or in
violation of the provisions of this Agreement. Such Indemnifying Party shall
assume the defense of any suit or proceeding brought against an Indemnified
Party by a third party to the extent based upon a claim arising in connection
with the actions of such Indemnifying Party, that are not authorized by the
provisions of this Agreement provided, however, that (a) such Indemnified Party
gives such Indemnifying Party prompt notice in writing of any such claim or
suit; and (b) such Indemnified Party provides such Indemnifying Party
information, assistance and authority to enable such Indemnifying Party to
defend such suit. Such Indemnifying Party shall have sole control of such
defense, but upon the request of an Indemnified Party, such Indemnifying Party
shall permit such Indemnified
12
<PAGE> 13
Party to participate in the defense of such claim or suit with counsel of such
Indemnified Party's choosing. In any such suit, such Indemnifying Party shall
indemnify such Indemnified Party against any money damages and costs awarded or
incurred in respect of any claims concerning the matters set forth above.
10. 3. Force Majeure. Neither party shall be liable for any nonperformance or
delay in performance, to the extent that such nonperformance or delay in
performance is caused by circumstances beyond the reasonable control of the
party affected, including, without limitation, natural disaster, intervention by
any governmental authority, labor strikes or shortages, or inability to secure
transportation facilities.
10. 4. Notices. All notices and other communications that are required to be or
may be given under this Agreement shall be deemed to have been duly given if
personally delivered or if sent by mail, facsimile, or email to the parties as
follows:
If to ATT, addressed to:
Advanced Thermal Technologies, Inc.
3355 East La Palma Avenue,
Anaheim, Ca. 92806 USA
Attn: Bruce Thayer, President
Telephone No: (714) 688-4266
Telefax No: (714) 688-4163
If notice to Helix, addressed to:
Helix Technology Corporation
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, Massachusetts. 02048
Attn: Charles G. Chappell, Director of Contracts
Telephone No: (508) 337- 5644
Telefax No: (508) 337-5646
If payments to Helix:
Helix Technology Corporation
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048
Attn: Accounts Receivable
Payments and Statements delivered to Helix under Section 6 shall be
addressed as above, or to such other address as Helix shall furnish to ATT by
notice given in accordance with this Section 10.4. Unless otherwise specified
herein, such notices or other communications shall be deemed received (a) on the
date delivered, if delivered personally; or (b) one (1) business day after being
sent, if sent by facsimile.
10. 5. Waivers. No course of dealing between the parties hereto, including,
without limitation, any delay or omission in exercising any right hereunder,
shall operate as a waiver of any of
13
<PAGE> 14
the rights of either party hereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
10. 6. Entire Agreement and Exhibit. This Agreement, including Exhibits A, B and
C attached hereto, constitute a fully integrated agreement between the parties,
their agents, employees and predecessors and assigns, and contains the complete
statement of all the arrangements, understandings and agreements between the
parties with respect to the subject matter hereof and supersedes all existing
agreements and understandings, oral, implied or written, between them. No change
may be made to this Agreement, except in a writing signed by an authorized
officer of each party. In the event that this Agreement is translated into
another language, any conflict between the terms of the English language version
of this Agreement and any foreign language version of this Agreement shall be
resolved such that the provisions of the English language version shall control.
10. 7. Binding Effect and Assignment. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties and their respective heirs, legal
representatives, successors and assigns.. This Agreement is not assignable or
transferable, either in whole or in part, without the prior written consent of
the other party, and if any such assignment is made without such consent, this
Agreement shall be deemed to have been terminated upon such assignment.
10. 8. Headings and Counterparts. The headings contained in this Agreement are
solely for convenience of reference and shall not affect its interpretation.
This Agreement may be executed in counterparts, each of which, when executed,
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
10.9. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and each such term, provision,
covenant, or restriction that is held unenforceable shall be construed by
limiting it so as to be valid and enforceable to the maximum extent permitted by
law.
10.10. Governing Law. The validity, performance and enforcement of this
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of laws rules) of the Commonwealth of Massachusetts.
