<PAGE>
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM 10-Q
(Mark One)
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 25, 1999
OR
[] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________
COMMISSION FILE NO. 33-9875
-----------------
BOSTON ACOUSTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-2662473
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR IDENTIFICATION NO.)
ORGANIZATION)
300 JUBILEE DRIVE
PEABODY, MASSACHUSETTS 01960
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(978) 538-5000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [x] No []
There were 5,079,264 shares of Common Stock issued and outstanding as of
November 5, 1999.
- -------------------------------------------------------------------------------
<PAGE>
Boston Acoustics, Inc.
INDEX
<TABLE>
<CAPTION>
PAGE
Part I: Financial Information
<S> <C> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets (Unaudited)-
March 27, 1999 and September 25, 1999 4
Consolidated Statements of Income (Unaudited)-
Three months and Six Months ended September 26, 1998
and September 25, 1999 6
Consolidated Statements of Cash Flows (Unaudited)-
Six Months ended September 26, 1998 and
September 25, 1999 7
Notes to Unaudited Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 11
Part II: Other Information
Items 1 through 6 15
Signatures 16
Exhibit Index 17
</TABLE>
2
<PAGE>
PART I: FINANCIAL INFORMATION
Item 1: Financial Statements
3
<PAGE>
Boston Acoustics, Inc. and Subsidiaries
Consolidated Balance Sheets
(Unaudited)
ASSETS
<TABLE>
<CAPTION>
MARCH 27, 1999 SEPTEMBER 25, 1999
Current Assets:
<S> <C> <C>
Cash and cash equivalents $ 2,096,246 $ 1,857,189
Accounts receivable, net of reserves of
approximately $463,000
and $413,000, respectively 12,586,919 13,529,291
Inventories 21,651,847 19,108,870
Deferred income taxes 1,524,000 1,524,000
Prepaid expenses and other current assets 478,174 990,604
----------- -----------
Total current assets 38,337,186 37,009,954
----------- -----------
Property and Equipment, at cost:
Land 1,433,365 1,805,861
Building and improvements 7,113,384 7,117,418
Machinery and equipment 10,890,563 12,441,436
Office equipment and furniture 3,862,578 3,972,299
Motor vehicles 360,963 361,831
----------- -----------
23,660,853 25,698,845
Less-accumulated depreciation
and amortization 9,699,448 11,029,724
----------- -----------
13,961,405 14,669,121
----------- -----------
Other Assets 940,226 897,320
$53,238,817 $52,576,395
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
<PAGE>
Boston Acoustics, Inc. and Subsidiaries
Consolidated Balance Sheets
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
MARCH 27, 1999 SEPTEMBER 25, 1999
<S> <C> <C>
Current Liabilities:
Accounts payable $ 2,465,201 $ 3,442,167
Accrued payroll and payroll-
related expenses 1,553,933 1,964,327
Dividends payable 425,967 431,736
Other accrued expenses 796,795 1,373,508
Accrued income taxes 359,689 2,097
Current maturity of line of credit 3,265,018 1,673,751
----------- -----------
Total current liabilities 8,866,603 8,887,586
----------- -----------
Line of credit, net of current portion 10,500,000 7,600,000
Commitments
Shareholders' Equity:
Commonstock, $.01 par value
Authorized -- 8,000,000 shares
Issued - 5,011,700 and 5,079,264
shares at March 27, 1999 and
September 25, 1999, respectively 50,117 50,792
Additional paid-in capital 636,581 899,049
Retained earnings 33,185,516 35,138,968
----------- -----------
Total shareholders' equity 33,872,214 36,088,809
----------- -----------
$53,238,817 $52,576,395
----------- -----------
----------- -----------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
5
<PAGE>
Boston Acoustics, Inc. and Subsidiaries
Consolidated Statements of Income
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
September 26, September 25, September 26, September 25,
1998 1999 1998 1999
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 26,350,362 $ 28,679,502 $ 47,850,326 $ 50,524,834
Cost of goods sold 17,462,999 20,041,878 31,452,937 34,847,102
------------ ------------ ------------ ------------
Gross profit 8,887,363 8,637,624 16,397,389 15,677,732
------------ ------------ ------------ ------------
Selling and
marketing expenses 2,356,617 2,694,756 4,396,908 5,215,929
General and
administrative expenses 1,098,351 1,296,701 2,100,884 2,396,524
Engineering and
development expenses 1,205,100 1,764,517 2,302,603 3,164,648
------------ ------------ ------------ ------------
Total operating expenses 4,660,068 5,755,974 8,800,395 10,777,101
------------ ------------ ------------ ------------
Income from operations 4,227,295 2,881,650 7,596,994 4,900,631
Interest income 21,643 22,330 53,402 46,646
Interest expense (125,957) (177,392) (322,463) (373,246)
------------ ------------- ------------- ------------
Income before provision
for income taxes 4,122,981 2,726,588 7,327,933 4,574,031
Provision for income taxes 1,560,000 1,054,000 2,746,000 1,762,000
------------ ------------ ------------ ------------
Net income $ 2,562,981 $ 1,672,588 $ 4,581,933 $ 2,812,031
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Net income per share
Basic $ .51 $ .33 $ .92 $ .56
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Diluted $ .48 $ .31 $ .86 $ .54
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Weighted average common shares outstanding
Basic 4,983,187 5,064,715 4,978,831 5,038,702
Diluted 5,300,982 5,320,674 5,319,593 5,254,793
Dividends per share $ .085 $ .085 $ .168 $ .17
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
6
<PAGE>
Boston Acoustics, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
SEPTEMBER 26, 1998 SEPTEMBER 25, 1999
------------------ ------------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 4,581,933 $ 2,812,031
Adjustments to reconcile net income to net cash
provided by operating activities-
Depreciation and amortization 1,405,703 1,631,016
Changes in assets and liabilities, net of acquisition --
Accounts receivable (1,702,490) (942,372)
Inventories (6,498,427) 2,542,977
Prepaid expenses and other current assets (151,820) (512,430)
Accounts payable 5,827,592 976,966
Accrued payroll and other accrued expenses 642,394 987,107
Accrued income taxes (142,075) (357,592)
------------ -------------
Net cash provided by operating activities 3,962,810 7,137,703
------------ -------------
Cash flows from investing activities:
Purchases of property and equipment, net (2,023,830) (2,037,992)
Increase in other assets (37,973) (121,358)
------------ -------------
Net cash used in investing activities (2,061,803) (2,159,350)
------------ -------------
Cash flows from financing activities:
Dividends paid (829,069) (852,810)
Stock dividend fractional share payment (480) --
Repayments of line of credit (4,500,000) (4,491,267)
Proceeds from exercise of stock options 227,189 126,667
------------ ------------
Net cash used in financing activities (5,102,360) (5,217,410)
------------ ------------
Decrease in cash and cash equivalents (3,201,353) (239,057)
Cash and cash equivalents, beginning of period 3,870,569 2,096,246
------------ ------------
Cash and cash equivalents, end of period $ 669,216 $ 1,857,189
------------ ------------
------------ ------------
Supplemental Disclosure of NonCash Financing Activities:
Dividends payable $ 424,097 $ 431,736
------------ ------------
------------ ------------
Supplemental Disclosure of Cash Flow Information:
Cash paid for income taxes $ 3,164,142 $ 2,540,147
------------ ------------
------------ ------------
Cash paid for interest $ 363,049 $ 371,020
------------ ------------
------------ ------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
7
<PAGE>
Boston Acoustics, Inc. and Subsidiaries
Notes to Unaudited Consolidated Financial Statements
(1) Basis of Presentation
The unaudited consolidated financial statements included herein have
been prepared by the Company, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission and include, in the
opinion of management, all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of interim period results.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. The
Company believes, however, that its disclosures are adequate to make the
information presented not misleading. The results for the three and six-month
periods ended September 25, 1999 are not necessarily indicative of results to be
expected for the full fiscal year. These financial statements should be read in
conjunction with the Company's Annual Report included in its Form 10-K for
fiscal year ended March 27, 1999.
(2) Inventories
Inventories are stated at the lower of cost (first-in, first-out) or
market and consist of the following:
<TABLE>
<CAPTION>
MARCH 27, 1999 SEPTEMBER 25, 1999
<S> <C> <C>
Raw materials and work-in process $ 9,425,814 $ 8,661,607
Finished goods 12,226,033 10,447,263
----------- -----------
$21,651,847 $19,108,870
=========== ===========
</TABLE>
Work-in-process and finished goods inventories consist of materials,
labor and manufacturing overhead.
(3) Net Income Per Common Share
The Company follows the provisions of SFAS No. 128, EARNINGS PER SHARE.
SFAS No. 128 establishes standards for computing and presenting earnings per
share (EPS) and applies to entities with publicly held common stock or potential
common stock. Basic EPS is computed by dividing net income by the weighted
average number of common shares outstanding for the period. Diluted EPS reflects
the potential dilution from common stock equivalents (stock options and
warrants). For the three-month period ended September 25, 1999, there were
207,877 shares, and for the six-month period there were 208,195 shares that have
been excluded from the weighted average number of common and dilutive shares
outstanding as their effect would be anti-dilutive. For the three-month and
six-month period ended September 26, 1998, no antidilutive shares have been
excluded for purposes of earnings per share.
During the three-month period ended September 25, 1999, the Company
issued 57,564 shares of common stock of Boston Acoustics, Inc. to a customer
as a result of the exercise of a warrant held by that customer. At September
25, 1999 there were no remaining warrants outstanding.
A reconciliation of the number of shares used in the calculation of basic
and diluted net income per share, is as follows:
8
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
September 26, September 25, September 26, September 25,
1998 1999 1998 1999
------------ ------------- ------------- -------------
<S> <C> <C> <C> <C>
Weighted
average common
shares outstanding 4,983,187 5,064,715 4,978,831 5,038,702
Dilutive effect of
assumed exercise of
stock options and warrant 317,795 255,959 340,762 216,091
--------- --------- --------- ---------
Weighted average
common shares
outstanding assuming
dilution 5,300,982 5,320,674 5,319,593 5,254,793
--------- --------- --------- ---------
--------- --------- --------- ---------
</TABLE>
(4)Segment Reporting
The Company adopted SFAS No. 131, DISCLOSURES ABOUT SEGMENTS OF AN
ENTERPRISE AND RELATED INFORMATION effective March 27, 1999. SFAS No. 131
requires certain financial and supplementary information to be disclosed on an
annual and interim basis for each reportable segment of an enterprise.
The Company has determined that it has two reportable segments: Core and
original equipment manufacturer (OEM) and Multimedia. Prior to fiscal 1998, the
Company operated as a single segment.
The Company's reportable segments are strategic business units that sell
the Company's products to distinct distribution channels. Both segments derive
their revenues from the sale of audio systems. They are managed separately
because each segment requires different selling and marketing strategies as the
class of customers within each segment is different. The Company's disclosure of
segment performance is based on the way that management organizes the segments
within the enterprise for making operating decisions and assessing performance.
The accounting policies of the segments are the same as those described in
the summary of significant accounting policies. The Company does not allocate
operating expenses between its two reportable segments. Accordingly, the
Company's measure of profit for each reportable segment is based on gross
profit.
THREE MONTHS ENDED SEPTEMBER 25, 1999
<TABLE>
<CAPTION>
OEM and
FISCAL 2000 CORE MULTIMEDIA TOTAL
<S> <C> <C> <C>
Net Sales $13,659,147 $15,020,355 $28,679,502
----------- ----------- -----------
----------- ----------- -----------
Gross Profit $ 4,914,756 $ 3,722,868 $ 8,637,624
----------- ----------- -----------
----------- ----------- -----------
THREE MONTHS ENDED SEPTEMBER 26, 1998
OEM and
FISCAL 1999 CORE MULTIMEDIA TOTAL
Net Sales $12,571,703 $ 13,778,659 $26,350,362
----------- ------------ -----------
----------- ------------ -----------
Gross Profit $ 5,133,919 $ 3,753,444 $ 8,887,363
----------- ------------ -----------
----------- ------------ -----------
</TABLE>
9
<PAGE>
SIX MONTHS ENDED ENDED SEPTEMBER 25, 1999
<TABLE>
<CAPTION>
OEM and
FISCAL 2000 CORE MULTIMEDIA TOTAL
<S> <C> <C> <C>
Net Sales $26,566,627 $23,958,207 $50,524,834
----------- ----------- -----------
----------- ----------- -----------
Gross Profit $10,099,393 $ 5,578,339 $15,677,732
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
SIX MONTHS ENDED SEPTEMBER 26, 1998
<TABLE>
<CAPTION>
OEM and
FISCAL 1999 CORE MULTIMEDIA TOTAL
<S> <C> <C> <C>
Net Sales $24,361,101 $23,489,225 $47,850,326
----------- ----------- -----------
----------- ----------- -----------
Gross Profit $ 9,690,696 $ 6,706,693 $16,397,389
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
10
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Results of Operations
The following table sets forth the results of operations for the three-month and
six-month periods ended September 26, 1998 and September 25, 1999 expressed as
percentages of net sales.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
September 26, September 25, September 26, September 25,
1998 1999 1998 1999
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales 100.0 % 100.0 % 100.0 % 100.0 %
Cost of goods sold 66.3 69.9 65.7 69.0
---- ---- ---- ----
Gross profit 33.7 30.1 34.3 31.0
---- ---- ---- ----
Selling and marketing
expenses 8.9 9.4 9.2 10.3
General & administrative
expenses 4.2 4.5 4.4 4.7
Engineering & development
expenses 4.6 6.2 4.8 6.3
---- ---- ---- ----
17.7 20.1 18.4 21.3
---- ---- ---- ----
Income from operations 16.0 10.0 15.9 9.7
Interest income (expense), net (0.4) (0.5) (0.6) (0.6)
---- ---- ---- ----
Income before provision for
income taxes 15.6 9.5 15.3 9.1
Provision for income taxes 5.9 3.7 5.7 3.5
---- ---- ---- ----
Net income 9.7 % 5.8 % 9.6 % 5.6 %
---- ---- ---- ----
---- ---- ---- ----
</TABLE>
Net sales increased 8.8%, from approximately $26,350,000 during the second
quarter of fiscal 1999 to approximately $28,680,000 during the second quarter of
fiscal 2000. For the six months ended September 25, 1999 net sales increased
approximately 5.6% from approximately $47,850,000 to approximately $50,525,000.
The overall sales increase was due to increases in both the OEM sales of
multimedia speaker systems to Gateway, Inc. ("Gateway"), a leading global direct
marketer of PC products, and sales of the Company's core products. OEM sales to
Gateway included the Digital BA735 subwoofer/satellite system introduced during
the first quarter of fiscal 2000, the Digital MediaTheater-TM-
11
<PAGE>
three-piece system, and the DigitalTheater-TM- 6000 Dolby-TM- DIGItal 5.1
channel Home Theater system. The current products are available either as a
component of certain pre-configured computer systems offered by Gateway, or
as an upgrade option on those configurations that do not include Boston
Acoustics' products as standard. The quantity of product sold as an upgrade
option could fluctuate significantly from quarter to quarter and have an
impact on the unit volume of OEM multimedia products. During the three-month
period ended September 25, 1999, core business sales were stimulated by new
product introductions. The VR-M50 and the VR-M60 Monitor bookshelf speaker
systems with suggested retails of $700 per pair and $1000 per pair
respectively, are real wood Monitor style speakers with die-cast baskets. The
System 10k, priced at $1,500, is a home theater speaker system consisting of
a set of five high-performance satellite speakers. The Company also
introduced three new powered subwoofer systems for use in home theater
systems. The PV800, PV600 and PV400 have suggested retails of $700, $449, and
$299 respectively.
