SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): July 28,1998.
Sheldahl, Inc.
(Exact name of Registrant as specified in its charter)
Minnesota 0-45 41-0758073
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
1150 Sheldahl Road
Northfield, Minnesota 55057
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (507) 663-8000
<PAGE>
Item 5. Other Events.
On July 28, 1998, Sheldahl, Inc. (the Company) and Molex Incorporated
(Molex) formed a joint venture to design, market and assemble modular
interconnect systems to replace wiring harnesses in primarily the automotive
market. The new company was named Modular Interconnect Systems, L.L.C. and it
is a Delaware limited liability company (Modular Interconnect). Modular
Interconnect will utilize proprietary flexible products developed by the
Company and proprietary connectors developed by Molex in the development of
the new modular interconnect system as an alternative to conventional
automotive wiring harnesses and flex circuit assemblies. The Company and
Molex will supply their respective products to Modular Interconnect pursuant
to long-term supply contracts.
The Company owns 40% and Molex owns 60% of Modular Interconnect. Each
party has a right of first refusal with respect to the other party's ownership
interest. Modular Interconnect is being funded by contributions from the
Company and Molex. Certain development costs of those components to be
designed and developed by Sheldahl for the new systems will also be reimbursed
by Molex and other development costs may be funded by loans from Molex. Both
the Company and Molex granted Modular Interconnect a non-exclusive license to
certain of their intellectual property for purposes of producing the new
modular interconnect systems. Each license takes effect and is contingent
upon a change of control of the Company or Molex and the purchase of such
person's membership interest in Modular Interconnect.
Modular Interconnect is managed by five managers, three of whom are
designated by Molex and two by Sheldahl. Certain transactions require the
approval of the majority of managers designated by each party.
The Limited Liability Company Agreement of Modular Interconnect is
filed herewith as Exhibit 10.1. The Company has requested that certain
portions of the Agreement be granted confidential treatment by the Commission.
Accordingly, certain portions of the Agreement have been deleted and replaced
by brackets with asterisks.
There can be no assurance that the joint venture will be successful or
that the new products will gain market acceptance or be commercialized, if at
all, in a profitable manner by Modular Interconnect. In addition, some
statements made herein may be forward-looking and subject to risks and
uncertainties such as those included in the Company's annual report, 10-K, 10-
Q and other SEC filings, as well as the risks and uncertainties inherent in
embarking upon a new joint venture for the purpose of developing a new
product.
The foregoing is only a summary of the Agreement which is filed with
this report as an exhibit. The foregoing summary is qualified in its entirety
by reference to the full text and terms of the Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
Exhibit 10.1 (*) Limited Liability Company Agreement of Modular
Interconnect Systems, L.L.C., dated July 28, 1998, without
exhibits.
Exhibit 99.1(**) Press Release, dated July 28, 1998.
________________
(*) Certain portions of this Exhibit have been deleted and filed
separately with the Commission pursuant to a request for confidential
treatment under Rule 24b-2. Spaces corresponding to the deleted portions are
represented by brackets with asterisks.
(**) Incorporated by reference to Exhibit 4.5 to the Company's
Current Report on Form 8-K filed with the SEC on August 18, 1998.
<PAGE>
SIGNATURE
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.
Sheldahl, Inc.
By /s/ John V. McManus
John V. McManus
Vice President-Finance
Dated: August 28, 1998.
<PAGE>
EXHIBIT 10.1
NOTE: Certain portions of this exhibit have been deleted and filed separately
with the Commission pursuant to a request for confidential treatment under
Rule 24b-2. Spaces corresponding to the deleted portions are represented by
brackets with asterisks.
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
OF
MODULAR INTERCONNECT SYSTEMS, L.L.C.
THE MEMBERSHIP INTEREST REPRESENTED BY THIS DOCUMENT (I) IS SUBJECT TO
RESTRICTIONS AS TO ITS SALE, TRANSFER, HYPOTHECATION, OR ASSIGNMENT AS SET
FORTH IN THIS LIMITED LIABILITY COMPANY AGREEMENT AND (II) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAW AND MAY NOT BE RESOLD OR TRANSFERRED WITHOUT APPROPRIATE
REGISTRATION OR THE AVAILABILITY OF EXEMPTIONS FROM SUCH REQUIREMENTS.
<PAGE>
LIMITED LIABILITY COMPANY AGREEMENT
OF
MODULAR INTERCONNECT SYSTEMS, L.L.C.
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered into as of
July 28, 1998, by and between Molex Incorporated, a Delaware corporation
having its principal place of business at 2222 Wellington Court, Lisle,
Illinois 60532 ("Molex"), and Sheldahl, Inc., a Minnesota corporation, having
its principal place of business at 1150 Sheldahl Road, Northfield, Minnesota
55057 ("Sheldahl"), for the purpose of forming Modular Interconnect Systems,
L.L.C., a Delaware limited liability company (the "Company") in accordance
with the provisions hereinafter set forth.
WITNESSETH:
WHEREAS, Molex, designs, manufactures, and markets interconnection
products;
WHEREAS, Sheldahl designs, manufactures, and markets flexible circuits;
WHEREAS, Molex and Sheldahl recognize that they may use their
complementary strengths and expertise to develop and sell modular interconnect
systems, utilizing flexible circuits developed by Sheldahl and interconnection
products developed by Molex, as an alternative to conventional automotive
wiring harnesses and flex circuit assemblies.
NOW, THEREFORE, in consideration of the mutual agreements, promises, and
undertakings hereinafter set forth, Molex and Sheldahl agree as follows:
ARTICLE I
Definitions
The following terms, as used herein, shall have the following respective
meanings:
"Acquired Member" as used herein shall have the meaning assigned
to it in Section 9.9.
"ADR" as used herein means the non-binding alternative dispute
resolution process provided for in Article 11.
"Agreement" as used herein means this Limited Liability Company
Agreement, as amended or restated from time to time.
"Associated Agreement(s)" as used herein shall mean the contracts
described on Exhibit 1A and the promissory notes described in Section 4.2
(each as the same may be amended or supplemented from time to time).
"Authorized Individuals" as used herein shall have the meaning
assigned to it in Section 11.1.
"Bankruptcy Laws" as used herein means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Bankrupt Member" as used herein shall have the meaning assigned
to it in Section 9.8.
"Business Plan" as used herein shall mean the business plan of the
Company which each of the Members shall agree on no later than August 1, 1998
and which shall be in substantially the form attached hereto as Exhibit 1B, as
such plan may be modified, supplemented, and amended from time-to-time by the
Managers pursuant to Sections 6.2(u) and 6.12.
"Business Scope" shall have the meaning assigned to it in
Section 2.5.
"Buy-Out Remedy" shall have the meaning assigned to it in
Section 9.7(b).
"Buy/Sell Closing" as used herein shall have the meaning assigned
to it in Section 14.4.
"Buy/Sell Notice" as used herein shall have the meaning assigned
to it in Section 14.1.
"Buy/Sell Offer" as used herein shall have the meaning assigned to
it in Section 14.2.
"Bylaws" as used herein shall mean the Bylaws of the Company
referenced in Section 2.3, as amended from time to time, which Bylaws are
expressly incorporated herein by reference as part of this Agreement.
"Capital Account" as used herein shall mean the capital account
maintained for each Member in accordance with Section 5.2 of this Agreement.
"Capital Contribution" as used herein shall mean, with respect to
any Member, the amount of capital contributed by such Member to the Company in
accordance with Article IV or Article V of this Agreement.
"Certificate of Formation" as used herein shall mean the
certificate of formation of the Company, as amended or restated from time to
time, filed in the Office of the Secretary of State of the State of Delaware
in accordance with the Delaware Act.
"Change of Ownership" shall mean the occurrence of any of the
following with respect to a Member:
(a) approval by the stockholders of such Member of any of the
following:
(i) a merger, reorganization or consolidation ("Merger")
with respect to which the individuals and entities who were
the respective beneficial owners of the Voting Securities of
the Member immediately before such Merger do not, after such
Merger, beneficially own, directly or indirectly, more than
[ ******* Confidential Treatment Requested ] of the voting
power of the Voting Securities of the corporation resulting
from such Merger in substantially the same proportion as
their ownership immediately before such Merger, or
(ii) the sale or other disposition of all or substantially
all of the assets of the Member, other than in connection
with a transaction or transactions with one or more wholly-
owned subsidiaries of such Member.
(b) [ ******* Confidential Treatment Requested ]
"Company" as used herein shall have the meaning assigned to it in
the introductory paragraph of this Agreement.
"Control" (including, with correlative meanings, the terms
"Controlled by" and "under common Control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Customers" as used herein shall mean all purchasers, including
dealers and end-users, of Products and parts or components thereof.
"Default Notice Period" shall mean the later of 30 days following
(i) receipt by a Defaulting Member of writte n notice from a non-Defaulting
Member of the occurrence of any Event of Default or (ii) the final resolution
of any dispute as to whether a default has occurred.
"Defaulting Member" shall have the meaning assigned to it in
Section 9.7(a).
"Delaware Act" as used herein means the Delaware Limited Liability
Company Act, 6 Del. C. 18-101, et seq., as amended from time to time.
"Development Agreement" shall have the meaning assigned to it in
Exhibit 1A.
"Dissolution" as used herein shall have the meaning assigned to it
in Section 10.3.
"Event of Default" as used herein shall have the meaning assigned
to it in Section 9.7(a).
"Fair Market Value Of The Interest" as used herein shall have the
meaning assigned to it in Section 9.7(b).
"Financial Plan" as used herein shall mean the financial plan of
the Company included within the Business Plan, as such financial plan may be
modified, supplemented, and amended from time-to-time by the Managers pursuant
to Sections 6.2(u) and 6.12.
"Indemnitee" as used herein shall have the meaning assigned to it
in Section 6.10(b).
"Interest" as used herein shall mean the ownership interest of a
Member in the Company (which shall be considered personal property for all
purposes), consisting of (i) such Member's Percentage Interest in Net Profits,
Net Losses, allocations of other items of income, gain, deduction and loss,
and distributions, (ii) such Member's right to vote or grant or withhold
consents with respect to Company matters as provided herein or in the Delaware
Act, and (iii) such Member's other rights and privileges as herein provided.
"Invoking Member" as used herein shall have the meaning assigned
to it in Section 14.1.
"I.R.C." as used herein means the Internal Revenue Code of 1986,
as amended.
"Krehbiel Family" as used herein shall have the meaning assigned
to it in the certificate of incorporation of Molex.
" [ ******* Confidential Treatment Requested ] " shall have the
meaning assigned to it in the Technology License Agreement between the Company
and Sheldahl.
"Liquidator" as used herein shall have the meaning assigned to it
in Section 10.2.
"Managers" as used herein shall mean the persons designated by the
Members pursuant to Section 6.1 hereof and all other persons who may from time
to time be duly elected or appointed to serve as Managers in accordance with
the provisions hereof, in each case so long as such person shall continue in
office in accordance with the terms hereof, and reference herein to a Manager
or the Managers shall refer to such person or persons in his, her, or their
capacity as Managers hereunder.
"Member Nonrecourse Debt" as used herein shall have the same
meaning as the term "partner nonrecourse debt" in Regulations
Section 1.704-2(b)(4).