10.11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY, IT'S DIVISIONS
AND SUBSIDIARIES BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR SPECIAL,
EXEMPLARY, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING UNDER CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY OR ANY OTHER THEORY OF
LIABILITY.
10.12. Further Assurances. At any time and from time to time, each party hereto,
without further consideration, shall cooperate, take such further action and
execute and deliver such further instruments and documents as may be reasonably
requested by the other party in order to carry out the provisions and purposes
of this Agreement.
10.13. Advertising and Press Releases. The parties will not, without prior
written approval of the other party, issue any press releases, advertising,
publicity, public statements, or in
14
<PAGE> 15
any way engage in any other form of public disclosure relating to this
Agreement, the relationship between the parties, or Product and Service
advertising media unless such disclosure is required by law. The parties agree
to cooperate in the joint development and publication of any and all Product and
Service advertising.
10.14 New Activities. In the event that ATT and Helix identify the opportunity
to develop new Products, and intend to enter into a joint development activity
which shall create a new design of Products, the Parties agree to discuss the
proprietary nature of such opportunity and if they agree to enter into such
joint agreement activity, they shall execute a separate agreement which shall
define ownership and use of intellectual property.
IN WITNESS WHEREOF, the parties hereto, by the signature below of their
authorized representatives, agree to be bound by the provisions of this
Agreement.
Advanced Thermal Technologies, Inc. Helix Technology Corporation
By: /s/ Bruce Thayer By: /s/ Charles Chappell
-------------------------- ----------------------
Name: Bruce Thayer Charles G. Chappell
Title: President Director, Contracts
Date: Date:
15
<PAGE> 16
EXHIBIT A
AUTHORIZED MARKET SEGMENTS
This Agreement authorizes Helix to:
1. Sell ATT products to Customers in the semiconductor manufacturing
market and semiconductor manufacturing equipment market as provided
herein
2. Territories:
OEM Sales: Worldwide
End User Sales: Worldwide
Service & Support: Worldwide
COMMISSION SCHEDULE
Jurisdiction Specific Customers Commission/Compensation
USA & Sales to Original - [*]
International Equipment Manufacturer
(OEM)
USA & Sales to End Users - [*]
International
Basis of Commission: Commission percentage levels defined above are based upon
ATT offering a [*] from Customer installation and not to exceed [*] from date of
shipment to the Customer(s). The parties shall agree on a case by case basis on
the compensation to be paid Helix for any warranty to a Customer exceeding the
above time element.
[*] - 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.
Ex. A - 1
<PAGE> 17
TABLE 1
<TABLE>
<CAPTION>
TCU MODEL/PART NUMBERING ASSIGNMENTS
[*]
-----------------------------------------------------------------------------------------------------------------------------
MODEL FLUID MODEL NUMBER DESCRIPTION ATT PART NUMBER
-----------------------------------------------------------------------------------------------------------------------------
<S> <C>
[*]
</TABLE>
TABLE 2
ATT PRODUCTS LISTING: TEMPERATURE CONTROL SYSTEMS FOR SALE TO END
USERS AND OTHER NEW OEM APPLICATIONS
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------
MODEL FLUID MODEL NUMBER DESCRIPTION ATT PART NUMBER
-----------------------------------------------------------------------------------------------------------------------------
<S> <C>
[*]
</TABLE>
Ex. A - 2
[*] = 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.
<PAGE> 18
Exhibit A NOTES AND CONDITIONS:
1. For the purpose of this Agreement, commissions are expressed as a
percentage of the Gross Revenue. Excluded from commission consideration
are:
- Consigned units unless subsequently purchased.
- Evaluation Units
2. Tracking and paying of commissions will be the responsibility of ATT and will
be made in accordance with this Agreement.
3. Helix is required to have sufficient service representatives trained and
certified by ATT to provide effective global customer support. The parties shall
agree on the number of Helix trained and certified service representatives. ATT
will provide reasonable levels of training at no cost to Helix in its Anaheim,
CA facility.
4. ATT and Helix will work diligently to grow market share in OEM and End User
markets.
5 Field Support Inventory: ATT will provide, at their expense, backup
field support systems to be used by Helix in the event of system failure that
cannot be expeditiously repaired on-site. This field support inventory will be
in addition to the training of Helix personnel as provided herein. ATT and Helix
will determine the number of allocated units and the associated locations.