The Company's gross margin for the three-month and six-month periods ended
September 25, 1999 decreased as a percentage of net sales due primarily to
the lower margin sales of the Company's OEM Multimedia products as compared
to the same period a year ago, and expenses associated with new product
introductions.
Total operating expenses increased in both absolute dollars and as a percentage
of net sales during both the three-month and six-month periods ended September
25, 1999. Selling and marketing expenses have increased in absolute dollars
primarily due to increased salaries and benefits relating to additional
personnel and increased cooperative advertising expenditures. General and
administrative expenses have increased slightly, both in absolute dollars, and
as a percentage of net sales for the three-month and six-month periods ended
September 25, 1999 compared to the corresponding periods a year ago. Engineering
and development expenses for the three-month and six-month periods ended
September 25, 1999 have increased in absolute dollars due primarily to increased
salaries and benefits relating to additional personnel and increased expenses
associated with new product development.
Net interest expense has increased in absolute dollars while remaining
relatively stable as a percentage of net sales during the three-month and
six-month periods ended September 25, 1999 compared to the corresponding
periods a year ago, primarily due to the utilization of working capital and
borrowings under the Company's line of credit borrowing during the fiscal
year.
The Company's effective income tax rate increased both for the three-month and
six-month periods ended September 25, 1999 compared to the same periods a year
ago. The increase is primarily due to a smaller proportion of the Company's
income being derived outside the U.S., thereby reducing the tax benefits
associated with the Company's foreign sales corporation.
Net income for the second quarter decreased from approximately $2,563,000 in
fiscal 1999 to $1,673,000 in fiscal 2000 while diluted earnings per share
decreased from $.48 to $.31 per share. Net income for the six-month period ended
September 25, 1999 decreased from approximately $4,582,000 in fiscal 1999 to
approximately $2,812,000 in fiscal 2000, while diluted earnings per share for
the six-month period decreased from $.86 to $.54 per share. The decrease in net
income for the three and six-month periods ended September 25, 1999 is primarily
the result of the sales increase, which was offset by the decrease in gross
profit and an increase in operating expenses as compared to the same period a
year ago.
Liquidity and Capital Resources
During the first six months of fiscal 2000, the Company financed its growth
principally with cash generated by operations. As of September 25, 1999 the
Company's working capital was approximately $28,122,000, a decrease of
approximately $1348,000 since the end of fiscal 1999. The decrease in working
capital was primarily due to the repayment made on the Company's line of credit
borrowings. The Company's cash and cash equivalents were approximately
$1,857,000 at September 25, 1999, a decrease of approximately $239,000 from
March 27, 1999 primarily due to the purchase of land adjacent to the Company's
corporate headquarters facility, tooling expenditures related to new products,
costs related to the Company's new state-of-the art automated woofer assembly
line, and the repayments made on the Company's line of credit borrowings. The
Company has two lines of credit with two banking institutions totaling
$26,500,000. At September 25, 1999 the Company had borrowings totaling
$9,000,000 under its $25,000,000 revolving credit agreement.
12
<PAGE>
The Company believes that its current resources are adequate to meet its
requirements for working capital and capital expenditures through fiscal 2000.
Significant Customers
The Company's financial results for the three-month and six-month periods
ended September 25, 1999 include significant OEM sales of multimedia speaker
systems to Gateway. These sales are pursuant to the Master Supply Agreement
between Gateway and Boston Acoustics, Inc. On July 19, 1999, the Company
entered into an extension of the Master Supply Agreement with Gateway. Since
the Master Supply Agreement with Gateway does not contain minimum or
scheduled purchase requirements, purchase orders by Gateway may fluctuate
significantly from quarter to quarter over the term of the agreement. The
loss of Gateway as a customer or any significant portion of orders from
Gateway could have a material adverse affect on the Company's business,
results of operations and financial condition. In addition, the Company also
could be materially adversely affected by any substantial work stoppage or
interruption of production at Gateway or if Gateway were to reduce or cease
conducting operations.
Year 2000 Compliance
The Company has undertaken an internal assessment of its operations,
including its information and financial systems and its manufacturing
equipment in order to determine the extent to which the Company may be
adversely affected by Year 2000 issues. During February 1999, the Company
updated its computer systems and applications to improve the scalability and
functionality of the Company's overall manufacturing, planning and inventory
related systems and to ensure that they are Year 2000 compliant. The Company
believes that the Company's updated computer system will be Year 2000
compliant. The financial impact to the Company of its Year 2000 compliance
programs has not been and is not anticipated to be material to its financial
position or results of operations in any given year. The Company also
commenced a self-assessment survey of its suppliers' Year 2000 compliance
status during fiscal 1999 and has received responses from approximately 69
percent of these suppliers. While the Company does not believe it will suffer
any major effects from the Year 2000 issue, it is possible that such effects
could materially impact future financial results, or cause reported financial
information not to be necessarily indicative of future operating results or
future financial condition. In addition, if any of the Company's significant
customers or suppliers do not successfully and in a timely manner achieve
Year 2000 compliance, the Company's business could be materially affected. At
present, the Company's contingency plans include but is not limited to
temporary solutions or work-arounds as part of the Company's Disaster
Recovery Plan and continuous review of safety stock levels and shipment
schedules from all suppliers.
Possible Adverse Effect of Euro Conversion
On January 1, 1999, 11 of the 15 member countries of the European Union
established fixed conversion rates between their existing currencies and a new
common currency called the "euro." This represented an initial step in a process
expected to culminate in the replacement of the existing currencies with the
euro. The conversion to the euro will have operational and legal implications
for some of our international business activities. The Company has begun
evaluating these implications, but the Company has yet to estimate the potential
impact on our business, operating results and financial condition. The Company's
preliminary judgement, however, is that the nature of the Company's business and
customers makes a material impact unlikely.
13
<PAGE>
Cautionary Statements
The Private Securities Litigation Reform Act of 1995 contains certain safe
harbors regarding forward-looking statements. From time to time, information
provided by the Company or statements made by its directors, officers, or
employees may contain "forward-looking" information which involve risk and
uncertainties. Any statements in this report that are not statements of
historical fact are forward-looking statements (including, but not limited to,
statements concerning the characteristics and growth of the Company's market and
customers, the Company's objectives and plans for future operations, and the
Company's expected liquidity and capital resources and the Company's ability and
the Company's suppliers' and customers' ability to replace, modify or upgrade
computer programs in ways to adequately address the Year 2000 issue). Such
forward-looking statements are based on a number of assumptions and involve a
number of risks and uncertainties, and accordingly, actual results could differ
materially. Factors that may cause such differences include, but are not limited
to: the continued and future acceptance of the Company's products, the rate of
growth in the audio industry; the presence of competitors with greater technical
marketing and financial resources; the Company's ability to promptly and
effectively respond to technological change to meet evolving consumer demands;
capacity and supply constraints or difficulties; and the Company's ability to
successfully integrate new operations. The words "believe," "expect,"
"anticipate," "intend" and "plan" and similar expressions identify
forward-looking statements. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date the statement
was made. For a further discussion of these and other significant factors to
consider in connection with forward-looking statements concerning the Company,
reference is made to Exhibit 99 of the Company's Form 8-K filed on July 18,
1996.
14
<PAGE>
PART II: OTHER INFORMATION
<TABLE>
<CAPTION>
<S> <C>
Item 1. LEGAL PROCEEDINGS
None
Item 2. CHANGES IN SECURITIES
None
Item 3. DEFAULTS UPON SENIOR SECURITIES
None
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Annual Meeting of the Shareholders of the Company held on August
10, 1999, shareholders acted affirmatively to elect nominees for
directors proposed by management. Each Director is to serve until the
next Annual Meeting of Shareholders and thereafter until his/her
successor is elected and qualified.
</TABLE>
<TABLE>
<CAPTION>
NOMINEE VOTES "FOR" VOTES "WITHHELD"
<S> <C> <C>
Andrew G. Kotsatos 4,498,399 11,468
Fred E. Faulkner, Jr 4,498,085 11,782
George J. Markos 4,490,519 19,348
Lisa M. Mooney 4,491,999 17,868
Gerald Walle 4,489,919 19,948
</TABLE>
Shareholders also voted to ratify the action of the Directors in
selecting Arthur Andersen LLP as auditors of the Company. A total of
4,475,252 votes were cast in favor of the proposal, 6,158 votes were
cast against, and there were 28,457 abstentions.
<TABLE>
<CAPTION>
<S> <C> <C>
Item 5. OTHER INFORMATION
None
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
Exhibit 10.l - Master Supply Agreement by and between Gateway,
Inc. and Boston Acoustics, Inc. dated July 19, 1999.
Exhibit 27 -- Financial Data Schedule
b) Reports on Form 8-K
</TABLE>
No reports on Form 8-K were filed during the quarter ended
September 25, 1999.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BOSTON ACOUSTICS, INC.
Registrant
Date: November 12, 1999 By: /S/ANDREW G. KOTSATOS
----------------------------
Andrew G. Kotsatos
Director, Chief Executive Officer
and Treasurer
Date: November 12, 1999 By: /S/FRED E. FAULKNER, JR.
----------------------------
Fred E. Faulkner, Jr.
President and Chief
Operating Officer
Date: November 12, 1999 By: /S/DEBRA A. RICKER-ROSATO
----------------------------
Debra A. Ricker-Rosato
Vice President and
Chief Accounting Officer
16
<PAGE>
EXHIBIT INDEX
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<CAPTION>
EXHIBIT NUMBER PAGE
<S> <C> <C>
Exhibit 10.l* Master Supply Agreement by and between Gateway, Inc. 20
And Boston Acoustics, Inc. dated July 19, 1999
Exhibit 27 Financial Data Schedule 70
</TABLE>
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* Confidential Treatment Requested
17
<PAGE>
EXHIBIT 10.l
* = THE MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
MASTER SUPPLY AGREEMENT
THIS MASTER SUPPLY AGREEMENT (the "Agreement") is effective this 19th
day of July, 1999, and entered into by and between GATEWAY, INC., a Delaware
corporation, 610 Gateway Drive, North Sioux City, SD 57049 and its Subsidiaries
and Affiliates (collectively, "Gateway") and BOSTON ACOUSTICS, INC., a
Massachusetts corporation, 300 Jubilee Drive, MA 01960 (hereafter "SUPPLIER").
1.0 PURPOSE
The purpose of this Agreement is to enter into a long-term, mutually
beneficial business relationship which will increase the total value of
the business relationship through continuous improvement processes. It
is understood between the parties that the use of the terms
"partnering" and "partnership" in this Agreement or any of the
Attachments hereto shall not create a legal partnership between the
parties. These terms are used solely to indicate a spirit of
cooperation and sharing.
2.0 MUTUAL UNDERSTANDING OF GOVERNING PRINCIPLES
2.1. The parties mutually understand and agree that the following principles
will govern this Agreement:
A. The relationship shall be viewed and managed as a whole rather than as
individual transactions.
B. Both Gateway and SUPPLIER are totally committed to continuous
improvement in cost, quality, productivity and technology.
C. Gateway and SUPPLIER shall manage total cost for mutual profitability.
D. The parties recognize that a shared destiny in business decisions will
result in a long-term, productivity-based relationship and agree to
share information on a confidential basis to achieve this end, provided
that neither party shall be obligated to disclose information in
violation of its confidentiality obligations or in violation of law to
one or more third parties.
E. This Agreement is in the English language only, which shall be
controlling in all respects. No translation, if any, of this Agreement
into any other language shall be of any force or effect in the
interpretation of this Agreement or in a determination of the intent of
either party hereto. All business transactions, documentation and
communications whether oral or written concerning this Agreement will
be done in the English language.
2.2. DEFINITIONS. Each of the following terms shall have the meaning in this
Agreement and attached exhibits as follows:
A. "PRODUCT(S)", as used in this Agreement, shall mean the individual
Product or Products identified in an Attachment A hereto.
B. "SPECIFICATIONS" as used in this Agreement means the specifications for
the Product(s), including regulatory requirements, to be sold by
Gateway as described in Attachment A and any references to other
technical documentation made therein.
C. "DEFECT(S)" as used in this Agreement shall mean a deficiency,
imperfection or insufficiency in the Product such that it is not fit
for ordinary purposes for which it was purchased, sold or used.
D. "ORDER", as used in this Agreement shall mean those purchase orders
that Gateway shall provide to SUPPLIER.
E. "CONFIDENTIAL INFORMATION", as used in this Agreement shall mean
components, types of systems, new product development, technical
information, data, formulas, patterns, compilations, programs, devices,
methods, techniques, marketing plans, business procedures, customer and
supplier lists, agreements with any suppliers, supplements, techniques,
or know-how, processes or other proprietary or confidential or
intellectual property information which is received from the other
under this Agreement, which is transmitted from the other party in
written form and which, if disclosed to the general public, would cause
harm to the transmitting party.
F. "EPIDEMIC FAILURES" means Product failures or Defects which exceed the
Defective Parts Per Million (DPPM) threshold established in Attachment
A of the Agreement.
<PAGE>
3.0 SCOPE
A. This Agreement shall apply to all divisions, subsidiaries, affiliates,
locations, and operations of Gateway and SUPPLIER.
B. This Agreement does not constitute a Order. Purchases under this
Agreement shall be made with Orders issued by the individual Gateway
subsidiary or affiliate purchasing departments which, in turn, shall be
liable under this Agreement only for the amount set forth in the
individual Orders.
4.0 TERM AND TERMINATION
A. This Agreement shall commence on the effective date entered on the
first page of the Agreement and shall expire at the end of a *
year period unless earlier terminated in accordance with Section 4.B
herein. In the event Attachment A is not renewed or is terminated in
accordance with Section 4.B, this Agreement and the remainder of
Attachments will remain in full force and effect.
B. In the event that either party commits a material breach of its
obligations hereunder, the other party may, at its option, terminate
this Agreement as to any specific Product or Order, or terminate this
Agreement in its entirety upon ninety (90) days' prior written notice.
Additionally, Gateway may terminate any one of the Attachments or this
Agreement upon ninety (90) days' prior written notice to SUPPLIER and
without penalty in the event that Gateway makes the determination that
technological innovations have occurred which will place Gateway at a
competitive disadvantage if SUPPLIER cannot offer the same or similar
technology at competitive price levels and within the time constraints
required by Gateway.
C. If either Gateway or SUPPLIER should (i) become insolvent, (ii) make
any assignment for the benefit of creditors, (iii) enter into any
compromise with creditors or a general agreement for referral of
payment with its creditor, (iv) make or suffer to be made any transfer
to any person, trustee, receiver, liquidator, or referee for the
benefit of creditors, (v) file a voluntary petition in bankruptcy, (vi)
suffer an involuntary petition in bankruptcy to be filed against it,
(vii) file any petition in any reorganization, arrangement, compromise,
readjustment, liquidation, or dissolution or similar relief for itself,
or (viii) become unable to pay its debts generally as they become due,
the other party shall have the immediate right to terminate this
Agreement upon delivery of written notice without any liability to the
insolvent party and without further notice to it.
5.0 PRICING
A. The prices and/or pricing formula for the Products listed on an
Attachment A shall be applicable to all Orders issued under this
Agreement. Mutually agreed to modifications and changes to quantity,
price and delivery schedules will be set forth in the individual
Order(s) for such Product(s).
B. * Prices. SUPPLIER agrees to treat Gateway as a
* . SUPPLIER represents that all of the prices,
warranties, benefits and other terms set forth hereunder are *
. If, during the
term of this Agreement or any renewal hereof, SUPPLIER enters into an
agreement with any other customer that contains *
are provided hereunder, then this Agreement shall be deemed
*
.