"Member Nonrecourse Debt Minimum Gain" as used herein shall have
the same meaning as the term "partner nonrecourse debt minimum gain" in
Regulations Section 1.704-2(i)(2) and shall be determined in the manner set
forth in Regulations Section 1.704-2(i)(3).
"Member Transfer" as used herein shall have the meaning assigned
to it in Section 9.3(a).
"Members" as used herein shall mean Molex and Sheldahl and all
other persons who may from time to time become Members as herein provided.
"Minimum Gain" as used herein shall have the same meaning as the
term "partnership minimum gain" in Regulations Section 1.704-2(b)(2) and (d).
"Molex" as used herein shall have the meaning assigned to it in
the introductory paragraph of this Agreement.
"Net Profits" or "Net Losses" as used herein shall mean for each
fiscal year the Company's taxable income or loss determined under I.R.C.
Section 703(a) and adjusted as follows:
(a) Tax exempt income of the Company shall increase Net Profits
and shall decrease Net Losses.
(b) Expenditures described in Regulations
Section 1.704-l(b)(2)(iv)(i) shall decrease Net Profits and
increase Net Losses.
(c) If the value of property of the Company reflected in the
Members' Capital Accounts is adjusted in accordance with
Sections 5.2(c)(i) or (ii) or 5.2(d) hereof, the amount of
such adjustment shall be treated as a gain or loss in
determining Net Profits or Net Losses.
(d) If the value of property of the Company reflected in the
Members' Capital Accounts is adjusted pursuant to
Section 5.2(c) or (d), the Company disposes of such
property, and such disposition results in a gain or loss
that is recognized for federal income tax purposes, then
such gain or loss shall be computed by using the value of
such property as it is reflected in the Members' Capital
Accounts in lieu of the tax basis of such property.
(e) If the value of property of the Company as reflected in the
Members' Capital Accounts is adjusted in accordance with
Section 5.2(c), the amount of depreciation, depletion, or
amortization for such property shall be the Revised
Depreciation.
(f) If an adjustment of the Members' Capital Accounts is
required by Regulations Section 1.704-1(b)(2)(iv)(m) because
of a distribution to a Member other than a distribution in
liquidation of such Member's Interest, the amount of such
adjustment shall be treated for purposes of determining Net
Profits or Net Losses as gain, if it increases the tax basis
of property of the Company, or as a loss, if it decreases
the tax basis of such property of the Company.
(g) None of the allocations set forth in Sections 5.4 through
5.11 shall be taken into account in determining Net Profits
and Net Losses.
"Net Sales" as used herein shall mean sales of Products minus a
reasonable allowance for returns and discounts and excluding any extraordinary
or non-recurring gains determined in accordance with generally accepted
accounting procedures.
"Neutral" as used herein shall have the meaning assigned to it in
Section 11.3.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Nonrecourse Deductions" as used herein shall have the same
meaning as in Regulations Section 1.704-2(b)(1).
"Percentage Interest" as used herein shall mean a Member's share
of the Net Profits and Net Losses and Taxable Income or Loss of the Company
and the Member's right to receive distributions of the Company's assets. The
Percentage Interest of each Member shall initially be the percentage set forth
opposite such Member's name in Section 4.1(c). The combined Percentage
Interest of all Members shall at all times equal 100 percent.
"Prime Rate" shall mean interest at the rate of the prime lending
rate as published in the table money rates in the National Edition of The Wall
Street Journal on the date of the determination of such rate, or if such
publication is not published on such date, as published in the most recent
edition of the National Edition of the Wall Street Journal.
"Products" as used herein shall mean (i) any assembly which
utilizes both circuits [ ******* Confidential Treatment Requested ]
developed by Sheldahl and [ ******* Confidential Treatment Requested ]
connectors developed by Molex [ ******* Confidential Treatment Requested ] ,
(ii) any [ ******* Confidential Treatment Requested ] assembly within the
target applications referenced in Exhibit 2.5 utilizing Sheldahl circuits [
******* Confidential Treatment Requested ] created by [ *******
Confidential Treatment Requested ] , and (iii) other products which the
Managers agree to designate as Products pursuant to the provisions of
Section 6.2.
"Purchaser" as used herein shall have the meaning assigned to it
in Section 13.1.
"Recipient" as used herein shall have the meaning assigned to it
in Section 8.1.
"Regulations" as used herein means the Treasury Regulations,
including Temporary Treasury Regulations, promulgated under the I.R.C., as
from time to time in effect.
"Related Company(ies)" as used herein shall mean any corporation
or other legal entity which (a) owns a majority interest in or Controls any
Member; (b) is Controlled by, or the majority interest of which is owned by,
any Member; or (c) owns a majority interest in, Controls, is Controlled by, or
the majority interest of which is owned by, any corporation or other legal
entity described in clause (a) or (b) of this sentence.
"Responding Member" as used herein shall have the meaning assigned
to it in Section 14.1.
"Revised Depreciation" as used herein shall be determined as
follow: if the value of property of the Company as reflected in the Capital
Accounts of the Members differs from its adjusted basis for federal income tax
purposes because of an adjustment pursuant to Section 5.2(c) or (d), in lieu
of the amount of depreciation, cost recovery deduction, or amortization
prescribed under the I.R.C. for any period, such depreciation, cost recovery
deduction, or amortization shall be the amount that bears the same
relationship to the adjusted value of such property as reflected in the
Capital Accounts of the Members as the depreciation, cost recovery deduction,
or amortization computed for federal income tax purposes with respect to such
property for such period bears to the adjusted tax basis of such property. If
such property has a zero adjusted tax basis, Revised Depreciation may be
determined under any reasonable method selected by the Company.
"Royalty Payments" as used herein shall have the meaning assigned
to it in the Development Agreement.
"SEC" means the Securities and Exchange Commission.
"Seller" as used herein shall have the meaning assigned to it in
Section 9.5(a).
"Sheldahl" as used herein shall have the meaning assigned to it in
the introductory paragraph of this Agreement.
"Sheldahl Development Costs" as used herein shall have the meaning
assigned to it in the Development Agreement.
"Sheldahl Property" as used herein shall mean the property
identified on Exhibit 1D.
"Supply Agreement" as used herein shall have the meaning assigned
to it in Exhibit 1A.
"Support Agreements" as used herein shall have the meaning
assigned to it in Exhibit 1A.
"Taxable Income or Loss" shall mean income or loss as determined
under I.R.C. Section 703 and/or other applicable sections of the I.R.C.
"Transfer" as used herein shall have the meaning assigned to it in
Section 9.3(a).
"Technology License Agreements" shall have the meaning assigned to
it in Exhibit 1A.
"Voting Securities" of a corporation means securities of such
corporation that are entitled to vote in the election of directors of such
corporation.
ARTICLE II
Organization
2.1 Company. Subject to the terms and conditions of this Agreement, the
Members hereby form and agree to jointly operate a limited liability
company to be named Modular Interconnect Systems, L.L.C., which shall
engage in the business described herein.
2.2 Certificate of Formation . Concurrently with or as soon as possible
after the execution of this Agreement, the Managers shall cause the
Certificate of Formation, in the form attached hereto as Exhibit 2.2, to
be filed in the Office of the Secretary of State of the State of
Delaware in accordance with the requirements of the Delaware Act. From
time to time, the Managers shall cause to be filed, and the Members
agree to execute, such further certificates of formation, qualifications
to do business, fictitious name certificates, or like filings in such
jurisdictions as may be necessary or appropriate in connection with the
conduct of the Company's business or to provide notification of the
limitation of liability of Members and Managers under applicable law.
2.3 Bylaws . The Bylaws of the Company shall originally be in the form
attached hereto as Exhibit 2.3, which Bylaws are hereby approved and
adopted by the Members. The Bylaws may be amended from time to time as
provided therein and in Section 6.2(a) hereof.
2.4 Associated Agreements . The execution and delivery of, and performance
by the Company of its obligations under, the Associated Agreements, and
any agreements, instruments, or other documents contemplated thereby to
be entered into by the Company in connection therewith, are hereby
authorized (without requirement for further approval under Article VI
hereof), and the Chairman, the President, and any Vice President of the
Company are, and each of them acting alone is, authorized to execute and
deliver such documents on behalf of the Company.
2.5 Purpose . The business and purposes of the Company shall be (i) to
design, develop and manufacture Products for sale to Customers in
accordance with the terms and conditions set forth in this Agreement,
the Business Plan, and in the Associated Agreements (and as further
described in Exhibit 2.5) and to conduct activities incidental thereto
and (ii) to engage in such other business activities that may be
undertaken by a limited liability company under the Delaware Act as the
Members may from time to time mutually determine (the "Business Scope").
2.6 Place of Business . The Company shall initially conduct its business at
the facilities of Molex in Lisle, Illinois and at the facility of
Sheldahl in Clarkston, Michigan. Notwithstanding the foregoing, the
business of the Company may be conducted at such other place or places
as the Managers may from time to time determine. The Members expect
that, between 12 and 18 months following the date of this Agreement, the
Company will transition its business from the Molex facility in Lisle,
Illinois to a facility to be leased by the Company in Detroit, Michigan.
The registered office of the Company in the State of Delaware shall be
located at 1013 Centre Road, Wilmington, New Castle County, Delaware
19801, and the registered agent of the Company for service of process at
such address shall be the Corporation Service Company (or such other
registered office and registered agent as the Managers may from time to
time select).
2.7 Term . The Company shall dissolve on December 31, 2098, unless sooner
dissolved as hereinafter provided.
ARTICLE III
Representations and Warranties
3.1 Representations and Warranties of Molex . Molex hereby represents
and warrants to Sheldahl as follows (such representations and warranties
on the date of this Agreement being true and correct in all material
respects):
(a) Molex is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Molex has the
corporate power and authority to own, lease, and operate its assets,
properties, and businesses and to enter into this Agreement and to carry
out its obligations hereunder. The execution, delivery, and performance
of this Agreement by Molex have been duly authorized by all necessary
corporate action on the part of Molex, this Agreement is legally binding
upon Molex in accordance with its terms and the Associated Agreements
will be binding upon Molex in accordance with their terms following the
execution of such agreements by Molex.
(b) The execution, delivery, and performance by Molex of this Agreement, the
Associated Agreements and the transactions contemplated hereby and
thereby will not (i) violate the provisions of any order, judgment, or
decree of any court or other governmental agency or any arbitrator
applicable to Molex or the certificate of formation or bylaws of Molex;
(ii) result in a material breach of or constitute (with due notice or
lapse of time or both) a material default under any contract or
agreement to which Molex is a party or by which Molex is bound; or (iii)
violate any provision of law of the United States of America or any
state thereof, the violation of which is likely to have a material
adverse effect on the business, operations or condition (financial or
otherwise) of Molex or the Company.
3.2 Representations and Warranties of Sheldahl . Sheldahl hereby represents
and warrants to Molex as follows (such representations and warranties on
the date of this Agreement being true and correct in all material
respects):
(a) Sheldahl is a corporation duly organized, validly existing and in good
standing under the laws of the State of Minnesota. Sheldahl has
the corporate power and authority to own, lease and operate its
assets, properties, and business and to enter into this Agreement
and to carry out its obligations hereunder. The execution,
delivery, and performance of this Agreement and the Associated
Agreements by Sheldahl have been duly authorized by all necessary
corporate action on the part of Sheldahl, this Agreement is
legally binding upon Sheldahl in accordance with its terms and the
Associated Agreements will be binding upon Sheldahl in accordance
with their terms following the execution of such agreements by
Sheldahl.