6 It is understood that warranty repair labor will be provided by Helix. The
cost associated with this labor is included in the sales commission as set forth
above. All warranty repair parts shall be provided by ATT, at no charge to
Helix. In the event of warranty support service, Helix shall provide ATT with a
status report on each individual repair. This report shall include, but not be
limited to, the specific failure, the repair performed and the parts used to
facilitate the repair. In certain circumstances, ATT may request the return of
failed parts to perform its own failure analysis. Special Tooling, equipment and
documented work instructions required for warranty repair shall be supplied to
Helix by ATT.
6.1 Extraordinary Repair: In the case of extraordinary warranty repair and
service activity by Helix or the case of Product recall by ATT, then ATT
and Helix shall mutually agree upon an amount to be paid Helix for all
related direct and indirect expenses incurred by Helix in support of
extraordinary repair and service.
6.2 Installed Base Service Payment: ATT shall pay a fee to be agreed upon
by the parties for Helix's performance of Product Services and repair for
Product(s) sales prior to the Effective Date of this Agreement. The parties
shall agree within sixty (60) days after the Effective Date of this
Agreement on the amount of payment due Helix.
Ex. A - 2
<PAGE> 19
EXHIBIT B
ATT COMPLIANCE MEMORANDUM
THE FOREIGN CORRUPT PRACTICES ACT
ATT employs an extensive network of sales representatives and other
employees throughout the world who come into daily contact with officials of
foreign governments. Relationships with these officials, while essential to the
conduct of the Company's business, raise the possibility of demands from such
officials for payments or other compensation in connection with decisions or
actions within their control that affect the Company.
Each employee of the Company must become familiar with the laws of the
United States that regulate interactions with foreign officials. To that end,
you are being provided with this guide to the requirements of the Foreign
Corrupt Practices Act (the "FCPA"), which is the main statute governing
interactions between American business people and foreign governments. The
Company urges you to read this guide and retain it for future reference. The
FCPA is a criminal statute and provides for severe CRIMINAL penalties, as
outlined below.
IF AT ANY TIME YOU HAVE QUESTIONS CONCERNING THE APPROPRIATE COURSE OF
CONDUCT IN A PARTICULAR SITUATION INVOLVING A FOREIGN OFFICIAL OR THE PROPRIETY
OF ANY REQUEST, CONTACT EDMUND JEFFREY MORIARTY, THE COMPANY'S GENERAL COUNSEL,
AT (561) 791-5000, EXT. 1408.
PROHIBITED ACTIVITIES
ANTI-BRIBERY PROVISIONS: THE FCPA MAKES IT UNLAWFUL FOR AN AMERICAN CORPORATION
OR ITS EMPLOYEES , AGENTS OR REPRESENTATIVES, DIRECTLY OR INDIRECTLY, TO PAY OR
TO OFFER TO PAY OR TO AUTHORIZE PAYMENT OF ANYTHING OF VALUE TO ANY FOREIGN
OFFICIAL, FOREIGN POLITICAL PARTY OR FOREIGN POLITICAL PARTY OFFICIAL FOR THE
PURPOSE OF RETAINING OR OBTAINING BUSINESS.
ACCOUNTING PROVISIONS: The FCPA requires the Company to keep reasonably detailed
accounting records that accurately and fairly reflect the transactions and
dispositions of assets of the Company.
Key Points:
-While the anti-bribery provisions of the FCPA extend only to officials
of foreign governments, foreign political parties and foreign political
party officials, you may violate the FCPA if you make a payment to a
private party and you know, believe or are aware that the private party
intends to turn over all or a portion of that payment to a foreign
official. Hiding one's head in the sand is not an option.
Ex. B - 1
<PAGE> 20
-Although the typical circumstance covered by the FCPA is the awarding
of government contracts, the FCPA is not limited to such matters. The
key is whether a payment or offer is made to a foreign official, not
whether the transaction is with the foreign government. For purposes of
compliance with the FCPA, officials of government-owned corporations
are to be considered "foreign officials" (many airlines are wholly or
partly government-owned corporations).