C. If Gateway is responsible for payment, then applicable taxes and other
charges such as duties, customs, tariffs, imports and government
imposed surcharges shall be stated separately on SUPPLIER's invoice.
D. Unless otherwise agreed upon in writing by Gateway, Gateway shall only
be responsible for paying the costs described on an Attachment A
hereto.
E. Gateway reserves the right to have SUPPLIER's records inspected and
audited to ensure compliance with this Agreement. At Gateway's option
or upon SUPPLIER's written demand, such audit will be performed by an
independent third party at Gateway's expense. However, if SUPPLIER is
found to not be in compliance with this Agreement in any way, SUPPLIER
shall
Page 2 of 14
<PAGE>
reimburse Gateway for all costs associated with the audit. The results
of such audit shall be kept confidential by the auditor, and, if
conducted by a third party, only SUPPLIER's relevant discrepancies with
this Agreement shall be reported to Gateway. Third party confidential
information shall not be supplied to Gateway unless Gateway has a
Confidential Disclosure Agreement with the third party.
6.0 ORDERS/INVOICES
A. Orders may be issued by the individual Gateway locations and subject to
the terms and conditions on the reverse side of the Order, unless there
is a conflict with the provisions of this Agreement. If a conflict
exists, the terms of this Agreement will take precedence over the terms
of any individual Order and the statement stating the Order terms
"become exclusive and binding" shall be void as relates to this
Section. Each Order shall define for the ordered Product the delivery
schedule, the price, a description, and the amount of ordered Product.
B. Invoices will be submitted by SUPPLIER to Gateway's location indicated
on the Order. Invoices will reference Gateway's Order number and will
contain such other information as Gateway may reasonably request. The
invoice payment terms for the Orders placed hereunder shall be net
* days from receipt of Product. If payment is made within *
* (days) from Gateway's receipt of Product Gateway shall be entitled
to a * discount on the amount due. Payment for Product
shall be paid by means of electronic transmittal to SUPPLIER'S
designated account.
7.0 DELIVERY DATES
A. Delivery dates stated on Gateway's Order shall be the date of receipt
of the Product at Gateway's location. SUPPLIER will make reasonable
efforts to deliver within * business days of the delivery dates
provided by Gateway. If SUPPLIER fails to deliver within * days
of the scheduled delivery date, SUPPLIER will pay for all expedited
shipping costs or Gateway may cancel the affected Order without
penalty. Gateway shall be entitled, without penalty, to reschedule or
cancel Product order quantities on any existing Order in the following
percentages:
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<CAPTION>
Reschedule Cancel
<S> <C> <C>
* * *
</TABLE>
B. Gateway and SUPPLIER will work together with regard to the rescheduling
and cancellation of Product to be delivered to Gateway in order to
maintain and achieve the maximum flexibility for Gateway. Without
limiting the generality of the preceding sentence, SUPPLIER agrees to
use commercially reasonable efforts to mitigate any Gateway liability
for Product cancellations beyond the percentages noted above by
returning to its suppliers, finding alternative purchasers or otherwise
using any applicable materials, parts, or subassemblies, that pertain
to any cancelled Product orders.
8.0 TITLE AND DELIVERY
A. Title of Product shall pass to Gateway upon physical acceptance of the
Product at the final agreed point of delivery.
B. Risk of loss shall be SUPPLIER's until delivered to Gateway's
manufacturing facility as set forth in Attachment B. Unless otherwise
specified, title will transfer at FOB (Free on Board) Gateway's
manufacturing facility as set forth in Attachment B. * is
responsible for the export license, paying any export taxes and fees,
customs and insurance, duties, tariffs, imports and government imposed
surcharges, and providing evidence of delivery of Product to the
carrier.
Page 3 of 14
<PAGE>
C. If SUPPLIER pays ocean transportation, other than prepaid bill to
Gateway, then at no time will ocean freight transportation charges
exceed those of Gateway ocean freight transportation charges. If
Gateway is responsible for ocean freight, SUPPLIER shall use a freight
forwarder with freight invoice billed directly to Gateway or SUPPLIER
may pay freight then invoice to Gateway.
D. SUPPLIER agrees to provide line item detail of cost of merchandise,
cost of freight and incidental costs when invoicing Gateway.
E. SUPPLIER will provide Gateway with contact information of SUPPLIER's
appointed freight agents and carriers, including telephone, facsimile
and after hours numbers of all appropriate personnel. Gateway will also
provide SUPPLIER with Gateway's approved contacts, including telephone,
facsimile and after hours contacts.
F. SUPPLIER will, together with Gateway, establish means by which Product
can be expedited to designated Gateway destinations. This program will
be made resident with SUPPLIER and all Gateway designated destinations.
G. SUPPLIER and Gateway will monitor transportation pricing and service on
a quarterly basis. In the event that it is determined that either
price, service or a combination of both do not meet the requirements of
Gateway, re-negotiation of service/ pricing will be mandatory,
including conversion of transportation service to appointed Gateway
carriage.
H. At no time will Gateway be responsible for freight charges in excess of
amounts agreed upon between SUPPLIER and Gateway jointly, or in excess
of what Gateway could reasonably expect to pay using Gateway's own
designated carriage.
I. SUPPLIER shall use reasonable efforts based upon the rolling forecast
to deliver the Products in the quantities and time periods specified in
Gateway's Orders.
9.0 BUSINESS REVIEWS
The parties shall hold business review meetings periodically to
evaluate the overall performance of each of the parties and the status
of continuous improvement projects.
10.0 CONFIDENTIAL INFORMATION
A. The parties understand and agree that information concerning any of the
information set forth herein and in Attachment A is confidential to
each of them and shall, except as may otherwise be required by law,
only be disclosed to third parties, in writing or orally, upon the
specific prior written agreement of the parties. The recipient of
Confidential Information may disclose Confidential Information in
accordance with judicial or other government order provided recipient
shall promptly notify the discloser of such order and allow discloser
to seek to maintain the confidentiality of information by providing the
information under seal, protective order or equivalent. The parties
agree to be bound by the terms and conditions of the Confidential
Disclosure Agreement executed between the parties on December 23, 1996.
B. SUPPLIER acknowledges the importance Gateway places on protecting the
privacy of its end users. Accordingly, SUPPLIER shall use its best
efforts to safeguard any individually identifiable data acquired from
or about end users, including without limitation, names, addresses, or
credit information, against unauthorized access or use. In addition,
SUPPLIER shall not, without Gateway's prior written consent, use, sell,
license, lease or otherwise transfer such data to any third party, or
export such data to any location outside of the country in which
SUPPLIER acquired such data. In the event Gateway agrees to allow
SUPPLIER to use end user data to send marketing materials to end users,
SUPPLIER shall: (i) allow each end user to access any data SUPPLIER may
have regarding such end user; (ii) allow each end user to correct any
incorrect or incomplete data regarding such end user; (iii) comply with
any request by an end user to remove such end user's name from the
customer lists maintained by SUPPLIER; and (iv) upon receipt of a
request from described in clause (iii), provide no further marketing
materials to such end user. Upon the expiration or earlier termination
of this Agreement, SUPPLIER shall return to Gateway all lists and other
data regarding end users then in SUPPLIER's possession. SUPPLIER shall
not retain any copies of such data in hard copy or electronic form.
Page 4 of 14
<PAGE>
11.0 WARRANTY, WARRANTY RETURNS, EPIDEMIC FAILURES
A. SUPPLIER represents, warrants and covenants that all Products purchased
hereunder shall comply with the following warranties:
i. The Product will comply with all Gateway-approved Product
descriptions and Specifications, and other printed information
relating to the Product provided to Gateway by SUPPLIER and in
effect as of the date of the applicable Order.
ii. The Products (a) will be new, (b) will be free from Defects in
manufacture, materials and design, (c) will function properly
under ordinary use, (d) for a period of thirty-six (36) months
from the date of delivery, will perform in accordance with all
applicable Specifications and documentation for such Products, and
(e) will be Year 2000 compliant as set forth more specifically in
Attachment D hereto.
iii. Title to all Products purchased by Gateway, no matter where
delivered, shall be free and clear of all liens, encumbrances,
security interests, or other adverse interests or claims.
B. The aforementioned warranties shall not apply to (a) any Product which
has been altered or changed after receipt by Gateway without SUPPLIER's
authorization (b) any failure of the Product to conform to such
warranties as a result of improper maintenance, installation or
service, operation or use contrary to furnished instructions, (c) the
transportation or improper storage of such items, or (d) any abuse,
misuse, neglect, or negligence of Gateway or its end-users. It is
understood and agreed that the Product shall be used in connection with
and as components of a larger system, and that such inclusion into the
larger system does not and shall not constitute an unauthorized
alteration or change in the Product; provided that the design and
implementation of such inclusion into the larger system is in
conformity with Specifications.
C. The warranties set forth in Sections 11, 12, 17, 18, and 27 are the
only warranties made by SUPPLIER to Gateway with respect to the
Products purchased hereunder. SUPPLIER DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WITH REGARD TO PRODUCTS SOLD PURSUANT TO THIS
AGREEMENT AND ATTACHMENTS, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR
LIABILITY ARISING UNDER SECTION 12 (INFRINGEMENT INDEMNIFICATION) OR
SECTION 15 (PRODUCTS LIABILITY), IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THE SALE, USE OR PERFORMANCE OF PRODUCT.
D. For purposes of this Agreement, "Warranty Returns" shall be defined as
Products that have been delivered to Gateway or by Gateway to its
customers and rejected due to Defect(s).
i. All Warranty Returns will require a Return Material Authorization
(RMA) number, which SUPPLIER will issue within 48 hours upon
receipt of a written notice from Gateway identifying the Defective
Products and the quantity thereof. If Gateway does not receive the
RMA number within 48 hours, Gateway will issue an RMA number that
will be honored by SUPPLIER. SUPPLIER will pay all costs
associated with the return of the product to SUPPLIER.
Notwithstanding anything to the contrary herein, in the event a
Defective Product has been discovered and additional Products with
the same Defect are already in transit, SUPPLIER is responsible
for reworking such defective equipment into Product that is free
from Defects and meets mutually agreed upon Specifications.
ii. All Warranty Returns shall be returned to SUPPLIER within thirty
(30) days of issuance of the RMA notice.
iii. All Warranty Returns shall be for credit only and shall be debited
by Gateway against outstanding invoices payable to SUPPLIER unless
otherwise stated in the SOW (Attachment G).
Page 5 of 14
<PAGE>
iv. SUPPLIER will acknowledge receipt of returned Product and the
quantities received within five (5) business days of receipt of
the returned Product from Gateway. If SUPPLIER fails to give
written acknowledgment of receipt and quantities received within
the time stated, SUPPLIER shall be deemed to have received from
Gateway the Products and quantities listed on the vendor return
form.
v. SUPPLIER shall support Gateway product return addresses for each
Gateway region: Americas, Asia Pacific (APAC) and Europe / Middle
East / Africa (EMEA).
vi. SUPPLIER and Gateway shall mutually agree to procedures and
guidelines (Attachment G-Statement of Work) for the conduct of
business for returned Products in the United States. This
procedure may be modified from time to time by mutual consent of
the parties and shall be part of the Agreement (See Attachment G).
SUPPLIER accepts financial responsibility for all warranty related
support costs incurred by Gateway associated with the handling of
quality Defects incurred within the warranty period, when such Defects
exceed the DPPM established in Attachment A. Such costs shall include,
but are not limited to, the following: transportation, labor associated
with technical assistance, customer service, receiving, shipping,
processing, testing, etc.; and inventory devaluation should `repaired'
Product be returned in lieu of `new'. SUPPLIER agrees to reimburse
Gateway upon receipt of an invoice or debit memo. If a debit memo is
issued in lieu of an invoice, SUPPLIER agrees that such monies may be
deducted from any outstanding invoices yet to be paid. Attachment E
further describes warranty related support costs and is referred to as
`Total Adjusted Cost', or more commonly known as the total cost of
ownership. Gateway expects suppliers to consistently improve their
product quality. While zero Defects may not be attainable, the
Defective Parts Per Million (DPPM) goal for commodities covered by this
Agreement (see Attachment A) will be reduced over time to constantly
improve quality. Gateway agrees to waive this section for Boston
Acoustics as long as Boston Acoustics adheres to the requirements
outlined in Attachment G (Statement of Work).
E. Isolated incidences of Product Defect or failure are to be dealt with
in accordance with the standard Warranty Return procedures outlined in
paragraph D above. However, the same Defect or failure which occurs
repeatedly in a Product is referred to in Gateway nomenclature as an
"Epidemic Failure." For purposes of this Agreement, an "Epidemic
Failure" shall be defined as a single failure type, if the failure
occurs in * of any Product
shipped or Total Installed Base (total of SUPPLIER Product(s) installed
in Gateway systems) under this Agreement to Gateway during any *
month period. As an integrator and original equipment manufacturer
of personal computer systems, Gateway employs a "just-in-time"
manufacturing methodology and does not have a wealth of supplier
components in reserve. Gateway's manufacturing approach is reiterated
here to emphasize that an Epidemic Failure in a component can be
catastrophic and paralyze production. Time is of the essence concerning
Epidemic Failures and Gateway will strictly enforce the following
procedures.
i. SUPPLIER accepts full responsibility for Product Defects. SUPPLIER
shall respond to formal written corrective action request (CAR).
There are three (3) types of CARs: "Critical" (an identified
safety Defect, non-shippable, causes line shutdown, GREATER THAN
* of field failure, cannot be sorted); "Major" (not
identified as a Safety Hazard, causes line shutdown, can be
sorted); or "Minor" (not identified as a Safety Hazard, no line
shutdown situation, can be sorted). Upon notification or receipt
of samples for a failure analysis, SUPPLIER must respond with
corrective actions in accordance with the following "time is of
the essence" periods: Critical failures -- within *
business days; Major failures -- within * business
days; and Minor failures -- within * business days.
ii. All Corrective Actions must be corrected by upgrading all of the
Products shipped within the * month period prior to
Gateway's notice to SUPPLIER thereof. SUPPLIER shall provide parts
for the upgrades, perform or have performed all associated labor,
and pay for shipping of all replacement Products to Gateway or end
user as the case may be.
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<PAGE>
12.0 INFRINGEMENT INDEMNIFICATION
A. SUPPLIER hereby represents and warrants that neither the Products nor
the manufacture, use, sale, or distribution thereof infringe any
patent, copyright, trade secret, trademark, or other intellectual
property rights of any third party.
B. SUPPLIER shall defend, indemnify and hold Gateway, its directors,
officers, employees, distributors, dealers, affiliates, insurers and
customers, harmless against any claim, suit, action or proceeding
(collectively, "Claims") brought against Gateway or its customers based
on a claim that any Product or the manufacture, use, sale or
distribution of any Product purchased by Gateway hereunder constitutes
an infringement of any patent, copyright, trademark, trade secret or
other intellectual property right of any third party; provided that
Gateway notifies SUPPLIER in writing and provides, at SUPPLIER's
expense, the authority, information and assistance reasonably necessary
for SUPPLIER to defend or settle such Claims. SUPPLIER shall pay all
damages and costs incurred by or awarded against Gateway or Gateway's
customers related to or resulting from such Claims. If, as a result of
any such Claim, Gateway is enjoined from using, selling or distributing
any Product purchased by Gateway hereunder, SUPPLIER shall, at its own
expense, either (a) procure the right for Gateway and Gateway's
customers to use, sell and distribute such Product; (b) replace the
infringing Products with non-infringing products that have
substantially the same quality and performance; (c) modify any
infringing Product so it becomes non-infringing; or (d) authorize
Gateway to return the infringing Product and refund to Gateway the full
purchase price and any direct costs incurred by Gateway in connection
with such return.