(b) The execution, delivery, and performance by Sheldahl of this Agreement,
the Associated Agreements and the transactions contemplated hereby
and thereby will not (i) violate the provisions of any order,
judgment, or decree of any court or other governmental agency or
any arbitrator applicable to Sheldahl or the articles of formation
or bylaws of Sheldahl; (ii) result in a material breach of or
constitute (with due notice or lapse of time or both) a material
default under any contract or agreement to which Sheldahl is a
party or by which Sheldahl is bound; or (iii) violate any
provision of law of the United States of America or any state
thereof, the violation of which is likely to have a material
adverse effect on the business, operations or condition (financial
or otherwise) of Sheldahl or the Company.
(c) Immediately prior to Sheldahl contributing the Sheldahl Property to the
Company, Sheldahl was the sole owner of the Sheldahl Property,
free and clear of all licenses, liens, security interest and
encumbrances other than the lien described on Exhibit 3.2(c).
Sheldahl Property does not infringe upon the proprietary or
intellectual property rights of any person. As of the date of
this Agreement, Sheldahl has irrevocably contributed, assigned,
transferred, conveyed and delivered to the Company, its successors
and assigns, free and clear of all liens, a joint undivided
interest in and to the Sheldahl Property such that all right,
title and interest in the Sheldahl Property is jointly owned by
the Company and Sheldahl.
ARTICLE IV
Capital Structure
4.1 Members' Percentage Interests and Capital Contributions .
(a) Molex (i) will contribute [ ******* Confidential Treatment Requested ]
in cash to the Company on or before [******* Confidential
Treatment Requested ] , and (ii) will contribute an additional [
******* Confidential Treatment Requested ] in cash to the
Company on or prior to [ ******* Confidential Treatment Requested
].
(b) Sheldahl has contributed to the Company on or prior to the date hereof
the Sheldahl Property which property has a fair market value of [
******* Confidential Treatment Requested ] .
(c) The Percentage Interests assigned to Molex and Sheldahl in respect of
their initial Capital Contributions under Sections 4.1(a) and
4.1(b), respectively, are as follows:
Member Percentage Interest
Molex 60%
Sheldahl 40%
The Members agree that Molex shall have a Percentage Interest of 60% as of
the date of this Agreement and that such Percentage Interest shall not be
adjusted as of the payment of the amounts referenced in Section 4.1(a)(i) or
(ii). The initial cash contributions referenced in Section 4.1(a)(i) shall
be used for general corporate purposes to develop business opportunities for
the Company and to fund the operations of the Company during the first
twelve months of its operations. The Managers shall amend the foregoing
identification of Members and Percentage Interests from time to time as
necessary to reflect the transfer of Interests and the admission of
additional or substituted Members, in each case as herein provided.
4.2 Additional Capital Contributions .
(a) In addition to the contributions identified in Section 4.1(a)
hereof, Molex shall contribute to the Company additional cash as follows:
(i) [ ******* Confidential Treatment Requested ] on or
before [******* Confidential Treatment Requested ] ,
plus
(ii) [ ******* Confidential Treatment Requested ] on or
before [******* Confidential Treatment Requested ] , plus
(iii) upon the approval of the Managers, cash in an amount
equal to the product of Molex' Percentage Interest and
the amount of additional capital required by the
Managers up to an aggregated maximum additional
contribution by Molex and Sheldahl of [ *******
Confidential Treatment Requested ] , exclusive of
additional contributions otherwise required by this
Agreement.
(b) In addition to the contribution identified in Section 4.1(b) hereof,
Sheldahl shall contribute to the Company additional cash as follows:
(i) [ ******* Confidential Treatment Requested ] on or
before [******* Confidential Treatment Requested ] , plus
(ii) [ ******* Confidential Treatment Requested ] on or
before [******* Confidential Treatment Requested ] , plus
(iii) upon the approval of the Managers, cash in an amount
equal to the product of Sheldahl's Percentage Interest
and the amount of additional capital required by the
Managers up to an aggregated maximum additional
contribution by Molex and Sheldahl of [ *******
Confidential Treatment Requested ] , exclusive of
additional contributions otherwise required by this
Agreement.
(c) At the request of Sheldahl, Molex will loan to Sheldahl cash sufficient
to permit Sheldahl to make Sheldahl's additional capital contributions
pursuant to Section 4.2(b). Such loan or loans shall be unsecured and shall
be evidenced by promissory notes executed by Sheldahl and delivered to Molex,
shall bear interest at LIBOR, plus 1%, interest shall be payable quarterly and
principal shall be payable on or before the third anniversary of the loan.
The promissory notes referenced in the preceding sentence shall be in form and
substance agreed to by Molex and Sheldahl.
(d) Except as set forth in Sections 4.1 and 4.2, no Member shall be required
or permitted to make additional Capital Contributions to the Company except as
consented to by the Members pursuant to Sections 5.1(c) and 6.2(g) hereof.
ARTICLE V
Future Financing of the Company/Capital
Accounts/Allocations/Distributions
5.1 Future Financing. The Members anticipate that in the future the Company
may require additional funds for capital expenditures or working capital
requirements. Such additional funding shall be obtained from any of the
following sources, subject to approval by the Members:
(a) cash reserves of the Company;
(b) loans to be obtained from banks and other such independent sources, in
which event the Members shall exert reasonable efforts to assist
the Company in obtaining any such loans; provided, however, that
neither Member shall be required to guarantee any such loan except
upon the determination of such Member, in its sole discretion, to
guarantee any such loan.
(c) additional Capital Contributions made to the Company by the Members, in
proportion to their Percentage Interests, in amounts determined by
mutual agreement of the Members;
(d) loans to be made to the Company by (i) the Members and/or (ii) a Related
Company of either of the Members; or
(e) any other funding source mutually agreed upon by the Members.
5.2 Capital Accounts; Maintenance Generally . A single separate Capital
Account shall be maintained for each Member.
(a) Each Member's Capital Account shall be increased by (i) the amount of
money contributed by such Member to the Company, (ii) the fair
market value of property contributed by such Member to the Company
(net of liabilities secured by such contributed property that the
Company is considered to assume or take subject to under I.R.C.
Section 752), and (iii) the allocations to such Member of Net
Profits and the amount of any items of income and gain allocated
to such Member under Sections 5.6 through 5.10 hereof.
(b) Each Member's Capital Account shall be decreased by (1) the amount of
money distributed to such Member by the Company, (2) the fair
market value of property distributed to such Member by the Company
(net of liabilities secured by such distributed property that such
a partner is considered to assume or take subject to under I.R.C.
Section 752), and (3) such Member's distributive share of Net
Losses and the amount of any items of deduction or loss allocated
to such Member under Sections 5.8 through 5.10.
(c) The Capital Account of each Member shall, upon the occurrence of an
event described in Section 5.2(d), be adjusted to reflect the
revaluation of the Company's property (including intangibles such
as goodwill) pursuant to Treasury Regulation Sections 1.704-
1(b)(2)(iv)(f) and 1704-1(b)(2)(iv)(g). Such adjustment shall be
equal to the total unrealized income gain, loss or deduction
inherent in such property (that has not been reflected in the
Capital Accounts previously) as if there were a taxable
disposition of such property for its fair market value (taking
Section 7701(g) of the Code into account) on the date of such
adjustment. Such adjustment to the Capital Accounts under this
Section 5.2(c) shall be allocated among the Members pursuant to
Section 5.3, based on the ownership interests of the Members
immediately prior to the transaction giving rise to the adjustment
under these Sections 5.2(c) and (d).
(d) The following events shall give rise to an adjustment of the Capital
Accounts of the Members pursuant to Section 5.2(c).
(i) The contribution of money or other property (other than a de minimis
amount) to the Company by a new or existing Member as
consideration for an interest in the Company.
(ii) The liquidation of the Company or a distribution of money or other
property (other than a de minimis amount) by the Company to
a retiring Member as consideration for an interest in the
Company.
(e) Any Member who shall receive an interest (or whose Interest shall be
increased) by means of a transfer to him or her of all or part of
the Interest of another Member shall have a Capital Account which
reflects the Capital Account of the transferred Interest (or the
applicable percentage thereof in the case of a transfer of a part
of an Interest).
(f) Notwithstanding any provision in this Agreement to the contrary, the
Members intend that each Member's Capital Account shall be
maintained and adjusted in accordance with the I.R.C. and the
Regulations, including, without limitation, (i) the adjustments
permitted or required by I.R.C. Section 704(b) and, to the extent
applicable, the principles expressed in I.R.C. Section 704(c) and
(ii) the adjustments required to maintain Capital Accounts in
accordance with the "substantial economic effect test" set forth
in the Regulations under I.R.C. Section 704(b).
5.3 Allocation of Net Profits and Net Losses . After the allocations
required by Sections 5.4 through 5.10 hereof have been made, Net Profits
and Net Losses shall be allocated among the Members in accordance with
their respective Percentage Interests. Subject to Section 5.11, Taxable
Income or Loss shall, after allocations required by Sections 5.4 through
5.10 have been made, be allocated among the Members in accordance with
their Percentage Interests.
5.4 Minimum Gain Chargeback . If there is a net decrease in Minimum Gain
for a fiscal year, to the extent required in Regulations
Section 1.704-2(f), each Member shall be allocated items of income and
gain for such fiscal year, and, if necessary, for subsequent fiscal
years in accordance with Regulations Section 1.704-2(j)(2)(iii), equal
to the Member's share of the net decrease in Minimum Gain within the
meaning of Regulations Section 1.701-2(g)(2). The items of income and
gain to be allocated pursuant to this Section shall be those items
described in Regulations Sections 1.704-2(f)(6) and (j)(2)(i). This
Section 5.4 is intended to constitute a "minimum gain chargeback" within
the meaning of Regulations Section 1.704-2(f).
5.5 Member Nonrecourse Debt Minimum Gain Chargeback . If there is a net
decrease in Member Nonrecourse Debt Minimum Gain for a fiscal year, to
the extent required in Regulations Section 1.704-2(i)(4), each Member
with a share of that Member Nonrecourse Debt Minimum Gain, determined in
accordance with Regulations Section 1.704-2(i)(5), as of the beginning
of such fiscal year shall be allocated items of income and gain for such
fiscal year, and if necessary for subsequent fiscal years in accordance
with Regulations Section 1.704-2(j)(2)(iii), equal to the Member's share
of the net decrease in Member Nonrecourse Debt Minimum Gain, determined
in accordance with Regulations Section 1.704-2(i)(4). The items of
income and gain to be allocated pursuant to this Section shall be those
items described in Regulations Section 1.704-2(i)(4) and (j)(2). This
Section 5.5 is intended to constitute a "partner nonrecourse debt
minimum gain chargeback" within the meaning of Regulations
Section 1.704-2(i)(4).
5.6 Qualified Income Offset . If a Member unexpectedly receives an
adjustment, allocation, or distribution described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), such Member shall be
allocated items of income and gain (consisting of a pro rata portion of
each item of the income, including gross income, and gain of the Company
for such fiscal year) in an amount and manner sufficient to eliminate as
quickly as possible and, to the extent required by the Regulations, the
deficit Capital Account balance of such Member in excess of the amounts
that such Member is deemed obligated to restore pursuant to Regulations
Section 1.704-2(g)(1) and 1.704-2(i)(5). The allocations made
pursuant to this Section 5.6 shall be made after all other allocations
pursuant to Sections 5.3 through 5.5 and 5.8 through 5.10 have been
made. This Section 5.6 constitutes a "qualified income offset" within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(d).