-Failure to accurately inform the appropriate officials of the Company
as to the nature of transactions entered into by you, including any
payments made, can expose the Company to liability under the FCPA
independent of any violation of the anti-bribery provisions. It is
imperative that accurate and detailed record-keeping be maintained and
provided to the appropriate Company officials.
EXEMPTIONS
ROUTINE GOVERNMENTAL ACTIONS: The FCPA exempts from its coverage payments made
to a foreign official, foreign political party or foreign political party
official for the purpose of facilitating or expediting the performance of a
routine governmental action by any such person or party. Under the FCPA, the
definition of "routine governmental action" encompasses action by a foreign
official in (i) obtaining permits, licenses or other official documents that
qualify a person to do business; (ii) processing governmental papers, such as
visas and work orders; (iii) providing police protection or mail services or
scheduling inspections; (iv) providing communication services, utilities, or
cargo handling or (v) actions of a similar nature. "Routine governmental action"
does not include any decision to award new business to or continue business with
a particular party.
Key Points:
-The routine governmental actions exemption is an acknowledgment that
in many countries officials demand compensation for performing ordinary
services. The critical distinction is between payments made for routine
services and payments designed to obtain or retain business. The FCPA's
definition of routine governmental action, outlined above, provides
some guidance. Careful consideration of each such instance is required
to ensure compliance; if you are unsure about a requested payment,
contact the Company BEFORE agreeing to make it.
Ex. B - 2
<PAGE> 21
DEFENSES TO AN ALLEGATION OF FCPA VIOLATION
COMPLIANCE WITH FOREIGN LAW: Prosecution under the FCPA can be avoided if the
payment or offer of anything of value allegedly made to a foreign official,
foreign political party or foreign political party official was lawful under the
written laws and regulations of the foreign country involved.
Key Points:
In the event that a payment or offer is made or demanded on the basis
that it is lawful under the foreign country's laws, it is critical that
you inform the appropriate officials of the Company so that you and the
Company can obtain the advice of legal counsel BEFORE any payment or
offer is made.
-You should not rely on oral or written assurances or on advice of
counsel not retained by the Company as to the applicability of a
foreign country's laws in such a situation.
PROMOTIONAL OR CONTRACTUAL EXPENSES: Payments or offers of anything of value to
a foreign official do not violate the FCPA if such payments or offers were
reasonable and bona fide expenditures incurred by or on behalf of the foreign
official and were directly related to (i) the promotion, demonstration or
explanation of products or services; or (ii) the execution or performance of an
existing contract with a foreign government or agency thereof.
Key Points:
-This defense permits the Company to pay or offer to pay expenses such
as travel and lodging expenses of foreign officials without violating
the FCPA. Note that the expenses have to be reasonable, i.e.,
appropriate to the nature of the transaction or the individual
involved, and have to be bona fide, i.e., actually incurred for the
purpose of promoting the product or service or executing or performing
an existing contract.
PENALTIES
Power to enforce the provisions of the FCPA is divided between the
Securities and Exchange Commission and the United States Department of Justice.
The SEC enforces the record-keeping and accounting provisions and may bring a
civil enforcement action or administrative proceeding against any company it
believes to have violated the FCPA. The Justice Department enforces the
anti-bribery provisions of the FCPA and brings any criminal charges under the
accounting sections.
Ex. B - 3
<PAGE> 22
INDIVIDUAL PENALTIES: Any officer or director of a company who willfully
violates the anti-bribery provisions of the FCPA may be fined up to $100,000, or
imprisoned for five years, or both. ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF A
COMPANY WHO IS A UNITED STATES CITIZEN, NATIONAL OR RESIDENT OR IS OTHERWISE
SUBJECT TO U.S. JURISDICTION AND WHO WILLFULLY VIOLATES THE ANTI-BRIBERY
PROVISIONS MAY BE FINED UP TO $100,000, OR IMPRISONED FOR UP TO FIVE YEARS, OR
BOTH. THE COMPANY MAY NOT PAY THE FINE OF AN INDIVIDUAL WHO IS CONVICTED OF
VIOLATING THE FCPA.