13.0 SERVICE PARTS
A. SUPPLIER agrees to provide Gateway * days' written notice
prior to the discontinuance of any Product purchased by Gateway
pursuant to this Agreement. Upon notification by SUPPLIER, SUPPLIER
shall allow Gateway to make a final purchase of such discontinued
Product at prices agreed to between the parties. SUPPLIER acknowledges
and agrees that Gateway's final purchase of such Product may be in a
quantity significantly higher than those reflected in any prior Orders
or forecasts from Gateway regarding such Product, and SUPPLIER shall
use commercially reasonable efforts to deliver the quantity specified
in Gateway's final Order.
B. During the term of this Agreement, and for * years after the
termination of this Agreement, SUPPLIER shall make services and parts
(including, if no longer available, a functionally equivalent part of
no lesser quality than the original part) available to Gateway at a
mutually agreed upon price.
C. During the term of this Agreement, and for * years after the
termination of this Agreement, SUPPLIER shall make available to Gateway
custom plastics, custom packing material, and other custom components
for use by Gateway in providing on-going Product support after
SUPPLIER's warranty period has ended. The * year period commences for
each Product following the last sale of that Product by Gateway.
14.0 HAZARDOUS CONDITIONS
A. In the event that SUPPLIER or Gateway learns of any issue relating to a
potential safety hazard or unsafe condition in any of the Products
purchased by Gateway hereunder (a "Safety Hazard"), or is advised of a
Safety Hazard by competent authorities of any government having
jurisdiction over such Product, it will immediately advise the other
party by the most expeditious means of communication. The parties shall
cooperate in communicating with the public and governmental agencies,
and in correcting any Safety Hazard that is found to exist.
B. Each party shall consult with the other party prior to making any
statements to the public or to any governmental agency concerning
issues related to a Safety Hazard, except in circumstances in which a
failure to do so would prevent the timely notification which may be
required to be given under an applicable law or regulation.
Page 7 of 14
<PAGE>
C. SUPPLIER shall be solely responsible for all expenses associated with
the correction of a Safety Hazard caused by or associated with any
Product produced by SUPPLIER, including without limitation, reasonable
attorneys' fees, court costs, and other litigation expenses.
15.0 PRODUCT LIABILITY
A. SUPPLIER agrees to indemnify, protect, defend, and hold harmless
Gateway and its directors, officers, employees, distributors, dealers,
affiliates, insurers, and customers during the term of this Agreement
and any time thereafter against any and all costs and expenses
(including, but not limited to, reasonable attorneys' fees and
expenses, overhead, settlements, judgments, and court costs) arising
out of or related to any claim (i) arising out of or relating to the
death of or injury to any person or any damage to tangible property or
(ii) alleging or asserting in whole or in part, (a) any failure of the
Product to comply with the applicable Specifications, warranties, and
certifications under this Agreement or otherwise published by SUPPLIER;
(b) negligence or fault on the part of SUPPLIER in the design, testing,
development, manufacture, marketing, or selling of a Product or
undertaking any other actions with respect to a Product or parts
thereof, or (c) other claims of product liability, strict product
liability, or any variation thereof.
B. Gateway agrees to protect, defend, hold harmless and indemnify in a
similar fashion from and against any liability, claim, demands, or cost
or expense that is the result of design or other special requirements
specified in writing by a duly authorized representative of Gateway and
actually incorporated into a Product over the written objection of
SUPPLIER.
C. SUPPLIER shall secure and maintain at its own expense the following
insurance with companies satisfactory and acceptable to Gateway and
shall furnish to Gateway certificates evidencing such insurance prior
to commencing work under this Agreement and thereafter as required by
Gateway. Said certificates shall contain a provision whereby the policy
and/or policies shall not be canceled or altered without at least
* days prior written notice to Gateway. The following minimum
insurance coverages will be continuously maintained for the term of
this Agreement and for * years thereafter:
i. Workers' Compensation and Employer's Liability Insurance
covering SUPPLIER's Employees which shall fully comply with
the statutory requirements of all state laws as well as
federal laws which may be applicable.
ii. Employee Dishonesty/Blanket Insurance with each occurrence and
aggregate limit of *
.
THE FOLLOWING COVERAGES MUST BE SCHEDULED ON UMBRELLA LIABILITY:
iii. Commercial General Liability Insurance with a general
aggregate of * .
iv. Errors and Omissions Insurance with a minimum for each
occurrence and aggregate limit of *
.
v. Product Liability Insurance with each occurrence and aggregate
limit of * .
vi. Umbrella Liability Insurance coverage with a minimum combined
each occurrence limit of *
.
With the exception of Workers' Compensation, every contract of
insurance obtained by SUPPLIER hereunder shall name Gateway as an
additional insured therein.
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16.0 PRODUCT RECALL
A. In the event that any of the Product are found by SUPPLIER, Gateway, or
any governmental agency or court having jurisdiction over such Product,
to contain a Safety Hazard or other Defect or condition that requires
or would make advisable a rework or recall of such Product, such party
shall promptly communicate all relevant facts to the other party.
SUPPLIER shall promptly undertake all corrective actions, including
those required to meet all obligations imposed by laws, regulations, or
orders, and shall file all necessary papers, corrective action
programs, and other related documents required under applicable law or
regulation; provided that Gateway shall reasonably cooperate with and
assist SUPPLIER in any such filing and correction action, at SUPPLIER's
expense; and, provided further, that nothing in this section shall
preclude Gateway from taking such action as may be required of it under
any applicable law or regulation or business purpose. SUPPLIER shall
perform all necessary repairs or modifications to the Product at its
sole expense.
B. The parties recognize that it is possible that other
SUPPLIER-manufactured products might contain the same Safety Hazard,
Defect or other condition described in the preceding paragraph. Gateway
and SUPPLIER agree that any recall involving any Product purchased by
Gateway shall be treated separately and distinctly from similar results
of SUPPLIER's brand products; provided that such separate and distinct
treatment is lawful and that SUPPLIER shall in no event fail to provide
at least the same protection to Gateway with regard to such Product as
SUPPLIER provides to its other customers in connection with a recall of
such Product or other SUPPLIER products. Each party shall consult the
other prior to making any statements to the public or a governmental
agency concerning issues relating to any product recall of a Product,
except where such consultation would prevent timely notification
required to be given under any such law or regulation.
17.0 ASBESTOS, PCBS, CFCS AND TOXICITY CERTIFICATION
SUPPLIER certifies, based on its qualitative determination, that the
Product or parts it provides to Gateway under this Agreement do not
contain asbestos or PCBs, nor were they manufactured with CFCs.
SUPPLIER covenants that it shall not introduce into the Product or any
replacements any materials that contain asbestos or PCBs, nor shall it
manufacture any Product with CFCs. Foam packaging is acceptable.
18.0 PRODUCT ACCEPTANCE/SUPPLIER QUALITY ENGINEERING PROGRAM
A. Gateway has an established Supplier Quality Engineering (SQE) Program.
The function of the SQE Program is to ensure that all suppliers that
submit computer commodities to Gateway meet all performance
requirements. If quality issues arise, Gateway SQE will generate a
corrective action request (CAR). SUPPLIER shall agree to support and
respond to the CAR within the time frame requested, based on the
critical nature of the issue.
B. SUPPLIER shall commit to the established process quality and
performance goals established by Gateway for a continuous quality
improvement program. Performance goals will be established between
SUPPLIER and Gateway SQE for each commodity type based on the
technology of that commodity.
C. Design verification testing (DVT) is to be performed on all newly
designed Products purchased by Gateway. DVT testing is to be completed
and results submitted to Gateway's supplier quality engineer
responsible for the Product. DVT results are to be reported with
respect to the original Gateway-approved design Specification.
D. SUPPLIER shall submit a capability analysis which reflects SUPPLIER's
ability to manufacture the Product. The capability analysis shall be
based on the total process yield to expected design goals.
E. Reliability testing shall be performed using * .
For purposes of this Agreement
*
. Reliability testing shall be performed at *
beyond the
Page 9 of 14
<PAGE>
agreed upon design specification limitations set by Gateway's Global
Product Organization (GPO) and SUPPLIER.
F. The design shall specify the expected process, test and field
performance level of each Product. SUPPLIER shall demonstrate the
actual mean time between failures (MTBF) for each Product during a site
risk analysis survey.
G. SUPPLIER shall perform a structural design test using Gateway's
standard for testing, unless SUPPLIER's test procedure is more rigid
than Gateway's test procedure. Testing shall include all packaging used
during transportation of the Product directly to Gateway's customer.
H. Supplier Engineering Change Requests (SECR) will be completed pursuant
to the guidelines provided to SUPPLIER and will be routed to the
appropriate supplier quality engineer in North Sioux City, South
Dakota, or other designated location. Gateway's supplier quality
engineer will ensure that all SECR's are managed from submission to
notice of approval.
I. Regulatory approval is the responsibility of SUPPLIER and SUPPLIER
shall ensure that all newly designed or changed Products meet Gateway's
dB margins in conjunction with FCC industrial standards as contained in
the Specifications for the Product and with standards for other
countries as may be required by Gateway. SUPPLIER shall ensure that all
engineering changes that affect the original test grant are tested and
that grant status is maintained. SUPPLIER represents and warrants that
SUPPLIER has obtained the necessary regulatory approvals for the
Product as set forth in the Specifications.
J. Product purchased pursuant to this Agreement, as well as any Product
that is combined with other technology, shall meet all established
industry operating standards for that commodity and technology.
K. Gateway requires its suppliers to complete the SQE procedure
successfully in order to become a Preferred Supplier. SUPPLIER shall
follow Gateway's reasonable instructions and otherwise work with
Gateway to achieve certification as a Preferred Supplier. SUPPLIER
acknowledges and agrees that the criteria for Preferred Supplier
Certification have been provided to SUPPLIER.
L. Incoming Quality Assurance sample size will be based on technology and
Gateway testing requirements.
M. None of the foregoing shall limit any warranties or affect the quality
level of Product ordered by Gateway.
N. SUPPLIER will provide dedicated engineering and technical resources
including, but not limited to, engineering support, compatibility
testing support, general product support and regulatory testing support
for all Product purchased by Gateway pursuant to this Agreement.
19.0 FORCE MAJEURE
In the event that either party is prevented from performing or is
unable to perform any of its obligations under this Agreement due to
any Act of God, fire, casualty, flood, war, strike, lockout, epidemic,
destruction of production facilities, riot, insurrection, or any other
cause beyond the reasonable control of the party invoking this section,
such party's performance shall be excused, and the time for the
performance shall be extended for the period of delay or inability to
perform due to such occurrences; provided, that such party shall use
its best efforts to mitigate the effects of such occurrences, and such
party shall give prompt written notice to the other party thereof.
However, if such inability to perform continues for fifteen (15) days,
the other party may terminate this Agreement without penalty and
without further notice.
20.0 APPLICABLE LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of South Dakota without resort to conflict of law
principles. The parties agree that any legal action by either party
against the other relating to this Agreement or Attachment as contained
herein shall be commenced in a court of competent jurisdiction in the
State of South Dakota. The parties hereby agree that the United Nations
Convention on the International Sale of Goods shall not govern or
otherwise apply to the transactions contemplated under this Agreement.
Page 10 of 14
<PAGE>
21.0 DISPUTE RESOLUTION
Each company shall designate in writing to the other the following
individuals for the following purposes:
A. Designated Representatives. Each company shall designate one Primary
Representative. The Primary Representatives shall also act as the
designated persons to resolve disputes under Section 22.B below.
B. Senior Officers. Each company shall designate a Senior Officer of the
company, who is not an attorney, who shall serve for the purpose of
resolving disputes under Section 22.C below.
C. Executive Officers. Each company shall designate its Chief Executive
Officer or its Chief Operating Officer who shall serve for the purpose
of resolving disputes under Section 22.D below.
D. Changes in Designation. Each party may change such designated
representatives within the parameters called for hereunder for such
representatives upon the giving of advance written notice to that
effect.
22.0 PROCEDURES FOR HANDLING OF DISPUTES
All disputes under this Agreement, of any nature whatsoever, shall be
handled in strict accordance with the following procedure, and the
parties agree that legal remedies cannot be resorted to until such time
that each step of this procedure has been followed:
A. The party raising a dispute shall formalize the dispute by setting
forth the issues relating thereto in written notice submitted to the
other party (a "Dispute Notice"). The submitting party shall include
with a Dispute Notice backup material sufficient, in the submitting
party's reasonable judgment, to substantiate the dispute and the amount
claimed thereunder. Each Dispute Notice shall be delivered to the other
party in accordance with Section 23 of this Agreement.
B. The Primary Representatives of the parties shall attempt to resolve the
dispute within thirty (30) days from submittal of the Dispute Notice.
The parties must mutually agree to the resolution.
C. Failing resolution under paragraph 22.B above, the dispute, including
all supporting documentation and the positions taken by the parties
during step B above, shall be submitted to the Senior Officers
designated by the parties in accordance with Section 21.B. The Senior
Officers of the parties shall attempt to reach a mutually agreed-upon
resolution of the dispute within thirty (30) days after the submittal
of the dispute to them.
D. Failing resolution under paragraph 22.C above, the dispute, including
all supporting documentation and the positions taken by the parties
during steps B and C above, shall be submitted for resolution to each
party's respective Chief Executive Officer or Chief Operating Officer
designated in accordance with Section 21.C above.
E. Failing resolution under paragraph 22.D above within thirty (30) days
after the dispute is submitted to the parties respective Chief
Executive Officers or Chief Operating Officers, then all disputes under
this Agreement shall be submitted to arbitration under the rules of the
American Arbitration Association ("AAA"). The arbitration shall take
place in the State of South Dakota and all proceedings shall be in the
English language. The dispute shall be decided by one neutral
arbitrator, to be selected by the parties by providing to each other a
list of three (3) names. If the parties are unable to initially agree
on the arbitrator, the selection process will be as follows: the
parties will submit the initial list of six (6) names to the AAA; each
party will rank the six (6) names submitted in the order of their
choice; the first time a name in order of ranking on each list is
common (the level of ranking need not be common), that person shall be
selected as the arbitrator. Failing agreement under the procedure
described in the preceding sentence, the selection shall be made by the
AAA under its established rules. The parties shall agree on mutually
acceptable procedures and standards for the arbitration, including, but
not limited to: the authority of the arbitrator with respect to
discovery and procedures; the form of evidence and/or witness evidence
and presentation; the submission and/or hearing procedures; and other
such matters; provided, however, that the scope of the question to be
decided by the arbitrator shall be narrowly construed and shall be
limited to the express issue presented; and, provided, further, that
Page 11 of 14
<PAGE>
the arbitrator shall have no authority to award incidental, exemplary,
special, indirect, consequential or punitive damages to or against
either party. In the event the arbitrator attempts to or does award
incidental, exemplary, special, indirect, consequential or punitive
damages in favor of either party, the jurisdiction of the arbitrator
shall be and is hereby automatically terminated and any decision as to
such damages shall be void and of no force or effect. The party
prevailing as to the entire claim shall have its costs and the other
costs of arbitration, including the arbitrator's fees, if any, paid by
the other party. If neither party prevails entirely, the arbitrator may
apportion such costs in accordance with the disposition of the matter.
The decision of the arbitrator shall be final and binding upon the
parties, except as to the propriety of the scope of the award and
disposition; and provided that the decision of the arbitrator must not
be against public policy, nor may it be arbitrary or capricious, as
determined by whether it is fairly supported by the evidence presented
(including the failure, if any, of either party to comply with the
agreed-upon arbitration procedures), which shall mean that the decision
of the arbitrator must be such that it cannot be said that no
reasonable person could reasonably and logically have reached such
result based upon the said evidence.