5.7 Gross Income Allocation . In the event that any Member has a deficit
Capital Account at the end of any fiscal year in excess of the amount
that such Member is deemed obligated to restore pursuant to Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be
allocated items of income and gain in the amount of such excess. The
allocations made pursuant to this Section 5.7 shall be made after all
other allocations pursuant to Sections 5.3 through 5.6 and 5.8 through
5.10 have been made.
5.8 Allocation of Nonrecourse Deductions . Nonrecourse Deductions for each
taxable year shall be allocated among the Members in accordance with
their respective Percentage Interests.
5.9 Allocation of Member Nonrecourse Deductions . Member Nonrecourse
Deductions shall be allocated to the Members that bear the economic risk
of loss with respect to the Member Nonrecourse Debt in accordance with
Regulations Section 1.704-2(i)(1).
5.10 Allocation of Regulations Section 1.704-1(b)(2)(iv)(m) Adjustments . If
an adjustment to the Capital Accounts of the Members is required by
Regulations Section 1.704-1(b)(2)(iv)(m)(2) or (4) because of a
distribution in complete liquidation of a Member's Interest, the amount
of such adjustment shall be treated as an item of gain, if it increases
the tax basis of property of the Company, or as an item of loss, if it
decreases the tax basis of property of the Company. If Regulations
Section 1.704-1(b)(2)(iv)(m)(2) applies to the adjustment to the Capital
Accounts, such items of gain or loss shall be allocated to the Members
in accordance with their Percentage Interests. If Regulations
Section 1.704-1(b)(2)(iv)(m)(4) applies to the adjustment to the Capital
Accounts, such items of gain or loss shall be allocated to the Member
receiving the distribution.
5.11 I.R.C. Section 704(c) Tax Allocations . Solely for tax purposes, and in
accordance with I.R.C. Section 704(c), income, gain, loss, and
deductions with respect to property contributed to the Company by a
Member shall be shared among the Members so as to take account of the
variation between the basis of the property to the Company for federal
income tax purposes and its fair market value at the time of its
contribution. If the value of any property of the Company reflected in
the Members' Capital Accounts is adjusted pursuant to Section 5.2(c)(i)
or (ii), thereafter, allocations of depreciation, depletion,
amortization, and gain or loss with respect to such property shall be
determined so as to take into account the variation between the adjusted
tax basis and the adjusted value of such property as reflected in the
Members' Capital Accounts in the same manner as under I.R.C.
Section 704(c). The Members shall mutually agree before any method or
methods permitted under Regulations Section 1.704-3 are used for making
such allocations. Absent agreement to the contrary by the Members, the
"traditional" method will be followed per Regulations Section 1.704-
3(b).
5.12 Distributions .
(a) Within sixty (60) days following the end of each fiscal year of the
Company, the Company shall advise each Member in writing of the
income that the Company will be reporting for each Member for such
fiscal year pursuant to the I.R.C. and the provisions hereof.
(b) Commencing with the fiscal quarter ending June 30, 2003, and continuing
thereafter within 60 days following the end of each fiscal quarter
of the Company, the Company, subject to Section 18-607 of the
Delaware Act, shall make distributions to Members in an aggregate
amount equal to thirty percent of the Net Profits of the Company
for such fiscal quarter. Notwithstanding the preceding sentence,
the Company shall make no distribution for any fiscal quarter for
which Net Profits are less than eight percent of Net Sales.
Distributions pursuant to this Section 5.12(b) shall be made to
Members pro rata based on their respective Percentage Interests.
(c) Notwithstanding anything in this Section 5.12 or elsewhere in this
Agreement to the contrary, no distribution shall be made to any
Member following the occurrence of an Event of Default by such
Member. If the defaulting Member shall dispute whether a default
has occurred, or the amount of the direct loss, damage, cost, or
expense incurred by the non-Defaulting Member as a result of a
default, the matter shall promptly be submitted to the dispute
resolution procedure set forth in Article XI hereof and any
distributions otherwise payable to the defaulting Member shall be
paid into an escrow account pursuant to an escrow agreement in
form and substance agreed to by the Members pending resolution of
the dispute. Payment shall be made from the escrow account to the
non-Defaulting Member to the extent required to compensate such
Member for any direct loss, damage, cost or expense incurred by
the non-Defaulting Member as a result of a default and the
remainder to the Defaulting Member. If it is determined that an
Event of Default did not occur, all withheld distributions shall
be paid to the Member from which the distributions were withheld.
5.13 Return of Capital . Except as herein provided with respect to
distributions during the term of the Company or following Dissolution,
no Member has the right to demand a return of such Member's Capital
Contribution (or the balance of such Member's Capital Account).
Further, no Member has the right (i) to demand and receive any
distribution from the Company in any form other than cash or (ii) to
bring an action of partition against the Company or its property. The
Managers shall have no personal liability for the repayment of the
capital contributed by Members.
ARTICLE VI
Management of the Company
6.1 The Managers; Approval of Members.
(a) Except as otherwise provided herein or in the Bylaws, and subject to the
approval rights of the Members hereunder or under the Bylaws or
the Delaware Act, (i) the business and affairs of the Company
shall be managed by or under the direction of the Managers and
(ii) the power to act for or to bind the Company shall be vested
exclusively in the Managers, subject to the Managers' authority to
delegate powers and duties to officers and others as set forth
herein and in the Bylaws. Subject to obtaining any necessary
approvals hereunder, the Managers shall have the power and
authority to execute and deliver contracts, instruments, filings,
notices, certificates, and other documents of whatsoever nature on
behalf of the Company (including, without limitation, the
Certificate of Formation and any amendments thereto and any other
certificates required or permitted to be filed by or on behalf of
the Company pursuant to the Delaware Act or like law of any other
jurisdiction). Except as otherwise required by applicable law,
any such contract, instrument, certificate, or other document
shall require the signature of only one Manager or the signature
of such officer, employee, or agent to whom authority has been
delegated by the Managers.
(b) The number of Managers shall be five (5). Three (3) of the Managers and
their successors shall be appointed by Molex, and two (2) of the
Managers and their successors shall be appointed by Sheldahl. The
initial Managers and the Member appointing each of them are shown
on Exhibit 6.1(b). Each Manager shall serve at the pleasure of
the Member that appointed him or her. Upon the death,
resignation, or removal of any Manager, the Member that appointed
him or her shall promptly appoint his or her successor. Each
Member represents that the Managers appointed by such Member are
employees of such Member and, unless otherwise agreed by the
Members, covenants to only appoint its employees or employees of
the Company as Managers.
(c) Except as otherwise provided herein, or as may otherwise be required by
the Delaware Act, decisions of the Managers shall be taken by an
affirmative vote of a majority of the Managers at a meeting
attended by at least four Managers, or by unanimous written
consent of the Managers. Each Member shall use its best efforts
to cause the Managers appointed by such Member to attend all duly
called meetings. Each Manager shall have one vote on all matters
submitted to the Managers for approval.
(d) The following matters in particular shall be determined by the Managers:
(i) subject to Sections 6.6 and 6.7, election of the Chairman and the
President;
(ii) decisions as to any capital expenditure or capital project (whether by
purchase or lease) in excess of One Hundred Thousand Dollars
($100,000) to the extent included in the Business Plan;
(iii) decisions as to the giving of any guarantee or indemnity to secure the
liabilities or obligations of any other person or entity;
(iv) decisions as to the disposition of assets having either a book or market
value of more than One Hundred Thousand Dollars ($100,000)
in value;
(v) entering into, making any material amendment to or terminating any joint
venture or profit sharing agreements, patent or technology
license agreements, Product distribution agreements,
partnership agreements, and any other material contract or
transaction; and
(vi) determination of the compensation of the officers of the Company who are
employees of the Company and not employed by one of the
Members;
(e) From the date of this Agreement until the second anniversary of the date
of this Agreement, the Managers shall hold regular meetings at
least once every sixty days. Thereafter the Managers may, subject
to an amendment to the Bylaws, reduce the frequency of regular
meetings.
(f) Any action requiring the approval of the Members shall require the
consent of each Member, without regard to such Member's Percentage
Interest.
6.2 Special Approvals . Notwithstanding the general authority of the
Managers under Section 6.1, the following matters shall, except as provided in
(l) below, require the approval of (i) a majority of the Managers appointed by
Molex, and (ii) a majority of the Managers appointed by Sheldahl:
(a) any restatement, amendment, supplement or repeal of this Agreement or
the Bylaws;
(b) any merger or consolidation of or involving the Company;
(c) any lease, sale, exchange, conveyance, or other transfer or disposition
of all, or substantially all, of the assets of the Company;
(d) a change of the name of the Company;
(e) engaging in a business other than as provided for by this Agreement;
(f) payment of distributions to the Members (other than those provided for
in Section 5.12(b) and except in connection with the Dissolution
and winding up of the Company);
(g) the contribution of additional capital by any Member to the Company
(other than as provided for in Article IV);
(h) the assignment of any of the property of the Company in trust for the
benefit of creditors, or the making or filing, or acquiescence in
the making or filing by any other person, of a petition or other
action requesting the reorganization or liquidation of the Company
under the Bankruptcy Laws;
(i) the issuance of any additional Interests or, except as otherwise
provided in Article IX in connection with the transfer of an
Interest, the admission of additional or substituted Members;
(j) any transaction between the Company and any Member or a Related Company
of any Member;
(k) production by or on behalf of the Company of component parts which are
available from either Sheldahl or Molex;
(l) purchase by or on behalf of the Company of component parts from
suppliers other than Sheldahl or Molex, provided, however, that
if, except as permitted by the applicable Supply Agreement, either
Member is unable to consistently supply to the Company component
parts which both (i) meet the Company's specifications within 180
days following notice by the Company and (ii) are available in
such quantities as the Company shall request within 180 days
following notice by the Company (such quantities so requested to
be consistent with the forecast of estimated requirements provided
pursuant to the applicable Supply Agreement), then a majority of
the Managers appointed by the other Member shall have the sole
power to approve and direct the purchase by or on behalf of the
Company of component parts from suppliers other than Sheldahl or
Molex;
(m) decisions as to borrowing, finance leases, or the creation of security
interest, liens, or mortgages in or on any property or assets of
the Company, in amounts that exceed One Hundred Thousand Dollars
($100,000);
(n) decisions as to making any loan, advance, or giving credit in amounts
that exceed One Hundred Thousand Dollars ($100,000);
(o) selection of independent auditors (but not tax preparers);
(p) material decisions regarding the initiation, defense, conduct, or
settlement of litigations, arbitrations, or other disputes
involving amounts in excess of One Hundred Thousand Dollars
($100,000);
(q) decisions as to the source for providing final assembly and test of the
Products;
(r) entering into, making any material amendment to or terminating any
Associated Agreement to which the Company is a party, or any
contract, agreement, lease, or other arrangement with a Member or
Related Company, or waiving any material right of the Company
under any Associated Agreement;
(s) approval of any annual budget, strategic plan, Financial Plan or
Business Plan for the Company;
(t) acquiring, purchasing, or subscribing for, or selling or otherwise
disposing of, any shares, debentures, mortgages, or securities (or
any interest therein) in any company or any other entity;
(u) establishing any new branch, office, factory, or other permanent
establishment or forming any subsidiary company or entity of the
Company;
(v) any changes to the definition of Products contained in this Agreement;
(w) any change in the Business Purpose of the Company;
(x) the determination of the terms of use of the applications described in
Section 6.9(a); and
(y) any other matter that is subject to the agreement, consent, or approval
of the Members hereunder (unless previously considered by the
Members).