CORPORATE PENALTIES: A corporation found to have violated the FCPA may be fined
up to $2,000,000.
RED FLAGS
In the event that you engage in dealings with foreign officials or
enlist representatives or contractors to deal with foreign officials, you must
be mindful of the provisions of the FCPA and comply with them. It is imperative
that you keep accurate, timely and comprehensive records of your dealings with
foreign officials and in particular any payments made when dealing with foreign
officials or their or your agents. Be on the lookout for the following abnormal
features of a transaction that might alert you to a possible violation of the
FCPA:
-EXCESSIVE FEE PAYMENTS. In hiring an agent or making payments to
foreign officials, you must ensure that the fee, commission or payment
being charged, in the case of a representative, or the contract price,
in the case of an official, is fully documented and not excessive in
light of prevailing market conditions.
-PAYMENTS IN CASH OR BEARER INSTRUMENTS OR TO THIRD PARTIES. Do not
make any significant payments in cash or use checks made out to bearer
or to cash. If a payment is to be made to a party who is not typically
a party to the type of transaction in question, contact the Company for
instructions BEFORE agreeing to make the payment.
REPRESENTATIVES ARRANGEMENTS
Retaining a representative to solicit sales or effect transactions in a
foreign country requires that special care be undertaken in selecting the
representative and monitoring his or her activities. Special precautions include
the following:
-KNOW YOUR REPRESENTATIVE. In selecting a representative, you should
consider who has recommended him or her to you and the experience of
the representative. You should clearly define the particular tasks that
the agent is being hired to perform. You should ensure that the
representative is familiar with the FCPA. You should familiarize
yourself with the law and business customs of the foreign country in
which the representative is to work for you.
Ex. B - 4
<PAGE> 23
-PROMISES. Any agreement with a representative should include
provisions to the effect that (i) the representative is aware of and
will comply with the FCPA, (ii) the representative will not accept any
payments offered to him or her in an illegal fashion, (iii) the Company
has the right to cancel the agreement in the event that the Company
believes in good faith that the representative has violated or has
caused the Company to violate the FCPA, and (iv) the representative
will disclose any subagents and promise not to hire any subagents
without your express written permission. ALL AGREEMENTS, WRITTEN OR
ORAL, WITH REPRESENTATIVES REQUIRE THE PRIOR WRITTEN CONSENT OF THE
PRESIDENT OF THE COMPANY.
Ex. B - 5
<PAGE> 24
Exhibit C
PROPRIETARY INFORMATION DISCLOSURE AGREEMENT
This Agreement dated this 19th day of September, 2000, is by and between:
ADVANCED THERMAL TECHNOLOGIES (or one of its divisions, subsidiaries or
affiliated companies, or by its predecessors or successors in business) having
its principal place of business located at 3355 East La Palma Avenue, Anaheim,
CA 92806
and
HELIX TECHNOLOGY CORPORATION ("Helix"), (or one of its divisions, subsidiaries
or affiliated companies, or by its predecessors or successors in business)
having its principal place of business located at Nine Hampshire Street,
Mansfield Corporate Center, Mansfield, Massachusetts 02048-9171
both hereinafter referred to as "the Parties".
Whereas, the Parties anticipate entering into business discussions that may
require disclosure of certain Information considered company confidential or
proprietary to one or both of the Parties.
Whereas, the Parties wish to set forth their understanding with respect
to protection of such information.
NOW THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and other good and valuable consideration, the Parties
agree as follows:
1. Proprietary Information that will be exchanged under the terms and
conditions of this agreement shall be limited to the following
subject(s): Helix's and ATT's business, marketing, manufacturing and
logistic plans and activities, technical data relating the design for
the repair and servicing of ATT products, Helix's GOLDLink(SM) and
GUTS(R), marketing, operational, strategic plans and technical data
including but not limited to software, specifications, and methods and
know-how.
2. Proprietary Information shall include, without limitation, technical or
non-technical information, designs, drawings, calculations, test
results, manufacturing processes and procedures, compilation, computer
software and operating code, material specifications, device, methods
or techniques (know-how), formula, financial and marketing information,
customer and supplier lists. Such Information may be exchanged orally,
visually, electronically, in writing, or through exchange of other
business documents, hardware or software.