F. Failure to Act. Failure to take any action on the part of either or
both parties under any step of this procedure for a specified thirty
(30) day period shall automatically move the dispute process to the
next step in the procedure. After having submitted a Dispute Notice in
accordance with paragraph 22A above, the completion of the thirty (30)
day time period in each step shall be deemed to constitute notice to
initiate the next step of the procedure.
23.0 NOTICES
Notices and other communications under this Agreement shall be in
writing and sent by certified mail, return receipt requested, addressed
to the other party at its address as follows, provided that either
party may change its address by written notice thereof.
Gateway: 610 Gateway Drive
North Sioux City, SD 57049
Attn: Vice President of Supply Management
PHONE#: 605.232.2145
FAX#: 605.232.1232
Copy to: Gateway Law Department
Attn: General Counsel
SUPPLIER: Boston Acoustics, Inc.
300 Jubilee Drive
Peabody, MA 01960
Attn: Michael Chass, Director of Marketing
PHONE#:978.538.5120
FAX#: 978.538.5100
24.0 USE OF SUPPLIER DOCUMENTS
SUPPLIER hereby grants Gateway the right to use, display, modify,
reproduce, publish, and sell all Product documentation including, but
not limited to all instruction or user manuals related to the Products
(the "Documentation"), in connection with Gateway's marketing and use
of computer systems that include one or more Products purchased
hereunder. Without limiting the generality of the preceding sentence,
Gateway shall be authorized to include the Documentation or portions
thereof in any printed material Gateway creates, including but not
limited to, Gateway's manuals, data sheets, faxable materials, training
materials, brochures, and catalogs, provided that any modifications
made by Gateway shall not render the Product Documentation incomplete
or inaccurate. SUPPLIER further grants Gateway the right to preload or
otherwise distribute and transmit in electronic form, including but not
limited to CD-ROM, diskette, facsimile, videotape,
Page 12 of 14
<PAGE>
Bulletin Board Service or telephone line, all Documentation, as well as
packaging copy and artwork, as a component of the Product. Gateway
shall have the right to continue using the Documentation after the
expiration or earlier termination of this Agreement to support Products
purchased prior to such expiration or termination and included in
systems sold to customers.
Supplier hereby grants Gateway the royalty-free right to use SUPPLIER'S
trademarks, trade names and/or logos (the "Marks") solely in
conjunction with the development and distribution of advertising and
other promotional materials involving SUPPLIER'S Product(s). SUPPLIER
represents, warrants and agrees that it currently possesses, and at the
time of granting such rights to Gateway, SUPPLIER will possess, and
will maintain for the term of this Agreement, the appropriate licenses,
registrations, permits and any other forms, rights, titles, interests,
permissions, or approvals necessary to grant Gateway the royalty-free
right to use the Marks as set forth in Attachment H. In consideration
for the grant of these rights, SUPPLIER acknowledges and agrees that it
will derive a good and valuable benefit from the distribution and
publication of any advertising and promotional materials bearing the
Marks.
25.0 INTERNATIONAL TRADE COMPLIANCE
SUPPLIER shall complete the Attachment F, International Trade
Information Form (Trade Form) and furnish it to Gateway not later than
ten (10) business days after the execution of any Order or change in
information pertaining to Product ordered under this Agreement. The
information requested in the Trade Form is required by Gateway to
comply with its legal obligations. SUPPLIER shall provide Gateway with
timely written notice of changes to any of the information provided to
Gateway pursuant to this paragraph. SUPPLIER agrees to indemnify and
hold Gateway harmless pertaining to errors or omissions or SUPPLIER's
failure to disclose pertaining to SUPPLIER-certified import or export
data. SUPPLIER agrees that it shall not export or re-export any
technical data, software and/or U.S.-origin Product that SUPPLIER
receives from Gateway except in compliance with all applicable U.S.
export control regulations, specifically including but not limited to
the U.S. Export Administration Regulations. This obligation is in
addition to any authorization required to be obtained from Gateway and
shall survive the expiration or earlier termination of this Agreement.
26.0 FEDERAL ACQUISITION REGULATIONS
Contract clauses from the Federal Acquisition Regulations ("FAR") (48
C.F.R. Chapter 1) follow and are incorporated herein by reference and
shall have the same force and effect as if set forth in full text. In
all of the attached clauses, "Contractor" and "Offeror" shall mean
SUPPLIER. The clauses are those in effect as of the date of this
Agreement. Gateway is a commercial contractor doing business with the
U.S. Government and will only flow down those mandatory clauses
required of commercial contractors. It is understood that cost and
pricing data will not be required; however, commercial catalogue
pricing or market pricing analysis may be required. In addition,
Gateway will require compliance with the following socio-economic
clauses. These clauses are self-deleting if the work will be performed
outside of the United States by employees who were not recruited within
the United States.
52.222-26 Equal Opportunity.
52.222-36 Affirmative Action for Handicapped Workers.
52.222-35 Affirmative Action for Special Disabled and Vietnam
ERA Veterans.
27.0 GENERAL
A. All rights and remedies, whether conferred hereunder, or by any other
instrument or law will be cumulative and may be exercised singularly or
concurrently. Failure by either party to enforce any term will not be
deemed a waiver of future enforcement of that or any other term. The
terms and conditions stated herein are declared to be severable.
Page 13 of 14
<PAGE>
B. Neither party may assign or delegate any rights hereunder without the
prior written approval of the other party and any attempt to assign any
rights, duties or obligations hereunder without the other party's
written consent will be void.
C. These terms and conditions constitute the entire agreement between the
parties with respect to the subject matter hereof. Those terms and
conditions will prevail notwithstanding any different, conflicting or
additional terms and conditions which may appear on any order submitted
by Gateway or order acknowledgment and/or acceptance issued by
SUPPLIER.
D. It is understood that neither party is constituted an agent, partner,
franchisee, employee or servant of the other for any purpose
whatsoever. Each party shall conduct its business in its own name and
shall be solely responsible for its acts, conduct and expenses and the
acts, conduct and expenses of its employees and agents.
E. Neither party shall publicly announce or disclose the existence of this
Agreement or its terms and conditions or advertise or release any
publicity regarding this Agreement without the prior written consent of
the other party. This provision shall survive termination of this
Agreement. Breach of this provision by SUPPLIER shall be considered a
material breach of this Agreement and Gateway may, in its sole
discretion, terminate this Agreement immediately upon delivery of
notice to Supplier and without penalty to Gateway.
F. SUPPLIER represents, warrants and covenants that it has not in the
past, and will not in the future, offer or give any payments, gifts,
gratuities, or anything of value to any Gateway employee or
representative. Any violation of this provision will entitle Gateway to
recover liquidated damages from SUPPLIER equal to the amount of the
payment or gift and any and all expenses and costs (including
attorneys' fees on an indemnity basis) incurred in enforcing this
provision. The liquidated damages provision contained herein applies
only in the event that SUPPLIER breaches this provision, and Gateway
reserves all remedies available to it by law or in equity in the event
that SUPPLIER breaches any other provision of this Agreement. In the
event that the liquidated damages provision contained herein shall be
invalid, illegal or unenforceable in any respect, Gateway reserves the
right to pursue all remedies available to it by law or in equity.
G. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such
determination shall not affect the validity of the remaining provisions
unless Gateway determines, in its discretion that the court's
determination causes this Agreement to fail in any of its essential
purposes.
H. The headings provided in this Agreement are for convenience only and
shall not be used in interpreting or construing this Agreement.
I. The parties agree that their respective rights, obligations and duties
which by their nature extend beyond the expiration or termination of
this Agreement shall survive any expiration or termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Master Supply
Agreement as of the date and year written above.
GATEWAY, INC. BOSTON ACOUSTICS, INC.
By: /s/ Timothy Kattner By: /s/ Robert L. Spaner
----------------------------------- -------------------------------
Name: Timothy Kattner Name: Robert L. Spaner
--------------------------------- -------------------------
Title: VP Supply Management Title: VP Sales
-------------------------------- ------------------------
Page 14 of 14
<PAGE>
[Gateway logo]
ATTACHMENT A
A.1 Both parties acknowledge that all prices for Product shall be made in U. S.
Dollars. The prices include all fees for import, export, and right to use
licenses. Product purchased for Gateway's Japanese subsidiary will be paid for
in U.S. Dollars.
A.2 SUPPLIER shall provide to Gateway a * Product cost forecast.
A.3 The complete baseline Specifications, drawings and technical release
information for all Product(s) acquired under this Agreement shall be set forth
in this Attachment A and signed by the authorized representatives of both of the
parties. During contract performance, additions, deletions or required changes
to the Specifications, DPPM goals, part number, pricing, transportation and
schedule information shall be formalized by the authorized representatives of
the parties and evidenced by their signatures on the revised documents set forth
in this Attachment A (revision letter and effective date of change indicated on
signature page). No changes to the body of the Master Supply Agreement are
authorized except by a duly authorized representative of Gateway's Law
Department. All changes effected by the authorized representatives below will be
incorporated into Attachment A by an amendment.
Changes to the authorized representatives designated will be effected by formal
amendment to the Agreement. The standard format for the presentation of this
Specification and technical release data shall substantially conform to FCC
requirements. CD ROM or other appropriate media may be used in lieu of a
hard-copy attachment for Specification and technical data.
A.4 GATEWAY'S AUTHORIZED REPRESENTATIVES:
Business Mgr. Or Sr. Business Mgr. (Steve Meaney)
PH: 605.232.2546
FAX: 605.232.1122
Email: [email protected]
610 Gateway Drive
M/S: Y-09
North Sioux City, SD, USA 57049
A.5 SUPPLIER'S AUTHORIZED REPRESENTATIVES:
Michael Chass-Director of Marketing and Sales
PH: 978-538-5120
FAX: 978-538-5088
Email: [email protected]
300 Jubilee Dr.
Peabody, MA 01960
A.6 DPPM by Part Number Information:
<TABLE>
<CAPTION>
SUPPLIER P/N Gateway P/N Item Description DPPM GOAL
<S> <C> <C> <C>
* * *
</TABLE>
A.7 GW P/N Unit Pricing: GW Global price w/Gateway responsible for
freight charges and BA responsible for Duty.
<TABLE>
<S> <C> <C>
* * *
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
UNIT PRICING BY QUARTER INSURANCE $ PER UNIT
-----------------------------------------------------
Boston Acoustics has
a *
insurance policy
that covers this
section
<S> <C>
Q1 - 1999 Same as section A.7
Q2 - 1999 Same as section A.7
Q3 - 1999 Same as section A.7
Q4 - 1999 Same as section A.7
</TABLE>
FREIGHT COSTS: GATEWAY IS RESPONSIBLE FOR ALL FREIGHT CHARGES
BASELINE PRODUCT SPECIFICATIONS & PRICING APPROVED BY:
GATEWAY, INC. BOSTON ACOUSTICS, INC.
By: /s/ Timothy Kattner By: /s/ Robert L. Spaner
----------------------------------- -------------------------------
Name: Timothy Kattner Name: Robert L. Spaner
--------------------------------- -------------------------
Title: VP Supply Management Title: VP Sales
-------------------------------- ------------------------
<PAGE>
[Gateway logo]
ATTACHMENT B
GATEWAY, INC.
SUPPLIER ROUTING GUIDE
1. Shipments to Gateway, North Sioux City
1a. Gateway, Inc.
610 Gateway Drive
North Sioux City, SD 57049
Contact: Tim Rhinehart
Tel: 605-232-2852
Fax: 605-232-2265
CPR location for North Sioux City, SD facility is:
Bekins Distribution
105 Gateway Drive
North Sioux City, SD 57049
Contact: Kim Adair
Tel:712-258-5588
Fax: 712-258-6921
1b. Gateway, Inc.
2000 Gateway Boulevard
Hampton, VA 23666-5890
Contact: Tim Rhinehart
Tel: 605-232-2852
Fax: 605-232-2265
CPR location for Hampton, VA facility is:
Givens, Inc.
630 Woodlake Drive
Chesapeake, VA 23320
Debbie Becklund
Tel: 757-420-4718
Fax: 757-523-6584
1c. Gateway, Inc.
5420 West 2100 South
Salt Lake City, Utah 84120
Contact: Saied Nakhai
Tel: 801-412-7339
Fax: 801-412-7304
CPR location for Salt Lake facility is:
Bekins Distribution
5420 West 2100 South
Door 14
Salt Lake City, UT 84120
Contact: Jason Peck
Tel: 800-846-2042 ext. 17260
Fax:201-412-7362 201-412-7362
1d. Gateway 2000, Inc.
9501 Jeronimo
Irvine CA 92618-2018
Contact: Krista Robinson
Phone: 949-454-3210
Fax: 949-454-3201
CPR location for Irvine facility is:
N/A
<PAGE>
[Gateway logo]
2. Gateway 2000 Ireland Ltd.
2a. Gateway Ireland, Ltd.
Clonshaugh Industrial Estate
Dublin 17 Ireland
Contact: Mr. Jim O'Dea
Tel: 011-353-1-797-2000
Fax:011-353-1-787-2036
CPR location for Dublin, Ireland facility is:
Irish Express Cargo
Liseen Hall Industrial Estate
Swords
County Dublin
Eire
Contact: Sorcha Lehane
3. Gateway 2000 Japan
3a. Gateway 2000 Japan
Nippon Express Omori Branch
1-2-20, Heiwajima
Ota-Ku, Tokyo 143 Japan
Contact: Mr. Abe
Tel: 011-81-3-5493-3751
Fax:011-81-3-5493-3760
4. Gateway 2000 Malaysia
4a. Gateway 2000 Malaysia
No. 1 Jalan TTC 32
Taman Technology Cheng
75250 Malacca, Malaysia
Contact: Mrs. Charlotte Leong
Tel: 011-60-6-336-2000
Fax:011-60-6-337-2000/337-5320
5. Gateway New Zealand
5a. Cmr William Pickering Drive & Amstron Road
Albany, Auckland, New Zealand
6. Gateway 2000 Australia
6a. 6-10 Talvera Road
North Ryde
Sydney NSW-2113 Australia
Tel: 011-61-2-9641-2000
Fax: 011-61-2-9641-2550
CPR location for Gateway 2000 Australia
AirRoad Logistics
31 Nyrang St
Lidcombe
Sydney NSW- 2141 Australia
Contact: Peter Thorne
Tel: 011-61-2-9648-5688
- --------------------------------------------------------------------------------
All shipments dispatched FOB to these destinations must be initially coordinated
with the Contact Person in advance of shipment dispatch.
- --------------------------------------------------------------------------------
<PAGE>
[Gateway logo]
ATTACHMENT C
CENTER FOR PRODUCTION REPLENISHMENT PROCEDURE
This procedure supplements the terms and conditions of the Agreement of which it
is a part between Gateway and SUPPLIER for the purchase and sale of Products. In
the event any terms and conditions in this procedure conflict with any terms and
conditions contained in the Agreement, the terms and conditions of this
procedure shall govern. This procedure outlines the manner in which SUPPLIER
shall respond to forecasts and Orders issued by Gateway.
1. On a weekly basis, Gateway shall provide to SUPPLIER a * week
rolling forecast indicating both model numbers and associated quantities of
Product. The forecast shall set forth Gateway's required deliveries of Product
for each week for the first * weeks of the forecast. The balance of
Gateway's requirements may be indicated in monthly quantities.