6.3 Default Under Supply Agreement . In the event of the continuance of an
event of default under a Supply Agreement, the Managers appointed by the
Member not a party to such agreement shall have the power to approve and
direct the enforcement of such agreement by the Company.
6.4 Meetings of Managers/Conduct of Business . Meetings of the Managers
shall be held as set forth in the Bylaws and determinations to be made
by the Managers in connection with the conduct of business of the
Company shall be made in the manner provided in the Bylaws, unless
otherwise provided in this Agreement.
6.5 Remuneration of Managers . The Managers shall receive no compensation
from the Company for performing their services as Managers. It is
understood that each of the Members shall be solely responsible for the
payment of the salaries, benefits, retirement allowances, and travel and
lodging expenses for all Managers appointed by it.
6.6 Chairman . The Managers shall have a Chairman (being one of the
Managers) who initially shall be appointed by Molex. The Chairman shall
also be an officer and shall serve a one-year term. After the initial
one-year term, successor Chairmen shall be appointed as provided in
Section 6.1(d)(i).
6.7 Officers of the Company . The officers of the Company shall be a
President, a Treasurer, a Secretary, and such other officers as may be
determined by the Managers. The initial officers of the Company are
identified on Exhibit D hereto.
6.8 Authority and Duties of Officers . The officers of the Company shall
have such authority and shall perform such duties as are customarily
incident to their respective offices, and/or such other or additional
authority and duties as may be specified in or determined pursuant to
the Bylaws or delegated by the Managers.
6.9 Operation of the Company .
(a) [ ******* Confidential Treatment Requested ] . In the event of a
dispute as to whether a product is encompassed by the preceding
sentence, the Managers appointed by Sheldahl and the Managers
appointed by Molex shall attempt to resolve such dispute and, in
the event such dispute shall not be resolved within 10 days,
either Member may invoke the dispute resolution process contained
in Article XI.
(b) The Members and/or the Company shall enter into the agreements described
on Exhibit 1A on the terms and conditions specified on Exhibit 1A
and such other reasonable terms and conditions as shall be agreed
to by the parties to such agreements.
6.10 Limitation on Liability of Managers and Officers; Indemnification .
(a) No Manager or officer of the Company shall have any liability to the
Company or the Members for any losses sustained or liabilities
incurred as a result of any act or omission of such Manager or
officer if (i) the Manager or officer acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to,
the interests of the Company, and, with respect to any criminal
proceeding, had no reason to believe his or her conduct was
unlawful and (ii) the conduct of the Manager or officer did not
constitute actual fraud, gross negligence, or willful misconduct.
(b) The Company shall indemnify and hold harmless the Managers and officers
of the Company (individually, an "Indemnitee") from and against
any and all losses, claims, demands, costs, damages, liabilities,
expenses of any nature (including reasonable attorneys' fees and
disbursements), judgments, fines, settlements, and other amounts
arising from any and all claims, demands, actions, suits, or
proceedings, civil, criminal, administrative, or investigative, in
which an Indemnitee may be involved, or threatened to be involved,
as a party or otherwise, arising out of or incidental to the
business of the Company, regardless of whether an Indemnitee
continues to be a Manager or officer at the time any such
liability or expense is paid or incurred, if (i) the Indemnitee
acted in good faith and in a manner it or he or she reasonably
believed to be in, or not opposed to, the interests of the
Company, and, with respect to any criminal proceeding, had no
reason to believe his or her conduct was unlawful and (ii) the
Indemnitee's conduct did not constitute actual fraud, gross
negligence or willful misconduct.
(c) Expenses incurred by an Indemnitee in defending any claim, demand,
action, suit, or proceeding subject to this Section 6.10 shall,
from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit, or proceeding
upon receipt by the Company of an undertaking by or on behalf of
the Indemnitee to repay such amounts if it is ultimately
determined that such person is not entitled to be indemnified as
authorized in this Section 6.10. The indemnification provided by
this Section 6.10 shall be in addition to any other rights to
which an Indemnitee may be entitled under any agreement, consent
of the Members, as a matter of law or equity, or otherwise, shall
continue as to an Indemnitee who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors,
assigns and administrators of the Indemnitee. Subject to the
foregoing sentence, the provisions of this Section 6.10 are for
the benefit of the Indemnities and shall not be deemed to create
any rights for the benefit of any other persons.
6.11 Liability to Third Parties . The debts, obligations, and liabilities of
the Company, whether arising in contract, tort, or otherwise, shall be solely
the debts, obligations, and liabilities of the Company, and no Manager shall
be obligated personally for any such debt, obligation, or liability by reason
of his or her acting as a Manager of the Company.
6.12 Business Plan .
(a) Except as otherwise set forth in this Agreement, not later than 60 days
prior to the expiration of any Company fiscal year during the term
of this Agreement the Managers shall prepare and deliver to each
Member a Business Plan for the immediately succeeding fiscal year,
which shall cover the general business direction, policies and
programs for the Company during such year, which direction shall
be within the Business Scope. Each Business Plan shall include as
a part thereof a Financial Plan for the Company fiscal year
covered by the Business Plan setting forth projected Company
revenues and all projected Company costs and expenses for such
company fiscal year.
(b) The Business Plan for the Company attached as Exhibit 1B is hereby
ratified and approved by the Members. With regard to subsequent
Company Fiscal years, the Managers shall have a period of 30 days
after receipt of any proposed Business Plan within which to give
their approval to such Business Plan, in the manner required under
Section 6.2. Where approval of a proposed Business Plan is
required under this Section 6.12 and such proposed Business Plan
does not receive the approval of the Managers prior to expiration
of such 30-day period, such proposed Business Plan shall be deemed
disapproved, whereupon Company costs and expenses incurred during
the next succeeding Company fiscal year shall not exceed the
amounts or differ from the types set forth in the Financial Plan
for the immediately preceding Company fiscal year. The Managers
may at any time approve a Business Plan to cover a period of a
year or less, which proposed Business Plan may add to, modify or
amend the terms of any existing Business Plan.
6.13 Reimbursements . Except as may be provided in this Agreement or in the
Associated Agreements or as may be approved by the Members pursuant to
Section 6.2, no Member, no Related Party nor any such Member's or
Related Party's officer, director, employee or agent shall receive any
compensation or other payments from the Company for its services, or be
entitled to reimbursement from Company funds for any expenses incurred
by it, except that the Managers in performing their obligations as such
shall be reimbursed for the out-of-pocket expenses incurred by them in
managing the Company and its business.
6.14 Insurance .
(a) In the discretion of the Managers, the Company shall procure and
maintain in full force and effect appropriate insurance, the
premiums for which shall be an expense of the Company. Examples
of such insurance include:
(i) Insurance on the assets of the Company, and all improvements
thereto against all loss or damage by fire, lightning, flood, wind
and all other risks covered by the Standard Coverage "All Risk"
endorsements.
(ii) Worker's compensation and similar employee benefits as
required by law.
(iii) Commercial general liability insurance on an occurrence
basis, including personal injury, bodily injury, death or property
damage liability, and automobile liability insurance.
(iv) Excess liability coverage insuring the same risks as the
underlying coverage for the benefit of the Members and the Company
as named insureds.
(v) Environmental liability insurance.
(vi) Third party product recall expense insurance for
manufacturing errors.
(vii) Such other insurance as the Members shall from time to time
deem necessary.
(b) All insurance policies shall be issued in the name of the Company.
The insurance shall not contain any provision for co-insurance coverage and
shall include coverage against punitive damages to the extent allowed by law.
(c) All insurance shall be effected under valid and enforceable
policies issued by insurers of recognized responsibility
satisfactory to the Members, and shall, to the extent obtainable,
provide that (x) such policies shall not be cancelled without at
least 30 days' prior written notice to each Member, and (y) any
loss payable thereunder shall be payable notwithstanding any act
or negligence of any named insured.
6.15 Indemnity .
(a) Each Member covenants and agrees to defend, indemnify and hold harmless
the Company, Related Companies and their respective officers,
directors and employees from and against any claim, suit, loss or
damage, including reasonable attorneys fees, arising out of or
relating to (i) any third party suits (excluding suits by Related
Parties) to the extent arising out of or relating to the breach by
such Member or its employees or agents of the terms of this
Agreement or (ii) the breach by such Member's Related Companies
(or their respective employees or agents) of the obligations
imposed on such Related Companies under this Agreement.
(b) Any party seeking indemnification (the "Indemnified Party") shall
promptly notify the indemnifying party in writing of any claim
believed to be subject to indemnification; provided, however, that
no delay on the part of the Indemnified Party in providing such
notice shall relieve the indemnifying party from its
indemnification obligations except to the extent the indemnifying
party is prejudiced thereby. The Indemnified Party shall allow
the indemnifying party to control the defense of any third party
claim for which the Indemnified Party seeks indemnity under this
Section 6.15 and shall cooperate in the indemnifying party's
defense thereof, at the expense of the indemnifying party. If the
indemnifying party assumes the defense of any such claim, the
indemnifying party's sole obligation with respect to such claim
shall be limited to holding the Indemnified Party harmless from
and against any judgments or settlements approved by the
indemnifying party in connection with the claim, which consent
will not be unreasonably withheld or delayed. In the event the
indemnifying party shall not assume the defense of any such claim,
the Indemnified Party shall have the right, following written
notice to the indemnifying party, to undertake to defend or settle
such claim on behalf of and for the account of and risk of loss of
the indemnifying party. Regardless of which party controls the
settlement or defense of any claim, both parties shall act in good
faith and no entry of judgment or settlement of a claim may be
agreed to without the written consent of both the Indemnified
Party and the indemnifying party, which consent shall not be
unreasonably withheld or delayed; provided, however, that the
Indemnifying Party may settle any such claim solely for the
payment of money provided that the Indemnified Party receives a
full release and has no obligations with respect to such
settlement.
ARTICLE VII
Exclusive Efforts and Non-Solicitation
7.1 Exclusive Efforts . [ ******* Confidential Treatment Requested ] .
Except as restricted by this Section 7.1, each of the Members and its Related
Companies shall be free to engage in any other businesses or activities and to
receive the income and benefits thereof (and neither the Company nor any other
Member shall have any interest therein by reason of this Agreement), and no
Member shall have any duty or obligation to present to the Company or any
other Member any such other business opportunities that are outside the scope
of the purposes of the Company.
7.2 Non-Solicitation . [ ******* Confidential Treatment Requested ] .
Each Member will cause its Related Companies (other than the Company) to
comply with this Section 7.2 in the same manner required of such Member.