3. The Parties shall use their reasonable efforts to protect and keep
confidential, all information exchanged between them. The Parties shall
not disclose Proprietary Information (of the other Party) to a third
party without first obtaining written permission of the disclosing
Party.
Ex. C - 1
<PAGE> 25
4. Proprietary Information exchanged hereunder shall be disclosed only to those
employees of the Parties having need to know in order to carry out the purpose
of the business discussions. Each such employee shall be notified of the
proprietary nature of information being disclosed and shall be informed of, and
required to carry out, the responsibility to maintain confidentiality in
accordance with the terms and conditions of this agreement.
5. Except for subsequent purchase orders, contracts or other related
written agreements between the Parties, neither party to this Agreement
will make use of Proprietary Information of the other party for its own
benefit or for the benefit of any other person or organization (other
than the disclosing party).
6. Proprietary Information disclosed hereunder shall remain the exclusive
property of the disclosing party, and no rights under any United States
or foreign patents or any license, certification or other rights are
conveyed hereby.
7. All Proprietary Information and copies thereof, disclosed hereunder,
shall be returned to the disclosing party at the conclusion of business
discussions or any resulting purchase order, contract or other
agreement between the parties, or upon written request of the
disclosing party, within ten (10) days of receipt of such request.
8. The obligations of the Parties with respect to maintenance of
confidentiality set forth heretofore, shall not apply to any
information disclosed by either party which:
(a) is known to the other party prior to disclosure hereunder, as
evidenced by written records;
(b) is disclosed without restriction by an unrelated third party who
is in lawful possession thereof and who has the right to make such
disclosure;
(c) is, when disclosed, or shall subsequently have become public
knowledge by publication, product release or otherwise, and through
no fault of the party to whom disclosure was made;
(d) is disclosed after having received written notification that the
other party does not wish to receive further Proprietary
Information;
(e) is independently discovered or developed without reference to
Proprietary Information disclosed hereunder.
9. The authorization for representatives of the Parties to
exchange Proprietary Information hereunder shall terminate at the same
date of termination of the Strategic Teaming Agreement. The obligation
of the Parties to protect Proprietary Information and to maintain
confidentiality, set forth heretofore, shall terminate upon written
agreement of the Parties that no further state of confidentiality
exists with respect to a disclosure or set of disclosures or, in any
event, with respect to all disclosures, three (3) years from the date
of the last documented disclosure hereunder, or expiration of this
Agreement, whichever is later.
Ex. C - 2
<PAGE> 26
11. This Agreement constitutes the complete agreement between the Parties
with respect to the disclosure of Proprietary Information regarding the
subject(s) set forth in paragraphs 1 & 2 hereof, and may not be amended
except in writing.
12. Facsimile signatures to this Agreement shall be sufficient unless
originals are required by either party or by a third party.
13. All notices under this Agreement shall be deemed delivered if deposited
with the U.S. Postal Service, first-class, postage prepaid, addressed
to the Designated Agent of the Party intended to receive such notice as
follows:
IF TO HELIX: IF TO ADVANCED THERMAL TECHNOLOGIES,
INC.:
Charles G. Chappell Advanced Thermal Technologies, Inc
Helix Technology Corporation 3355 East La Palma Avenue
Mansfield Corporate Center Anaheim, CA 92806
Nine Hampshire Street
Mansfield, MA 02048-9171 Attention: Bruce Thayer
IN WITNESS WHEREOF, the Parties have caused this agreement to be
executed in duplicate as of the date first set forth above.
AGREED TO AND ACCEPTED BY:
HELIX TECHNOLOGY CORPORATION ADVANCE THERMAL TECHNOLOGIES, INC.
By: By:
/s/ Charles Chappell /s/ Bruce Thayer
---------------------------------- ------------------------------
Charles G. Chappell Name: Bruce Thayer
-------------------------
Director, Contracts Title: President
------------------------
Date: September 19, 2000 Date: Sept. 21, 2000
-------------------------
Ex. C - 3