2. Promptly upon execution of this Agreement and thirty (30) days prior to the
first day of each calendar quarter commencing thereafter, Gateway agrees to
provide to SUPPLIER a blanket purchase order to permit SUPPLIER to respond to
the "pull signals" set forth in Article 5 below. Gateway is responsible for
ensuring that there remains sufficient value on the blanket purchase order to
cover the value of all Product pulled; if the value of the Product so pulled is
greater than the value remaining on the blanket purchase order, SUPPLIER will
withhold shipment and notify Gateway. Gateway may at any time issue additional
blanket purchase orders to increase the quantities of Product that may be pulled
as provided herein consistent with the rolling forecasts provided to SUPPLIER.
3. SUPPLIER shipments shall be delivered to a designated Center for Production
Replenishment ("CPR") as set forth in Attachment B, or directly to a Gateway
manufacturing site as prescribed by Gateway, in quantities consistent with
Gateway's forecast. SUPPLIER, however, will deliver Product in quantities
consistent with SUPPLIER's standard pallet quantities.
4. Transportation of Product will be in accordance with the following:
4.1 If Gateway is responsible for selecting the carriers used to ship
Product from SUPPLIER's shipping point to the CPR, Gateway shall be responsible
for all shipping costs including applicable insurance coverage for the loss or
damage of such Product in an amount equal to the actual cash value of the
Product, less deductible, of any damaged, lost or destroyed Product. Such
insurance shall cover the Product for the entire period from the date of
shipment from the SUPPLIER's point of origin until received by Gateway from the
CPR location or otherwise. Upon any loss or damage of Product while in transit
or while at the CPR, SUPPLIER shall provide all necessary claim documentation to
Gateway and/or its insurance agent in a timely manner, and shall additionally
cooperate in the administration of the claim. Within five (5) business days of
receipt of proceeds from its insurance carrier, Gateway will reimburse SUPPLIER
for the covered loss or damage amount less the deductible. Except as otherwise
expressly agreed, title to Product shall remain with SUPPLIER until pulled from
the CPR. SUPPLIER shall be responsible for all insurance coverage for Product
remaining in the CPR longer than thirty (30) days.
4.2 If SUPPLIER is responsible for selecting the carriers used to ship
Product from SUPPLIER's shipping point to the CPR, Product will be shipped FOB
destination, freight prepaid and charged back to Gateway according to Section 8,
Title and Delivery. Insurance and risk of loss shall be assumed by SUPPLIER.
4.3 In no event will title to Product pass to Gateway prior to receipt
by Gateway at its designated manufacturing facility.
5. On a frequency determined by the rate at which Gateway consumes Product,
Gateway's manufacturing site will transmit a pull signal by facsimile or other
agreed upon means to communicate to the CPR the model numbers (part numbers) and
quantity of Product required. The sole responsibility for transmitting timely
pull signals rests entirely with Gateway. Gateway understands and agrees that
the transmission of a pull signal is authorization for the CPR operator to ship
Product to Gateway and for SUPPLIER to invoice Gateway against the blanket
purchase order for the models and quantities set forth in the transmission.
6. SUPPLIER agrees that there shall be available to Gateway at least *
days of inventory as established by the quantities set forth in Gateway's
then-current forecast, unless other amounts are mutually agreed to in writing.
7. SUPPLIER agrees to expend commercially reasonable efforts to comply with a
request for additional quantities issued by Gateway. SUPPLIER shall have two (2)
working days to acknowledge receipt of said request. If such additional
quantities result in a
<PAGE>
[Gateway logo]
change in SUPPLIER's costs or in the time for performance, an adjustment in
price and time for performance will be made by the parties in writing.
8. Gateway shall have no liability for any Product held by SUPPLIER or the CPR
operator that exceeds the blanket purchase order in anticipation of Gateway's
transmission of a pull signal.
9. If, for any consecutive four (4) week period, Gateway's purchase quantities
are less than the quantities held by SUPPLIER consistent with the forecasts
submitted by Gateway in anticipation of orders, SUPPLIER reserves the right to
direct the quantities represented by the difference to other accounts and shall
have no liability to Gateway for such diverted quantities.
<PAGE>
[Gateway logo]
ATTACHMENT D
YEAR 2000 COMPLIANCE FORM
SUPPLIER represents and warrants that all Products which are supplied to Gateway
by SUPPLIER in the form contemplated by the parties under the terms and
conditions of the Agreement to which this document is attached, are designed and
intended to be used prior to, during, and after the calendar year 2000 A.D.
Accordingly, the following requirements will be part of the Agreement to which
this document is attached, in addition to and not in limitation of all other
representations and warranties between the parties:
1. Except as expressly set forth in paragraph 7 below, SUPPLIER represents and
warrants that the Product will function as specified below, without
interruption, prior to, during, and after the calendar year 2000 A.D.
2. SUPPLIER represents and warrants that the Product shall consistently handle
date information before, during and after January 1, 2000, including but
not limited to accepting date input, providing date output, and performing
calculations on dates or portions of dates, and that the Product will
operate during each such time period without error relating to date data,
specifically including, but not limited to, any error resulting from,
relating to, or the Product of, date data which represents or references
different centuries or more than one century and any errors resulting from
or relating to calculations, processing or sequencing employing date data.
3. SUPPLIER further represents and warrants that, if the Product is to respond
to two-digit date input, it shall do so in a way that resolves any
ambiguity as to century in a disclosed, defined and predetermined manner.
4. SUPPLIER further represents and warrants that the Product will store and
provide output of date information in ways that are unambiguous as to
century.
5. SUPPLIER further represents and warrants that the Product will correctly
determine leap years, being years during which an extra day is added in
February (February 29th). SUPPLIER acknowledges leap years are correctly
determined to occur in all years divisible by 400, and all other years
evenly divisible by 4 except those evenly divisible by 100. For example:
1996 is a leap year since it is divisible by 4; 1900 is not a leap year
since it is divisible by 100 but is not divisible by 400; 2000 is a leap
year since it is divisible by 400.
6. SUPPLIER further represents and warrants that the Product does not use
proprietary table calculations in resolving year 2000 date data values.
7. If any Product covered by the attached Agreement is not yet Year 2000
compliant as set forth above, that Product is specified in the space below.
SUPPLIER agrees that it will achieve compliance by the compliance date set
forth below and represents that it has submitted to Gateway, for its review
and approval, a compliance plan acceptable to Gateway, demonstrating
SUPPLIER's intent and ability to achieve compliance by such date.
8. SUPPLIER agrees to indemnify, hold harmless and defend Gateway from and
against any and all damages, costs and expenses, including reasonable
attorneys' fees, including allocated costs for in-house legal services,
incurred in connection with a claim which, if true, would constitute a
breach of the foregoing representations and warranties.
9. SUPPLIER acknowledges and agrees that the foregoing Year 2000 warranty and
remedy provisions survive in the event that the warranty or maintenance
period for the Product under this agreement terminates or is terminable
prior to January 1, 2000.
SUPPLIER:
By: /s/ Robert L. Spaner
--------------------------------------
Name: Robert L. Spaner
------------------------------------
Title: VP Sales
-----------------------------------
<PAGE>
[Gateway logo]
ATTACHMENT E
TOTAL ADJUSTED COST (TAC) PERFORMANCE DATA
&
SUPPLIER DEBIT/BILL BACK PROCEDURES
Remedial actions necessitated by Epidemic Failures and/or latent Defects for
warranted Product(s) are resource intensive and an expensive proposition for
Gateway, its suppliers and clients. These are real, unplanned, unnecessary and
largely preventable costs that directly affect Gateway's profitability. While
not as readily quantifiable, but even more important to Gateway, are the
customer dissatisfaction consequences and erosion of customer confidence in our
products when Gateway experiences an Epidemic Failure, Product recall or
isolated latent Defect. Gateway's program to address and handle such unwarranted
costs is known as 'Total Adjusted Cost'. Highlights of the program are as
follows:
1. SUPPLIER commits to the DPPM quality goal set forth in Attachment A for
each SUPPLIER Product which is common to all suppliers within the specific
commodity provided. The goals for each of the commodities acquired under
this Agreement are as follows:
2. Field returns caused by latent quality Defects which exceed the DPPM goal
as described above, will generate special 'Bill Back' provisions in which
the SUPPLIER is required to pay Gateway.
3. While the SUPPLIER agrees to warrant the Product itself and to provide
credit at the cost sold on any such Product returned due to quality
Defects, provided such Defects fall within the warranty period, SUPPLIER
also agrees to reimburse Gateway for those related support costs which
include, but are not limited to, the following: transportation and in-house
labor expenses as described in Section 11 of this Agreement. These costs
vary by commodity and are available upon request.
4. Each calendar quarter, related support costs associated with latent Defects
which exceed the DPPM goal will be billed to the SUPPLIER or debited and
deducted from any outstanding invoices.
5. Supporting evidence for all Defects will be provided to SUPPLIER upon
request.
6. DPPM goals may change from time to time due to newly introduced product and
continuous improvement objectives. Changes to DPPM goals will be and will
be mutually agreed to by the parties.
7. Performance within the stated DPPM goal will be looked upon favorably by
Gateway. No monies or credit, however, will be provided by Gateway to
SUPPLIER whose performance falls within their respective quality goal.
<PAGE>
[Gateway logo]
ATTACHMENT F
INTERNATIONAL TRADE INFORMATION FORM
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
XVI. SUPPLIER SECTION
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
1. Product (Hardware/Software): Hardware 2. Model/ Version: Digital BA735
- -----------------------------------------------------------------------------------------------------------------------------------
3. Gateway Part #(S): 7001332, 7001343, 7001344, 7001341, 7001342
- -----------------------------------------------------------------------------------------------------------------------------------
4. Product Description: Digital 3 piece powered speaker system with subwoofer
- -----------------------------------------------------------------------------------------------------------------------------------
5. Manufacturer/Supplier Name and Address: *
- -----------------------------------------------------------------------------------------------------------------------------------
PRIMARY TRADE INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
6. What is the country(ies) of origin? *
[List all countries of origin if product
will be sourced from or manufactured
in multiple locations]
- -----------------------------------------------------------------------------------------------------------------------------------
7. If country of origin is United States, Mexico, or Canada, is the item
NAFTA qualified? (Yes or No)
[If yes, attach NAFTA certificate of origin]
- -----------------------------------------------------------------------------------------------------------------------------------
8. HTS #: 8518.22.0000 9. ECCN # : EAR99
[Include paragraph
if possible]
- -----------------------------------------------------------------------------------------------------------------------------------
HARDWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
10. Processor Type N/A 10A. Processor CTP N/A
& Speed: Rating in MTOPS:
- -----------------------------------------------------------------------------------------------------------------------------------
11. Supplier FCC ID # and N/A 12. Supplier FDA N/A
Grantee's Address: Accession # and
[If Applicable] Grantee's Address:
[Laser printer, CRT
monitor, CD ROM drives]
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
13. Does software qualify for Mass Market Treatment? (Yes or No) N/A
- -----------------------------------------------------------------------------------------------------------------------------------
14. Does software contain encryption? (Yes or No) N/A [If yes continue to N/A
question 15; if no skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
15. What is the length (DES) of the encryption? (40-bit, 56-bit, 128-bit, etc.) N/A
[If 56-bit or less continue to question 16; if not skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
16. If 56-bit or less, has software been reviewed and approved by the U.S. Department of Commerce? N/A
- -----------------------------------------------------------------------------------------------------------------------------------
SUPPLIER SOURCE OF INFORMATION AND APPROVAL
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
[Gateway logo]
- -----------------------------------------------------------------------------------------------------------------------------------
Completed By: Carla Boylan Phone # : 605-232-5160
- -----------------------------------------------------------------------------------------------------------------------------------
XVII. SUPPLIER SECTION
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
1. Product (Hardware/Software): Hardware 2. Model/ Version: Digital Media Theater
- -----------------------------------------------------------------------------------------------------------------------------------
3. Gateway Part #(s): 7000787, 7001364, 7001367, 7001368, 7001123, 7001366
- -----------------------------------------------------------------------------------------------------------------------------------
4. Product Description: Digital 3 piece powered speaker system with subwoofer and Dolby Digital
- -----------------------------------------------------------------------------------------------------------------------------------
5. Manufacturer/Supplier Name and Address: *
- -----------------------------------------------------------------------------------------------------------------------------------
PRIMARY TRADE INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
6. What is the country(ies) of origin? *
[List all countries of origin if product
will be sourced from or manufactured in
multiple locations]
- -----------------------------------------------------------------------------------------------------------------------------------
7. If country of origin is United States, Mexico, or Canada, is the item
NAFTA qualified? (yes or no) [If yes, attach NAFTA certificate of origin]
- -----------------------------------------------------------------------------------------------------------------------------------
8. HTS #: 8518.22.0000 9. ECCN # : EAR99
[Include paragraph
if possible]
- -----------------------------------------------------------------------------------------------------------------------------------
HARDWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
10. Processor Type N/A 10A. Processor CTP Rating in MTOPS: N/A
& Speed:
- -----------------------------------------------------------------------------------------------------------------------------------
11. Supplier FCC ID # and Grantee's Address: [If Applicable] N/A 12. Supplier FDA Accession # N/A
and Grantee's Address:
[Laser printer, CRT monitor,
CD ROM drives]
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
13. Does software qualify for Mass Market Treatment? (Yes or No) N/A
- -----------------------------------------------------------------------------------------------------------------------------------
14. Does software contain encryption? (Yes or No) N/A
[If yes continue to question 15; if no skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
15. What is the length (DES) of the encryption? (40-bit, 56-bit, 128-bit, etc.) N/A
[If 56-bit or less continue to question 16; if not skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
16. If 56-bit or less, has software been reviewed and approved by the U.S. Department of Commerce? N/A
- -----------------------------------------------------------------------------------------------------------------------------------
SUPPLIER SOURCE OF INFORMATION AND APPROVAL
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
[Gateway logo]
- -----------------------------------------------------------------------------------------------------------------------------------
Completed By: Carla Boylan Phone # : 978-538-5160
- -----------------------------------------------------------------------------------------------------------------------------------
XVIII. SUPPLIER SECTION
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
1. Product (Hardware/Software): Hardware 2. Model/ Version: Digital Media Theater Surround
- -----------------------------------------------------------------------------------------------------------------------------------
3. Gateway Part #(s): 7001016
- -----------------------------------------------------------------------------------------------------------------------------------
4. Product Description: 2 piece passive surround speaker upgrade for Digital Media Theater
- -----------------------------------------------------------------------------------------------------------------------------------
5. Manufacturer/Supplier Name and Address: *
- -----------------------------------------------------------------------------------------------------------------------------------
PRIMARY TRADE INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
6. What is the country(ies) of origin? *
[List all countries of origin if product
will be sourced from or manufactured
in multiple locations]
- -----------------------------------------------------------------------------------------------------------------------------------
7. If country of origin is United States, Mexico, or Canada, is the item
NAFTA qualified? (yes or no) [If yes, attach NAFTA certificate of origin]
- -----------------------------------------------------------------------------------------------------------------------------------
8. HTS #: 8518.22.0000 9. ECCN # : EAR99
[Include paragraph
if possible]
- -----------------------------------------------------------------------------------------------------------------------------------
HARDWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
10. Processor Type N/A 10A. Processor CTP Rating in MTOPS N/A
& Speed:
- -----------------------------------------------------------------------------------------------------------------------------------
11. Supplier FCC ID # and Grantee's N/A 12. Supplier FDA Accession N/A
Address: [If Applicable] # and Grantee's Address:
[Laser printer, CRT
monitor, CD ROM drives]
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
13. Does software qualify for Mass Market Treatment? (Yes or No) N/A
- -----------------------------------------------------------------------------------------------------------------------------------
14. Does software contain encryption? (Yes or No) N/A [If yes continue to
question 15; if no skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
15. What is the length (DES) of the encryption? (40-bit, 56-bit, 128-bit, etc.) N/A
[If 56-bit or less continue to question 16; if not skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
16. If 56-bit or less, has software been reviewed and approved by the U.S. Department of Commerce? N/A
- -----------------------------------------------------------------------------------------------------------------------------------
SUPPLIER SOURCE OF INFORMATION AND APPROVAL
- -----------------------------------------------------------------------------------------------------------------------------------
Completed By: Carla Boylan Phone # : 978-538-5160
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
[Gateway logo]
- -----------------------------------------------------------------------------------------------------------------------------------
XIX. SUPPLIER SECTION
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
1. Product (Hardware/Software): Hardware 2. Model/ Version: BA635 Black
- -----------------------------------------------------------------------------------------------------------------------------------
3. Gateway Part #(s): 7001000
- -----------------------------------------------------------------------------------------------------------------------------------
4. Product Description: 3 piece powered speaker system with subwoofer
- -----------------------------------------------------------------------------------------------------------------------------------
5. Manufacturer/Supplier Name and Address: *
- -----------------------------------------------------------------------------------------------------------------------------------
PRIMARY TRADE INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
6. What is the country(ies) of origin? *
[List all countries of origin if product
will be sourced from or manufactured
in multiple locations]
- -----------------------------------------------------------------------------------------------------------------------------------
7. If country of origin is United States, Mexico, or Canada, is the item
NAFTA qualified? (yes or no) [If yes, attach NAFTA certificate of origin]
- -----------------------------------------------------------------------------------------------------------------------------------
8. HTS #: 8518.22.0000 9. ECCN # : EAR99
[Include paragraph
if possible]
- -----------------------------------------------------------------------------------------------------------------------------------
HARDWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
10. Processor Type N/A 10A. Processor CTP Rating in MTOPS: N/A
& Speed:
- -----------------------------------------------------------------------------------------------------------------------------------
11. Supplier FCC ID # and N/A 12. Supplier FDA Accession # N/A
Grantee's Address: and Grantee's Address:
[If Applicable] [Laser printer, CRT monitor, CD ROM
drives]
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
13. Does software qualify for Mass Market Treatment? (Yes or No) N/A
- -----------------------------------------------------------------------------------------------------------------------------------
14. Does software contain encryption? (Yes or No) N/A
[If yes continue to question 15; if no skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
15. What is the length (DES) of the encryption? (40-bit, 56-bit, 128-bit, etc.) N/A
[If 56-bit or less continue to question 16; if not skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
16. If 56-bit or less, has software been reviewed and approved by the U.S. Department of Commerce? N/A
- -----------------------------------------------------------------------------------------------------------------------------------
SUPPLIER SOURCE OF INFORMATION AND APPROVAL
- -----------------------------------------------------------------------------------------------------------------------------------
Completed By: Carla Boylan Phone # : 978-538-5160
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
[Gateway logo]
- -----------------------------------------------------------------------------------------------------------------------------------
XX. SUPPLIER SECTION
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
1. Product (Hardware/Software): Hardware 2. Model/ Version: DT6000
- -----------------------------------------------------------------------------------------------------------------------------------
3. Gateway Part #(s): 7000858, 7001472
- -----------------------------------------------------------------------------------------------------------------------------------
4. Product Description: 6 speaker powered home theater system with Dolby Digital
- -----------------------------------------------------------------------------------------------------------------------------------
5. Manufacturer/Supplier Name and Address: *
- -----------------------------------------------------------------------------------------------------------------------------------
PRIMARY TRADE INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
6. What is the country(ies) of origin? *
[List all countries of origin if product
will be sourced from or manufactured in
multiple locations]
- -----------------------------------------------------------------------------------------------------------------------------------
7. If country of origin is United States, Mexico, or Canada, is the item
NAFTA qualified? (yes or no) [If yes, attach NAFTA certificate of origin]
- -----------------------------------------------------------------------------------------------------------------------------------
8. HTS #: 8518.22.0000 9. ECCN # : EAR99
[Include paragraph
if possible]
- -----------------------------------------------------------------------------------------------------------------------------------
HARDWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
10. Processor Type N/A 10A. Processor CTP Rating in MTOPS: N/A
& Speed:
- -----------------------------------------------------------------------------------------------------------------------------------
11. Supplier FCC ID # and N/A: 12. Supplier FDA Accession # and Grantee's Address
Grantee's Address: [If Applicable] [Laser printer, CRT monitor, CD ROM drives]
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE PRODUCT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
13. Does software qualify for Mass Market Treatment? (Yes or No) N/A
- -----------------------------------------------------------------------------------------------------------------------------------
14. Does software contain encryption? (Yes or No) N/A
[If yes continue to question 15; if no skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
15. What is the length (DES) of the encryption? (40-bit, 56-bit, 128-bit, etc.) N/A
[If 56-bit or less continue to question 16; if not skip to Supplier Sign Off]
- -----------------------------------------------------------------------------------------------------------------------------------
16. If 56-bit or less, has software been reviewed and approved by the U.S. Department of Commerce? N/A
- -----------------------------------------------------------------------------------------------------------------------------------
SUPPLIER SOURCE OF INFORMATION AND APPROVAL
- -----------------------------------------------------------------------------------------------------------------------------------
Completed By: Carla Boylan Phone # : 978-538-5160
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
[Gateway logo]
SUPPLIER SECTION DEFINITIONS
BOX # 4 - PRODUCT DESCRIPTION: This box should include a general description of
the item.
BOX # 6 - COUNTRY OF ORIGIN: Place where the article was manufactured (not the
place where the shipment originated). If the article has been processed in more
than one country, the country of origin is the last country in which the article
underwent a "substantial transformation." In other words, further work or
material added to an article in another country must effect a "substantial
transformation" in order to render such other country as the country of origin.
A substantial transformation occurs when articles lose their identity and become
new and different articles of commerce, having a new name, character or use.
BOX # 8 - HTS (HARMONIZED TARIFF SCHEDULE) NUMBER: A 10 digit classification
that is used by the various Customs services to classify product for
import/export on a worldwide basis. Should you require assistance in determining
the classification for your product, you may access U.S. Custom's web site at
WWW.CUSTOMS.UNTREAS.GOV, OR CONTACT YOUR LOCAL CUSTOMS OFFICE OR BROKER.
BOX # 9 - EXPORT CONTROL CLASSIFICATION NUMBER ("ECCN"): A 5 digit
classification used to identify applicable export licensing requirements. NOTE:
ECCN is not the same as a HTS classification or a Schedule B classification.
Within each ECCN a given item will defined under a particular paragraph or
subparagraph. For a complete description of each ECCN's composition, see Section
738.2(c) of the Export Administration Regulations (15 CFR Part 738). Should you
require assistance in determining the classification for your product, you may
contact the Bureau of Export Administration's Export Counseling Division at
(202) 482-4811 or (202) 482-3617, or at "http://www.bxa.doc.gov".
BOX #S 10 & 10A - PROCESSOR TYPE, SPEED AND CTP RATING IN MTOPS: For purposes of
this field, "processor" means a monolithic integrated circuit or multi-chip
integrated circuit containing an arithmetic logic unit (ALU) capable of
executing a series of general purpose instructions from an external storage. It
normally does not contain integral user-accessible storage, although storage
present on-the-chip may be used in performing its logic function. The definition
includes chip sets that are designed to operate together to provide the function
of a processor.
BOX # 11 - U.S. FEDERAL COMMUNICATION COMMISSION ("FCC") ID NUMBER: The
manufacturer (or importer for an imported device) is required to ensure that the
measurements necessary to determine compliance with the technical standards are
performed. A copy of the measurement report showing compliance with FCC
standards must be retained by the manufacturer and, if requested, be submitted
to the Commission. U.S. importers are required to submit an FCC form with their
import shipments.
BOX # 12 - U.S. FOOD AND DRUG ADMINISTRATION ("FDA")/ACCESSION NUMBER: Section
536(a) of the Electronic Product Radiation Control provisions of the Federal
Food, Drug, and Cosmetic Act (the Radiation Control for Health and Safety Act of
1968) requires that all imported electronic products, for which applicable
radiation performance standards exist, shall comply with the standards and shall
bear certification of such compliance. U.S. importers are required to submit an
FDA form with their import shipments.
BOX # 13 - "MASS MARKET" TREATMENT: This treatment is available for software
that is generally available to the public by being: 1) sold from stock at retail
selling points, without restriction, by means of over the counter transactions,
mail order transactions, telephone call transactions, or internet transactions;
and 2) designed for installation by the user without further substantial support
by the supplier (See 15 CFR Section 740.13). NOTE: "Mass market" treatment is
not available for encryption software unless the length of the encryption string
is 56 bits or less and the software has undergone a one time review by the U.S.
Department of Commerce (See 15 CFR Sections 742.15(b)(1), Supplement No. 6 to
Part 742 and 748.3(b)(3)).
BOX # 14 - ENCRYPTION SOFTWARE: Computer programs that provide capability of
encryption/decryption functions or confidentiality of information or information
systems. Such software includes source code, object code, applications software,
or operating system software.
BOX # 16 - ONE TIME REVIEW BY THE U.S. DEPARTMENT OF COMMERCE: Refer to 15 CFR
Section 742.15 and Supplement No. 6 to Part 742.
<PAGE>
[Gateway logo]
PURPOSE AND RELIANCE
PURPOSE OF FORM: The products which Gateway may elect to purchase/license could
be the subject of an import and/or export transaction. Certain information is
required in order for Gateway to be able to conduct such transactions in the
most efficient/cost effective manner possible and in full compliance with all
applicable laws and regulations.
RELIANCE: Gateway will be relying on the accuracy of the completed form.
Therefore, any temporary or permanent changes in the information provided must
be immediately communicated in writing to the appropriate Gateway contact.
<PAGE>
[Gateway logo]
ATTACHMENT G
STATEMENT OF WORK
1.0 Scope
1.1 Scope: This "statement of work" (SOW) provides details for conduct
of business for US returned products. It provides for
establishment of uniform inspecting, testing and results
reporting. It further defines the minimal functional performance
of Products returned to Gateway - Client Hardware Support (CHS).
1.2 Applicability: This SOW applies to Products returned to Gateway -
CHS that is thought to be faulty by Gateway - CHS Client Care or
unsuitable by the client. It defines the process for return of
Products to the SUPPLIER and subsequent return of Products to
Gateway - CHS.
1.3 Significance: This SOW shall, upon agreement, become an amendment
to open purchase orders for purchase of Products.
2.0 Purpose
2.1 Purpose: This SOW establishes guidelines and defines
responsibilities for each party involved in the receipt and
disposition of Products returned to Gateway - CHS by Gateway
clients.
3.0 Gateway - CHS Responsibilities.
3.1 Gateway - CHS advances replacement Products to clients, and
receives Products returned from clients.
3.2 Gateway - CHS returns Products to SUPPLIER's designated returns
processing center via a Return Merchandise Authorization (RMA)
process as defined in work instruction 40340301. Upon shipment of
Products to the designated returns processing center Gateway - CHS
completes a DEBIT transaction. All reworked Products will be
returned in new packaging from the designated returns processing
center to Gateway - CHS.
3.2.1 Gateway - CHS shall issue procurement for returned
Products.
3.3 Gateway - CHS prepares returned Products for shipment to the
designated returns processing center and readies Products for pick
up, per joint agreed upon schedule, which can be as often as
daily.
3.4 Gateway - CHS provides all available documentation concerning
failure descriptions and client complaints for returned Products.
(These documents are commonly referred to as "travelers".)
Products returned with systems may not have specific failure
definitions.
3.5 Gateway - CHS has the right to approve SUPPLIER's process, test
equipment list and tests for returned Products, and to observe the
process at any time.
3.6 Upon notifying the SUPPLIER and the SUPPLIER's designated returns
processing center, Gateway - CHS has the right to perform audits
of completed Products, and to reject lots of Products on the basis
of unsatisfactory audit findings. Rejected lots will be reworked
until lot passes audit and Product is returned to Gateway - CHS.
3.7 Gateway - CHS reserves the right to approve use of any designated
returns processing center selected by the SUPPLIER for the
performance of the work defined in this SOW.
3.8 Upon completion of inspection and test activities by the designated
returns processing center, Gateway - CHS will receive Products
delivered by the SUPPLIER or designated returns processing center. Upon
acceptance of Product and receipt of invoice, Gateway shall REVERSE the
DEBIT to the SUPPLIER.
3.9 Gateway - CHS agrees to re-purchase all Products sent to
SUPPLIER's returns processing center after the Products have been
properly inspected and reworked (to conformance) in accordance
with this SOW and approved documented work instructions. The
Gateway - CHS repurchase price equals the original accepted price.
3.10 Gateway agrees to credit Boston Acoustics for Product deemed
"functionally good" but cosmetically bad (customer damaged or
abused or fails COSMETIC CRITERA from Appendix I) Product.
4.0 Supplier (Boston Acoustics) Responsibilities.
4.1 SUPPLIER must designate a returns processing center to perform the
work detailed in this SOW. SUPPLIER is responsible for management
of the designated returns processing center and for the results
achieved by it.
4.2 SUPPLIER picks up and receives Products per joint agreed upon
schedule, which can be as often as daily from Gateway - CHS.
4.3 SUPPLIER tests and determines suitability of Products in
accordance with performance and cosmetic criteria as defined by
Gateway approved written inspection, test and process
instructions.
4.4 SUPPLIER provides test, inspection, and process instructions
(including a list of test equipment) used in the process and
diligently follows the approved process. No changes are made to
any Gateway approved process without prior written approval from
Gateway.
<PAGE>
4.5 SUPPLIER maintains inspection and audit processes that ensure all
approved documented processes are followed and all "conforming"
end Products meet Gateway - CHS requirements.
4.6 The designated returns processing center returns (conforming)
Products to Gateway that meet the performance and cosmetic
criteria. (Cosmetic & Performance criteria are defined in Appendix
1).
4.7 Conforming Products are packed in new packaging, complete and
ready for shipment to clients.
4.8 Products returned to Gateway - CHS meet the criteria for
serviceably used Products. SUPPLIER understands that Products are
used as replacement parts, or are sold as remanufactured products.
Returned Products are expected to be functionally
indistinguishable from new.
4.9 SUPPLIER is responsible for disposition of non-conforming Products
that do not meet criteria for return to Gateway - CHS.
4.10 SUPPLIER picks up and delivers Products between Gateway - CHS and
the designated returns processing center per a jointly agreed upon
schedule, which can be as often as daily. SUPPLIER and the
designated returns processing center maintain work schedules that
support Gateway's CHS demand for Products in accordance with
Gateway's Standard Terms and Conditions. The designated returns
processing center shall return all conforming Products to Gateway
- CHS, and SUPPLIER shall remit a complementary invoice to enable
Gateway to REVERSE the DEBIT.
4.11 SUPPLIER provides all repair parts required to perform this work.
(The designated returns processing center salvages parts from
defective Products to the extent practical.)
5.0 Data Collection and Distribution.
5.1 The designated returns processing center collects test and
inspection results in an electronic database. This data is shared
with Gateway (in Microsoft Excel format) via e-mail.
5.1.1 The information is promptly entered upon completion of
inspection/test. Data must be entered on the day that
the inspection/test is performed. The designated returns
processing center notifies Gateway - CHS of any case
where a situation arises that prevents meeting this
goal.
5.2 The Required information and defect codes are defined in appendix
2 of this SOW.
5.3 All costs associated in the above "Supplier Responsibilities"
(section 4.0) through "Data Collection and Distribution" (section
5.2), are incurred by SUPPLIER.