ARTICLE VIII
Nondisclosure of Information
8.1 Confidentiality .
(a) All disclosures of trade secrets, know-how, financial information,
or other confidential information made by the Company or any
Member under or in connection with this Agreement or the
Associated Agreements, as well as the terms of this Agreement and
all Associated Agreements, shall be received and maintained in
confidence by the recipient (the "Recipient") and each Recipient
shall treat all such trade secrets, know-how, financial
information or other confidential information as the confidential
property of the disclosing party and shall not use same other than
for the benefit of the Company under this Agreement. The
Recipient shall not disclose same to any other person except:
(i) to the extent persons directly responsible for the
performance of the obligations of this Agreement and for the
effective operation of the Company require such information
in connection with the performance of the obligations of
this Agreement and the effective operation of the Company;
(ii) to the extent professional advisers of the Members and the
Company require such information in connection with
providing their services to the Members and/or to the
Company; and
(iii) to the extent disclosures of such information by employees
of the Company to suppliers, distributors, customers and
other persons are necessary or appropriate for the effective
carrying on of business by the Company provided such
suppliers, distributors, customers and other persons execute
a non-disclosure agreement prohibiting the further
disclosure of such information.
Notwithstanding the provisions of this Section 8.1(a), either
Member may, to the extent required by law or the regulations of
any agency or self-regulatory agency, file this Agreement with any
governmental authority, agency or self-regulatory agency provided
that such Member gives the other Member notice prior to such
filing as far in advance as reasonably possible (but in any event
not less than 5 days prior to such filing) and reasonably
cooperates with the other Member in seeking confidential treatment
of any provision or provisions of this Agreement requested to be
kept confidential by such other Member.
(b) Notwithstanding the provisions of Section 8.1(a), information
disclosed by the Company or any Member shall not be considered
confidential information pursuant to this Section 8.1 to the
extent that:
(i) such information is required by law to be disclosed by the
Members or the Company, provided that Recipient shall
(A) provide the disclosing party with prompt notice of such
demand (and in any event prior to disclosure), (B) cooperate
with the disclosing party in resisting such disclosure or
seeking suitable protection prior to such disclosure, and
(C) disclose only such confidential information as Recipient
is compelled by law to disclose;
(ii) the Recipient is able to show that such information was
known to the Recipient prior to such disclosure;
(iii) the Recipient is able to show that such information was
independently developed by the Recipient without use of any
confidential information of the Company or any other Member;
(iv) the Recipient is able to show such information was acquired
by the Recipient from a third party without a continuing
restriction on use; or
(v) such information which was, or becomes, publicly available
through no breach of this Agreement by the Recipient or its
representatives.
The content of this Agreement or any other contract or agreement entered into
by among the Members and/or the Company shall be considered the confidential
information of the Company and each Member which is a party to any such
agreement and shall not be disclosed without the prior written consent of the
Company and the non-disclosing Member or Members; provided, however, that a
Member may disclose to third parties the existence of the Company and the
names of the Members. Notwithstanding the provisions of this Section 8.1(b),
either Member may, to the extent required by law or the regulations of any
agency or self-regulatory agency, file this Agreement with any governmental
authority, agency or self-regulatory agency provided that such Member gives
the other Member notice prior to such filing as far in advance as reasonably
possible (but in any event not less than 5 days prior to such filing) and
reasonably cooperates with the other Member in seeking confidential treatment
of any provision or provisions of this Agreement requested to be kept
confidential by such other Member.
8.2 Duty of Care . The Company and each Member will take such steps as lie
within its power to assure that all of its Managers, directors, officers and
employees, or of the Managers, directors, officers and employees of its
Related Companies, to whom confidential information is disclosed take all
proper precautions to prevent the unauthorized disclosure and use of the
confidential information referenced in Section 8.1. Each Member shall cause
all such Managers, officers and employees to execute and deliver to the
Company such agreement or agreements related to the non-solicitation, non-
competition, confidentiality and assignment of intellectual property rights as
the Company shall reasonably request.
ARTICLE IX
Rights and Obligations of Members
9.1 Limited Liability . No Member shall be personally liable for any debts,
liabilities, or obligations of the Company; provided that each Member
shall be responsible (i) for the making of any Capital Contribution
required to be made to the Company by such Member pursuant to the terms
hereof and (ii) for the amount of any distribution made to such Member
that must be returned to the Company pursuant to the Delaware Act.
9.2 Participation in Management . No Member, as such, shall take any part
in the management and control of the business of the Company nor shall
any Member, by reason of its status as such, have any right to transact
any business for the Company or any authority or power to sign for or
bind the Company. Notwithstanding the foregoing, Members shall have the
right to approve or disapprove or otherwise consent or withhold consent
with respect to such matters as are specified in this Agreement, the
Bylaws or the Delaware Act; and provided that Members may take such
actions on behalf of the Company and execute documents or otherwise bind
the Company to the extent, if any, that such powers are delegated to any
such Member by the Managers from time to time.
9.3 Restrictions on Transfer .
(a) Except as expressly permitted by this Agreement, no Member shall,
without in each instance obtaining the prior approval of the
remaining Members, sell, assign or otherwise transfer, or
mortgage, charge or otherwise encumber, or suffer or permit any
third party to sell, assign or otherwise transfer, or mortgage,
charge or otherwise encumber (collectively "Transfer"), all or any
part of its Interest, or contract to do, suffer or permit (other
than the lien described on Exhibit 9.3) any of the foregoing. Any
such Transfer or attempted transfer by a Member of its Interest,
including an attempted Transfer as a result of the foreclosure of
the lien described on Exhibit 9.3 (a "Member Transfer" ) in
violation of this Agreement shall be void and of no force or
effect. Upon the Transfer by a Member of all of its Interest in a
manner permitted or required pursuant to the provisions of this
Article IX, such Member shall be deemed to have withdrawn as a
Member and shall have no further rights as a Member hereunder.
(b) Either Member may Transfer all or any part of its Interest to the other
Member upon such terms as may be agreed between them (and, in the
case of a Transfer of all of the Interest of a Member, the other
Member may designate a third party to purchase all or part of the
Interest and to be admitted as a substituted Member and continue
the business of the Company without Dissolution).
(c) Either Member may Transfer all of its Interest to any of its Related
Companies which is not a competitor of the other Member; provided,
however, that such transfer shall not relieve the Member
Transferring its Interest of any liability pursuant to this
Agreement and such Transferring Member shall remain liable for all
of its obligations pursuant to this Agreement, and all of the
liabilities of the Related Company to whom the Interest is
Transferred.
(d) If at any time a Transfer is attempted to be made in violation of the
provisions of this Agreement, then the Non-transferring Member
shall, in addition to its rights and remedies under this Agreement
and at law and in equity, be entitled to a decree or order
restraining and enjoining such Transfer. The Members expressly
acknowledge and agree in this regard that damages at law will be
difficult to ascertain in the event of any such violation of this
Agreement, and would constitute an inadequate remedy for a breach
or threat of breach of the provisions of this Agreement concerning
Transfers as set forth above.
9.4 Agreement with Transferees . No transfer by a Member of its Interest to
a person other than a Member shall be effective to make such transferee
a Member or entitle such transferee to any of the benefits or rights
hereunder until such transferee agrees in writing (i) to assume and be
bound by all of the terms and provisions of this Agreement and all of
the obligations of the transferring Member hereunder, and (ii) to be
subject to all of the restrictions to which the transferring Member is
subject under the terms of this Agreement and any further agreements
with respect to the Company and its business. No permitted transfer of
an Interest to a person other than a Member hereunder shall be effective
until the Company shall have received and have accepted the written
agreement of the third-party transferee required by this Section 9.4,
with the Company's acceptance of such transferee's agreement to be no
later than the fifth day of the calendar month next following the month
during which such transferee's agreement was received. A transferee of
a Member's Interest shall be entitled to receive from the Company
distributions of cash and other Company property, and allocations of Net
Profit and Loss with respect to such Member's Interest, only after the
effective date of such transfer.
9.5 Third Party Transfer Procedures .
(a) In the event either Member wishes to Transfer all of its Interest to a
third party (any such Member being herein referred to as
"Seller"), it shall first offer to Transfer such Interest to the
other Member at the price and on the terms and conditions offered
by the third party by providing written notice thereof, which
notice shall include a copy of the written offer made by such
third party, including all terms and conditions thereof, and shall
identify the third party by name. Within forty-five (45) days of
the receipt of Seller's notice, the other Member may either
(i) accept the offer to purchase the Interest at the price and on
the other terms set forth in the third party offer, (ii) decline
such offer, or (iii) require Seller to obtain from the third party
an irrevocable written offer to purchase such other Member's
Interest at a price per percentage of Interest equal to the third
party offer price. In the event that the other Member does not
take any such action in response to the notice, it shall be deemed
to have declined the offer.
(b) If the other Member accepts the offer of the Seller pursuant to the
clause (i) of Section 9.5(a), then the other Member, or a Related
Company designated by it, shall purchase the offered Interest
pursuant to the terms of the third party offer (and, as
applicable, may cause the Related Company purchaser to be admitted
as a substituted Member and continue the business of the Company
without Dissolution). If the other Member declines the offer,
Seller shall have the right to Transfer its Interest to such third
party at a price not less than that included in Seller's notice,
and otherwise on terms and conditions substantially the same as
set forth in the Seller's notice, within ninety (90) days of the
date of Seller's notice (and at the time of closing of the
Transfer, the transferee shall be admitted as a substituted Member
with respect to the transferred Interest and the business of the
Company shall be continued). If the other Member takes the action
referenced in clause (iii) of Section 9.5(a) and the third party
makes an irrevocable written offer to purchase the other Member's
Interest as therein provided within thirty (30) days, then the
other Member and Seller shall jointly sell their respective
Interests to the third party within one hundred and twenty (120)
days of the date of Seller's notice. If the third party does not
make such an offer, then Seller shall have no right to make the
Transfer.
9.6 Withdrawal from Company . No Member shall be entitled to withdraw as a
Member from the Company except pursuant to a Transfer by such Member of
its entire Interest pursuant to and as permitted by this Agreement or
upon Dissolution and completion of the subsequent liquidation, winding
up and termination of the Company and its business. Except as otherwise
provided in this Agreement, no Member may withdraw any of its capital
contributions or the balance in its Capital Account without the approval
of the other Members.
9.7 Default .
(a) The occurrence of any of the following events shall constitute an Event
of Default ("Event of Default") hereunder on the part of the
Member with respect to which such event occurs (the "Defaulting
Member"):
(i) any representation or warranty made by the Member herein was
false or misleading in any material respect as of the date of this
Agreement the result of which has a material adverse effect on the
Company or the other Member; or
(ii) except as otherwise provided in this Section 9.7(a), the
Member shall fail to perform or observe any material covenant or
agreement contained in this Agreement, to be performed or observed
by such Member or a Related Company, which failure shall remain
unremedied for 90 days after Notice thereof shall have been given
to such Member by any other Member; or
(iii) the Transfer of an Interest by such Member in violation of
the restrictions on transfer set forth in this Agreement
(including a Transfer as a result of the foreclosure of the lien
described on Exhibit 9.3); or
(iv) the failure of either Sheldahl or Molex to continuously use
commercially reasonable efforts to satisfy its obligations
pursuant to the applicable Supply Agreement within 180 days of
receipt of a notice of the Company that Sheldahl or Molex, as
applicable, has not substantially met its obligations to supply
components to the Company in the volumes and of the quality
required by the applicable Supply Agreement.
(v) the failure of such Member to make an additional capital
contribution to which it has given its approval or otherwise as
required under this Agreement, which failure remains unremedied
for 90 days after notice thereof shall be given to such Member by
the Company.
(b) Upon the occurrence of an Event of Default by the Defaulting
Member, the other Member may, without prejudice to any other
remedies available to it at law or in equity but subject to
Section 9.14, deliver written notice to the Defaulting Member
within the Default Notice Period electing either (x) to dissolve
the Company pursuant to Section 10.1(d) or (y) to purchase the
defaulting Member's Interest at the fair market value of the
Interest determined pursuant to Article XIII (the "Fair Market
Value Of The Interest") less the amount of any direct loss,
damage, cost, or expense incurred by the non-Defaulting Member as
a result of a default for which amounts have been placed into an
escrow agreement pursuant to this Agreement (the "Buy-Out
Remedy"). If the Defaulting Member shall dispute whether a
default has occurred, the matter shall promptly be submitted to
the dispute resolution procedure set forth in Article XI hereof.
In the event that the other Member determines to purchase the
interest of the Defaulting Member pursuant to clause (y) above,
then the Member whose interest is to be acquired shall be deemed
to be a withdrawing Member and to have given notice of an offer to
sell its Interest to the other Member at the Fair Market Value Of
The Interest determined pursuant to Article XIII, and the
operative provisions of Article XIII shall be applicable.
(c) The closing of the purchase of the Defaulting Member's Interest
hereunder shall take place not later than 30 days after
determination of the purchase price of the Defaulting Member's
Interest. If the closing of the purchase pursuant to this
Section 9.7 shall occur on or prior to [ ******* Confidential
Treatment Requested ] , the purchasing Member shall deliver to
the Defaulting Member recourse promissory notes providing for the
payment of 20 percent of the purchase price, without interest, on
each of the first, second, third, fourth, and fifth anniversaries
of such closing. If the closing of the purchase pursuant to this
Section 9.7 shall occur after [ ******* Confidential Treatment
Requested ] , the purchasing Member shall deliver to the
Defaulting Member 20 percent of the purchase price on the date of
the closing and shall deliver to the Defaulting Member recourse
promissory notes bearing interest at the Prime Rate providing for
the payment of the remainder of the purchase price on each of the
first, second, third, and fourth anniversaries of such closing.
In addition, in either case, the purchasing Member shall pledge
its Interest as collateral for the promissory notes delivered to
the Defaulting Member. Any amounts due and payable at the time of
Closing pursuant to any loans made by the non-Defaulting Member to
the Defaulting Member shall be immediately set-off against the
purchase price otherwise payable by the non-Defaulting Member for
the purchase of the Defaulting Member's Interest.
(d) From and after the occurrence of an Event of Default, and during
the exercise of the Buy-Out Remedy as set forth herein, the
Defaulting Member shall not be entitled to receive any
distributions of cash or other Company property hereunder, but
rather all cash and other Company property that would otherwise be
distributable to the Defaulting Member shall be paid into an
interest bearing escrow account pursuant to an escrow agreement in
form and substance agreed to by the Members. The escrowed amounts
shall be paid to the non-Defaulting Member to the extent such
Member incurred any direct loss, damage, cost or expense incurred
as a result of the default by the Defaulting Member. Any amount
remaining in the escrow account following such payment shall be
paid to the Defaulting Member.
(e) The purchase of any Company Interest pursuant to this Agreement,
whether of a Defaulting Member or otherwise, shall be governed by
the following additional terms: (i) the Interest purchased shall
be free and clear of all security interests, charges, liens and
encumbrances, (ii) if the purchased Interest cannot be transferred
free and clear of all security interests, charges, liens or
encumbrances, the purchasers thereof shall have the right to
deduct liens of a fixed or ascertainable amount in determining
such purchase price and assume such obligations or taken any other
action available to purchaser under this Agreement, at law or in
equity, and (iii) all parties acquiring any interest in a Member's
Interest hereunder shall acquire such Interest subject to the
purchase provisions of this Agreement.
(f) Subject to Section 9.14, the rights and remedies of the Members
hereunder shall not be mutually exclusive, i.e., the exercise of
one or more of the provisions of this Section 9.7 shall not
preclude the exercise of any other provisions hereof or any other
remedy at law or in equity, cumulatively. Each of the Members
confirms that damages at law will be an inadequate remedy for a
breach or threatened breach of this Agreement and agrees that, in
the event of a breach or threatened breach of any provision
hereof, the respective rights and obligations hereunder shall be
enforceable by specific performance, injunction or other equitable
remedy, but nothing herein contained is intended to, nor shall it,
limit or affect any rights at law or by statute or otherwise of
any Member as against any other Member for a breach or threatened
breach of any provision of this Agreement, it being the intention
of this Section 9.7 to make clear the agreement of the Members
that the respective rights and obligations of the Members
hereunder shall be enforceable in equity as at law or otherwise.
9.8 Bankruptcy . Upon the occurrence of an event of bankruptcy as described
in Section 18-304 of the Delaware Act of a Member (the "Bankrupt
Member"), the other Member shall have a right within the later of 90
days of such other Member's receipt of written notice from the Bankrupt
Member of the occurrence of the bankruptcy or 30 days following the
lifting of any automatic stay imposed in connection with such bankruptcy
to (a) purchase all, but not less than all, of the Bankrupt Member's
Interest at the Fair Market Value Of The Interest for cash at the
closing, (b) invoke the Buy/Sell Procedure or, (c) dissolve the Company
pursuant to Section 10.1. In addition, (i) the Company hereby agrees
that the non-Bankrupt Member shall, within the later of 90 days of
receipt by such Member of written notice from the Bankrupt Member of the
occurrence of its bankruptcy or 30 days following the lifting of any
automatic stay imposed in connection with such bankruptcy, have the
right to purchase the assets of the Company at the fair market value of
such assets determined on a going concern basis as of the date of such
determination in accordance with the procedures for the valuation of the
Fair Market Value of the Interest set forth in Article XIII, and
(ii) promptly following the sale of such assets, the Company shall be
dissolved as provided for in Article X. The Bankrupt Member shall give
written notice of the occurrence of the bankruptcy of such Member to the
Company and the other Members as soon as reasonably possible following
such bankruptcy.
9.9 Change of Ownership of a Member . In the event of the Change of
Ownership of a Member (the "Acquired Member") without the prior written
consent of the other Member, the other Member shall have a right within
the earlier of 90 days after (i) Members' receipt of such other Member's
receipt of written notice from the Acquired Member of the occurrence of
the Change of Ownership, or (ii) such other Member becoming aware of the
occurrence of the Change of Ownership to (a) purchase all, but not less
than all, of the Acquired Member's Interest at the Fair Market Value Of
The Interest (such purchase to occur as promptly as possible following
the delivery of written notice from the other Member of its election to
purchase the Acquired Member's Interest) on the terms provided for in
the third sentence and the fourth sentence of Section 9.7(c), (b) invoke
the Buy/Sell Procedure, (c) dissolve the Company pursuant to
Section 10.1 or (d) make no change in the ownership of the Interests.
The Acquired Member shall give written notice of the Change of Ownership
to the Company and the other Members as soon as reasonably possible
following such Change of Ownership.
9.10 Failure to Meet Business Goals . [ ******* Confidential Treatment
Requested ] .
9.11 Survival of Obligations . Dissolution of the Company and any
termination of the Associated Agreements for any cause shall not release
any party from any liability which at the time of Dissolution or
termination has already accrued to any Member, nor affect in any way the
survival of the rights, duties, and obligations of any party provided
for in Article VIII of this Agreement.
9.12 Substituted Members . Any transferee acquiring the Interest of a Member
as permitted under this Article IX shall be deemed admitted as a
substituted Member with respect to the Interest transferred concurrently
with the effectiveness of the Transfer (provided that such transferee,
unless already a Member, shall, as a condition to such admission,
execute a counterpart of this Agreement, agreeing thereby to be bound by
all of the terms and conditions hereof), and such substituted Member
shall be entitled to all of the rights and benefits under this Agreement
of the transferor of such Interest. No purported Transfer of any
Interest, or any portion thereof or interest therein, in violation of
the terms of this Agreement (including any Transfer occurring by
operation of law) shall vest the purported transferee with any rights,
powers, or privileges hereunder, and no such purported transferee shall
be deemed for any purposes as a Member hereunder or have any right to
vote or consent with respect to Company matters, to inspect Company
records, to maintain derivative proceedings, to maintain any action for
an accounting, or to exercise any other rights of a Member hereunder or
under the Delaware Act.
9.13 Additional Members . Additional Members may be admitted to the Company
only with the approval of the Members pursuant to Section 6.2(i). The
Capital Contribution and the Percentage Interest of any additional
Member shall be as determined by the Members approving the admission
(and the Percentage Interest of all other Members shall be adjusted to
reflect the Percentage Interest granted to the additional Member, pro
rata based on relative Percentage Interests immediately prior to the
admission of the additional Member). Any additional Member shall
execute a counterpart of this Agreement, agreeing thereby to be bound by
all of the terms and provisions hereof; provided that prior to or
concurrently with the admission of an additional Member, the Members
shall adopt such amendments to this Agreement as they deem appropriate
to cause the provisions hereof that contemplate only two Members to be
appropriately modified to operate in the context of three or more
Members.
9.14 Exclusion of Consequential Damages . In no events shall either Member
be liable to the other Member or to the Company, or their respective
successors or assigns, for any indirect, special or consequential
damages under this Agreement or the Associated Agreements.
9.15 Ownership of Sheldahl Property . The Company and Sheldahl shall each be
deemed to own an undivided joint interest in the Sheldahl Property free
and clear of all royalty or similar obligations and free and clear of
all obligations to report to the other with respect to the use of such
intellectual property; provided that Sheldahl may, upon not less than 30
days notice to the Company, transfer its interest in the Sheldahl
Property. Such ownership rights shall be non-assessable. The Company
shall not Transfer any interest in the Sheldahl Property without the
prior consent of Sheldahl, which consent shall not be unreasonably
withheld or delayed. All intellectual property subsequently developed
by the Company or Sheldahl based on the Sheldahl Property shall be owned
by the entity developing such intellectual property free and clear of
all royalty or similar obligations and free and clear of all obligations
to report to the other with respect to use of such intellectual
property. Promptly following the execution and delivery of this
Agreement, Sheldahl shall deliver to the Company and Molex a detailed
description of the Sheldahl Property.
ARTICLE X
Dissolution
10.1 Dissolution . The Company shall be dissolved upon the earliest to occur
of the following:
(a) the withdrawal, bankruptcy, or dissolution of any Member or the
occurrence of any other event that terminates the continued
membership of any Member in the Company under the Delaware
Act, unless the business of the Company is continued by the
consent of all remaining Members within ninety (90) days
following the occurrence of any such event;
(b) all or substantially all of the Company's assets and properties have
been sold and reduced to cash;
(c) upon the mutual agreement of the Members;
(d) the Company is dissolved pursuant to the provisions of Sections 9.7, 9.8
or 9.9;
(e) the end of the Company's term; or
(f) the occurrence of any other event causing a Dissolution of the Company
under Section 18-801 of the Delaware Act.
10.2 Liquidator . Upon Dissolution, the Managers, or if there is no
remaining Manager, such person as is designated by the Members (the
remaining Managers or such person being herein referred to as the
"Liquidator") shall proceed to wind up the business and affairs of the
Company in accordance with the terms hereof and the requirements of the
Delaware Act. A reasonable amount of time shall be allowed for the
period of winding up in light of prevailing market conditions and so as
to avoid undue loss in connection with any sale of Company assets. This
Agreement shall remain in full force and effect during the period of
winding up.