<PAGE>
[Gateway logo]
APPENDIX 1
MINIMUM COSMETIC / PERFORMANCE TEST CRITERIA
1.0 Cosmetic Criteria
1.1 External Surfaces:
1.1.1 A class A surface is defined as any surface of the
Product that can be viewed while the system face is
toward the inspector (top, front, and sides).
1.1.2 A class B surface is defined as any surface on the
back of the Product.
1.1.3 A class C surface is defined as any surface on the
underside of the Product.
1.2 Surface Defects
1.2.1 A DEFECT is defined as any condition of a Product
that is different from the Product's original surface
Specifications. (i.e.: scratches, scuffs and flaws.)
(A gouge would be considered a damaged surface.)
1.2.2 A MAJOR DEFECT is defined as any surface of a Product
that has one or more defects that renders the part
inoperative or consumes the majority of the surface
from the standard viewing distance of 24 inches (or
arm's length).
1.2.3 A MINOR DEFECT is defined as any surface of a Product
that has one or more defects, and is noticeable in
normal light from the standard viewing distance of 24
inches (or arm's length).
NOTE: All inspection should be done in normal
lighting conditions. Lighting should be bright
enough for easy and efficient viewing and directed so
that it does not create glare. Inspection viewing
time should not exceed 5 seconds per surface. The
standard viewing distance is 24 inches (or arm's
length) if no distance is specified.
1.3 Inspection Details
1.3.1 Remove any contamination (dust, oils, or other
contaminants) from Product surfaces that can be
removed with the use of proper cleaning solutions,
unless specified otherwise in this work instruction.
1.3.2 Touch paint (functionally good) Product surfaces with
minor cosmetic defects (scuffs and/or scratches)
whenever restoration to an acceptable level of
quality is possible with a reasonable amount of
time/effort.
1.3.3 Report Products with contaminated surfaces that
cannot be removed with the use of proper cleaning
solutions.
1.3.4 Report Products with any surface that is cracked or
damaged beyond repair.
1.3.5 Report Products containing a minor defect on any A
surface that cannot be repaired with a reasonable
amount of time/effort. (Very minor scuffs may be
allowable, and need not be reported, on the sides of
units providing there is no discoloration.)
1.3.6 Report Products containing a major defect on any A,
B, or C surface.
1.3.7 Return Products containing a minor defect on any B or
C surface that can be repaired with a reasonable
amount of time/effort (such as touch paint) to
Gateway - CHS.
1.3.8 Bring questionable Product surfaces to the attention
of the immediate supervisor.
1.3.9 Report Products that have missing or unreadable
printing on the A or B surfaces.
1.4 Cables
1.4.1 Replace and report all cables that are cracked,
damaged or distorted beyond repair.
1.4.2 Remove contamination (dust, oils, or other
contaminants) that can be removed from surfaces with
the use of proper cleaning solutions, unless
specified otherwise in this work instruction.
1.4.3 Report any cable with contaminated surfaces that
cannot be removed with the use of proper cleaning
solutions.
2.0 Performance Test Criterion
2.1 All Products tested by SUPPLIER designated returns processing
center perform to the original Product Specification as
published in manual sent with Products.
<PAGE>
[Gateway logo]
APPENDIX 2
DATA REQUIREMENTS AND DEFECT CODES
Field types in the database are either numerical or textual. No superfluous
letters or numbers should be included in any field. As a minimum, the following
information shall be gathered and reported:
QUANTITY of Products processed by DATE and by GATEWAY PART NUMBER;
DEFECT DETAIL includes:
PROCESS DATE (Date products are processed.) (Numerical Date format:
M/D/YYYY.)
GATEWAY ORDER NUMBER (Located on Gateway - CHS traveler. Leave this
field blank for units with no traveler.) (Textual format.)
GATEWAY PART NUMBER (Located on Gateway - CHS traveler. Units without
travelers are identified and have the correct Gateway Part Number
assigned.) (Textual format.)
GATEWAY DEFECT CODE (Input) (Located on Gateway - CHS traveler.)
(Textual format.)
GATEWAY DEFECT COMMENT (Input) (Located on Gateway - CHS traveler.)
(Textual format.)
GATEWAY DEFECT CODE - PREFIX (Output) (From Table below.) (Textual
format.)
BOSTON ACOUSTICS SERIAL NUMBER (Enter "NA" into this text field if the
unit has no serial number.)
BOSTON ACOUSTICS DEFECT CODE - SUFFIX (Output) (From Table below.)
(Textual format.)
BOSTON ACOUSTICS DEFECT COMMENT (Textual format.)
NOTE: Multiple Defect Codes are allowed for each unit.
<PAGE>
[Gateway logo]
APPENDIX 2
DATA REQUIREMENTS AND DEFECT CODES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
DEFECT CODE Gateway - CHS Defect Code Boston Acoustics
PREFIX Description SUFFIX Description
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
FUN001 NPF (No Problem Found)
- -------------------------------------------------------------------------------------------------------------------------------
FUN002 DOA (Dead On Arrival)
- -------------------------------------------------------------------------------------------------------------------------------
FUN004 Noisy
- -------------------------------------------------------------------------------------------------------------------------------
FUN005 Not Recognized
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
FUN016 A port or jack does not connect or just doesn't work PWR Defective Jack - Power
- -------------------------------------------------------------------------------------------------------------------------------
FUN016 A port or jack does not connect or just doesn't work SPK Defective Jack - Speaker
- -------------------------------------------------------------------------------------------------------------------------------
FUN016 A port or jack does not connect or just doesn't work INP Defective Jack - Input
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
FUN018 No Power XFR Defective Transformer
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems ELF Defective Electronics - Left
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems ERT Defective Electronics - Right
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems SLF Defective Satellite - Left
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems SRT Defective Satellite - Right
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems WFR No sound from |Subwoofer
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems SAT No sound from Satellites
- -------------------------------------------------------------------------------------------------------------------------------
9300-001 Audio Problems NCS No Chase Sequence
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
9300-002 Cord/Cable defective INP Defective cord/cable - Input
- -------------------------------------------------------------------------------------------------------------------------------
9300-002 Cord/Cable defective SPK Defective cord/cable - Speaker
- -------------------------------------------------------------------------------------------------------------------------------
9300-002 Cord/Cable defective OTH Defective cord/cable - Other
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
WKS00 No Cosmetic Defect Found
- -------------------------------------------------------------------------------------------------------------------------------
WKS06 Missing Parts
- -------------------------------------------------------------------------------------------------------------------------------
WKS07 Damaged Parts or Systems
- -------------------------------------------------------------------------------------------------------------------------------
WKS08 Contamination on Parts or Systems other than Blood
- -------------------------------------------------------------------------------------------------------------------------------
WKS09 Defective LED
- -------------------------------------------------------------------------------------------------------------------------------
WKS10 Defective Pins or Sockets
- -------------------------------------------------------------------------------------------------------------------------------
WKS12 Supplier Caused Cosmetic Defect
- -------------------------------------------------------------------------------------------------------------------------------
WKS13 Foreign Object/ Loose Part
- -------------------------------------------------------------------------------------------------------------------------------
WKS14 Defective Screws or Screw Holes
- -------------------------------------------------------------------------------------------------------------------------------
WKS16 Improper Packaging
- -------------------------------------------------------------------------------------------------------------------------------
WKS17 Switch Malfunctions VOL Defective Volume Control
- -------------------------------------------------------------------------------------------------------------------------------
WKS19 Blood Contaminated Part
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
[Gateway logo]
ATTACHMENT H
TRADEMARKS
<PAGE>
<TABLE>
<CAPTION>
CASE ID SERIAL NO. TRADEMARK NAME TM REG.
- ----------------------------------------------------------------------------------
<S> <C> <C> <C>
B06302000 253265 BOSTON (U.S.) 1369831
B06302000CA 639076 BOSTON (CANADA) 390115
B06302000IN BOSTON (INDIA)
B06302000JP 70516/1980 BOSTON (JAPAN)
B06302000MX 2515 BOSTON (MEXICO) 319128
B06302000SG S/I782/92 BOSTON (SINGAPORE)
B06302000TH 209709 BOSTON (THAILAND) 150949
B0630200I 73/741756 ACCURA 1622123
B06302002 73/253266 BOSTON ACOUSTICS 1174921
B06302002AR 1825893 BOSTON ACOUSTICS (ARGENTINA) 1476800
B06302002AU 513130 BOSTON ACOUSTICS (AUSTRALIA) B513130
B06302002BR 816.534.284 BOSTON ACOUSTICS AND DESIGN B816534284
B06302002BX 777402 BOSTON ACOUSTICS (BENELUX) 510688
B06302002CA 483574 BOSTON ACOUSTICS AND DESIGN (C 284956
B06302002CN BOSTON ACOUSTICS
B06302002CO 99.036.821 BOSTON ACOUSTICS (COLUMBIA)
B06302002CR 94058 BOSTON ACOUSTICS (COSTA RICA) 94058
B06302002DE 39514858.8 BOSTON ACOUSTICS (WEST GERMANY) 39514858.8
B06302002EC 53983 BOSTON ACOUSTICS (ECUADOR) 315-96
B06302002EM 273755 BOSTON ACOUSTICS (EUROPE) 273755
B06302002ES 979274 BOSTON ACOUSTICS (SPAIN)(MDJ/ 979274
B06302002GB 139I292 BOSTON ACOUSTICS (LOGO)(UNITE
B06302002GT 001168 BOSTON ACOUSTICS (GUATEMALA)
B06302002HK 6277/89 BOSTON ACOUSTICS (HONG KONG) B4504/93
B06302002ID 270605 BOSTON ACOUSTICS (INDONESIA) 270605
B06302002IL 72779 BOSTON ACOUSTICS (ISRAEL) 1291939
B06302002IN 697104 BOSTON ACOUSTICS (INDIA)
B06302002IT 40496-C/81 BOSTON ACOUSTICS (ITALY) 396863
B06302002JP 70517/1980 BOSTON ACOUSTICS (JAPAN) 1601258
B06302002KE 42408 BOSTON ACOUSTICS (KENYA) 42408
B06302002KR 89-15439 BOSTON ACOUSTICS (SOUTH KOREA) 207221
B06302002LK 73867 BOSTON ACOUSTICS (SRI LANKA)
B06302002MX 2514 BOSTON ACOUSTICS (MEXICO) 323800
B06302002NZ B194005 BOSTON ACOUSTICS (NEW ZEALAND) B194005
B06302002PA 075980 BOSTON ACOUSTICS (PANAMA) 75980
B06302002PH 70103 BOSTON ACOUSTICS (PHILIPPINES) 53907
B06302002PY 1394/95 BOSTON ACOUSTICS (PARAGUAY) 209709
B06302002SE BOSTON ACOUSTICS (SWEDEN)
B06302002SG S/5084/89 BOSTON ACOUSTICS (SINGAPORE)
B06302002TH 194676 BOSTON ACOUSTICS (THAILAND) 139040
B06302002TW 78010202 BOSTON ACOUSTICS (TAIWAN)
B06302002VE 24.687-91 BOSTON ACOUSTICS (VENEZU
B06302003 73/515012 MAGNAGUARD 1421748
B06302004 73/787806 POWER VENT (BLOCK LETTERS) 1568123
B06302005CA 457880 BOSTON ACOUSTICS (BLOCK)(CANAD 275639
B06302006 399097 BOSTON ACOUSTICS 1291939
B06302007 552192 VARIMOUNT 1404689
<PAGE>
B0632008GB 1464851 BOSTON ACOUSTICS (GREAT BRITAI
B0632009 74/178581 VOYAGER 1769162
B0632009GB 1515198 VOYAGER (GREAT BRITAIN) 1769162
B06302010 74/277293 PROSERIES DESIGN 1846528
B06302010BX 829773 PROSERIES (BENELUX) 552890
B06302010CA 781654 PROSERIES (DESIGN)(CANADA) 468478
B06302010DE B102504/9WZ PROSERIES (GERMANY) 2904004
B06302010EM 273763 PROSERIES (DESIGN)(ECT)
B06302010FR 94/528268 PROSERIES (FRANCE)
B06302010GB 2000724 PROSERIES (MARK)(GREAT BRITA B1515199
B06302010IT MI95C002504 PROSERIES (ITALY) 00724661
B06302011 74/286567 RUNABOUT 1846145
B06302012TW 82-2463 BOSTON ACOUSTICS (TAIWAN) 631443
B06302013 74/376269 RALLY
B06302013ID 326536 RALLY (INDONESIA) 326536
B06302013SG S/6463/93 RALLY (SINGAPORE) S/6463/93
B06302013TH 268866 RALLY (THAILAND)
B06302013TW 82-42411 RALLY (TAIWAN)
B06302014 74/392851 TEMPO 1889180
B06302014ID 327279 TEMPO (INDONESIA) 327279
B06302014SG S/6462/93 TEMPO (SINGAPORE) S/6462/93
B06302014TH 254827 TEMPO (THAILAND) TM17928
B06302014TW 82-42410 TEMPO (TAIWAN)
B06302015 74/570161 VR 1948354
B06302015TW 82-36771 VR (TAIWAN)
B06302016 74/542644 CX
B06302017GB 200724 PRO SERIES (DESIGN)(GREAT BRI
B06302018CN APOLLO (CHINA)
B06302019DE 39549905 PROSERIES (WORLD MARK)(GERMANY 39549905
B06302020 MULTIMEDIA (ITU)
B0632021 75/146065 MICROMEDIA 2138324
B0632022 75/202387 SOUNDBAR 2188381
B06302023 75/211007 DCD
B06302024 VIRTUAL THEATER
B06302025 75/376888 ACTIVE BASS CONTOUR (ITU)
B06302026 75/408264 PCMATE (ITU)
<PAGE>
B06302027 75/470406 RADIAVENT (ITU)
B06302028 75/519786 BOSTON RALLY
B06302029 75/495835 PERSONAL DESKTOP AUDIO (ITU)
B06302030 75/560211 BA
B06302031 75/670292 EBOSTON
B06302032 75/721710 BASSTRAC
B06302033 75/758003 SST
B06302034 MOBILE CONVERGENCE (ITU)
B06302035 75/758866 Y2OHM (ITU)
B06302036 75/758865 Y2(OMEGA)(ITU)
B06302037 75/758365 LOGO (BOSTON BOSTONACOUSTICS.C
B06302038 BOSTONACOUSTICS.COM (ITU
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THE COMPANY'S FINANCIAL STATEMENTS IN ITS QUARTERLY REPORT ON FORM 10Q FOR THE
QUARTERLY PERIOD ENDED SEPTEMBER 25, 1999.
</LEGEND>
<CIK> 0000805268
<NAME> Boston Acoustics,Inc.
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-25-2000
<PERIOD-END> SEP-25-1999
<CASH> 1857189
<SECURITIES> 0
<RECEIVABLES> 13529291
<ALLOWANCES> 413000
<INVENTORY> 19108870
<CURRENT-ASSETS> 37009954
<PP&E> 25698845
<DEPRECIATION> 11029724
<TOTAL-ASSETS> 52576395
<CURRENT-LIABILITIES> 8887586
<BONDS> 0
0
0
<COMMON> 50792
<OTHER-SE> 36038017
<TOTAL-LIABILITY-AND-EQUITY> 52576395
<SALES> 50524834
<TOTAL-REVENUES> 50524834
<CGS> 34847102
<TOTAL-COSTS> 10777101
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 373246
<INCOME-PRETAX> 4574031
<INCOME-TAX> 1762000
<INCOME-CONTINUING> 2812031
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2812031
<EPS-BASIC> .56
<EPS-DILUTED> .54
</TABLE>