10.3 Distribution Priority . Upon the dissolution of the Company
("Dissolution"), the Company assets shall be liquidated and the affairs
of the Company shall be wound up and terminated by the Liquidator. Upon
completion of such liquidation and winding up, but not later than the
end of the Company taxable year in which Dissolution occurs (or 90 days
after Dissolution, if later), and after taking into account all Capital
Account adjustments for the Company taxable year during which
Dissolution occurs, including the allocation of all profits and losses
pursuant to this Agreement, except as provided in the Development
Agreement, the assets of the Company shall be liquidated and disposed of
and distributed as follows:
(a) First, available cash shall be used to pay all debts and liabilities of
the Company and expenses of the liquidation and winding up;
if the Company lacks sufficient cash to pay such debts and
expenses, then the Managers shall sell assets sufficient to
generate adequate cash;
(b) Second, available cash shall be used to set up reserves (to be held in a
special interest-bearing account) which the Managers or the
liquidating trustee may deem reasonably necessary for any
contingent or unforeseen liabilities or obligations of the
Company; provided, however, that at the expiration of such
time as the Managers or such trustee shall deem advisable
(not to exceed two (2) years from the event which caused
Dissolution except in the cash of any litigation matter,
where the length of time such reserves are maintained shall
be determined by the Managers or the liquidating trustee in
its sole discretion), the balance of such reserves remaining
after payment of such contingent liabilities shall be
distributed in the manner hereafter set forth in this
Article X; if the Company lacks sufficient cash to establish
such reserves, then the Managers shall sell assets
sufficient to generate adequate cash;
(c) Third, to the Members in the amount of the positive balances in their
Capital Accounts; and
(d) Finally, to the Members in proportion to their then Percentage
Interests; provided, however, that if a Dissolution occurs
prior to June 30, 2000 then in proportion to the capital
contributions actually made by each Member pursuant to
Section 4.1.
10.4 Purchase of Assets . Each Member shall have a first right to purchase
the assets of the Company upon Dissolution. If only one Member wishes
to exercise such right of purchase with respect to particular assets,
then the terms of purchase shall be as agreed upon between the Members,
provided that if mutually acceptable terms cannot be so agreed upon, the
assets shall be sold by the Liquidator on the best available terms and
either Member may submit a bid. If both Members wish to purchase all,
or the same part, of the Company's assets, and no agreement can be
reached between the Members as to which is to purchase the assets, each
Member may submit a bid for the assets to the Liquidator, and the
Liquidator shall approve the sale of the assets to the Member offering
the higher cash price. In lieu of the foregoing purchase procedures,
assets of the Company remaining after satisfaction of the claims of
third party creditors may be distributed in kind to the Members in such
manner as may be agreed upon among all Members.
10.5 Associated Agreements . Upon Dissolution, the Associated Agreements
shall terminate or be extended in accordance with their respective
terms.
10.6 Intellectual Property . Upon Dissolution, and notwithstanding Section
10.4, the Members shall be deemed to own jointly all intellectual
property owned by the Company and all intellectual property subsequently
developed by either Member based on the proprietary rights of the
Company, free and clear of all royalty or similar obligations and free
and clear of all obligations to report to the other with respect to such
Members use of such intellectual property. Such ownership rights shall
be non-assessable and freely transferrable; provided, however, that
neither Member (nor any transferee or licensee of either Member) may
transfer or license any interest in such intellectual property to a
competitor of the other Member. The value of an undivided interest in
the intellectual property to be distributed to each of the Members
pursuant to this Section 10.6 shall be equal to one-half of the fair
market value of such intellectual property established by agreement of
the Members and, absent agreement, the fair market value thereof
determined by the arbitrators pursuant to Article XI of this Agreement.
Each Member shall cooperate with the other Member in seeking patents
with respect to such intellectual property or in enforcing any patent
issued with respect to such intellectual property, in each case at the
expense of the Member requesting the cooperation.
10.7 Validity of Agreement . Notwithstanding any Dissolution of the Company,
prior to such time as the Company shall be terminated as provided
herein, the Company's business and the affairs of the Members, as such,
shall continue to be governed by this Agreement.
10.8 No Recourse . If distributions are insufficient to return to any Member
the full amount of such Member's Capital Contributions, such Member
shall have no recourse against any other Member or any Manager. No
Member shall have any obligation to restore, or otherwise pay to the
Company, any other Member, or any third party, the amount of any deficit
balance in such Member's Capital Account upon Dissolution and
liquidation. Following the completion of the winding up of the affairs
of the Company and the distribution of its assets, the Company shall be
deemed terminated and the Liquidator shall file a certificate of
cancellation in the Office of the Secretary of State of the State of
Delaware as required by Section 18-203 of the Delaware Act. The
provisions of Section 6.10, Section 6.11, Section 6.15, Section 7.2,
Article VIII (relating to confidentiality following Dissolution),
Section 9.1, Section 9.11, Section 9.14, Section 9.15, Section 10.5,
Section 10.6, Section 10.7, this Section 10.8, Section 10.10, Article
XI, Section 15.1 (other than (a) of Section 15.1), Section 15.3 and
Article XVI shall survive termination of the Company and shall continue
to apply to any Member ceasing to be a Member for any reason.
10.9 Final Accounting . The Managers or the liquidating trustee shall
provide to each Member a financial statement setting forth the assets
and liabilities of the Company as of the date of liquidation and all
profits and losses realized by the Company upon completion of the
liquidation of Company assets. Upon compliance by the Managers or the
liquidating trustee, as applicable, with the foregoing distribution
plan, the Members shall cease to be such.
10.10 Use of Company's Name . Upon Dissolution, winding up and termination of
the Company and its business, no Member shall use the name of any other
Member in the conduct of its separate business without the prior consent
of such other Member, nor shall any Member use the Company name in the
conduct of its separate business without the approval of the other
Member.
ARTICLE XI
Dispute Resolution
11.1 Invoking Procedure . In the event of a dispute between the Members
arising out of or related to this Agreement, either Member may invoke
the procedures specified in this Article by giving written notice to the
other Member. Such written notice will describe briefly the nature of
the dispute and shall identify an individual with authority to settle
the dispute on behalf of that Member. The Member receiving such notice
shall have ten (10) days within which to designate an individual with
authority to settle the dispute on its behalf and to notify the other
Member of its designation (the individuals so designated shall be
referred to as the "Authorized Individuals").
11.2 Investigation . The Authorized Individuals shall make whatever
investigation each deems appropriate and promptly thereafter, but no
later than thirty (30) days from the date of the original notice
invoking these procedures, shall commence discussions concerning
resolution of the dispute. If the dispute has not been resolved within
sixty (60) days from the date of the original notice invoking these
procedures, the Members shall submit the matter to ADR in accordance
with the following procedure.
11.3 Neutral . The Members shall have ten (10) days from the expiration of
the sixty (60) day period referred to in Section 11.2 or the agreement
of the Members to submit the matter to ADR, whichever occurs first,
within which to agree upon a mutually acceptable person not affiliated
with either party ("Neutral"). If no Neutral has been selected within
that time period, the Members agree jointly to request the American
Arbitration Association, or other mutually agreed-upon organization, to
supply within ten (10) days a list of ten (10) potential Neutrals with
qualifications as specified by the Members in the joint request. Within
seven (7) days of receipt of the list, the Members shall rank the
proposed candidates independently, exchange rankings and select as the
Neutral the individual who receives the highest combined ranking who is
available to serve.
11.4 Schedule . In consultation with the Neutral, the Members shall
designate a mutually convenient time and place for the ADR, and unless
circumstances require otherwise, such time shall be not later than
forty-five (45) days after the selection of the Neutral.
11.5 Discovery . In the event one or both Members have substantial need for
information in the possession of the other Member or a need to take
certain limited depositions and/or production of principal documents in
order to prepare for the ADR, the Members shall attempt in good faith to
agree on a plan for the expeditious exchange of such information.
Should they fail to reach agreement, either Member may request a meeting
with the Neutral who shall assist them in reaching an accommodation.
11.6 Written Submission . One week prior to the first scheduled session of
the ADR, each Member shall deliver to the Neutral and to the other
Member a written summary of its views on the matter in dispute. The
summary shall be no longer than twenty double-spaced pages unless the
Members agree otherwise.
11.7 Representatives . In the ADR, each Member shall be represented by the
Authorized Individual and by counsel. In addition, each Member may
bring additional persons as necessary to respond to questions or
contribute information as needed. The number of such additional persons
to be allowed shall be mutually agreed by the Members with the
assistance of the Neutral, if necessary.
11.8 Structure . The Neutral is authorized to conduct joint and separate
meetings with the Members and to help the Members structure whatever
form of presentation of the matter in dispute is most likely to
facilitate resolution. Notwithstanding the form of the presentation, it
is the intent of the Members to provide an opportunity for their
Authorized Individual, with or without the assistance of counsel, and
with the assistance of the Neutral, to negotiate a resolution of the
matters in dispute. In the event the Neutral holds separate private
caucuses with either Member, he or she shall keep confidential all
information learned in such private caucuses unless specifically
authorized to make disclosure of the information to the other Member.
There shall be no stenographic, visual, or audio record made of the ADR.
11.9 Mandatory . The Members agree to participate in the ADR to its
conclusion as designated by the Neutral and not to terminate
negotiations concerning resolution of the matters in dispute until at
least two (2) weeks thereafter. Each Member agrees not to commence a
lawsuit or seek other remedies prior to the conclusion of the two-week
post-ADR negotiation period, provided that either Member may commence
litigation on any date after which the commencement of litigation could
be barred by an applicable statute of limitations or in order to request
an injunction to prevent irreparable harm. In such event, the Members
agree (except as prohibited by court order) to continue to participate
in the ADR to its conclusion. Following the expiration of the two-week
post-ADR negotiation period, either party may pursue any remedy
available to it at law or equity and the determination of the Neutral
shall not be binding on either Member.
11.10 Fees . The fees of, and authorized costs incurred by, the Neutral shall
be advanced by the Company and shared equally by the Members who shall
reimburse the Company. The Neutral shall be disqualified as a witness,
consultant, expert, or counsel for any Member with respect to the
matters in dispute and any related matters.
11.11 Later Proceedings . The ADR is a compromise negotiation for purposes of
the Federal Rules of Evidence and state rules of evidence. The entire
procedure is confidential. All conduct, statements, promises, offers,
views, and opinions, whether oral or written, made in the course of the
ADR by any of the Members, their agents, employees, representatives, or
other invitees to the ADR and by the Neutral, who is the parties' joint
agent for purposes of these compromise negotiations, are confidential
and shall, in addition and where appropriate, be deemed to be work
product and privileged. Such conduct, statements, promises, offers,
views, and opinions shall not be discoverable or admissible for any
purposes, including impeachment, in any litigation or other proceeding
involving the Members and shall not be disclosed to anyone not an agent,
employee, expert, witness, or representative for any of the Members.
Evidence otherwise discoverable or admissible is not excluded from
discovery or admission as a result of its use in the ADR.
ARTICLE XII
Financial Matters
12.1 Books and Records . The books and records of the Company shall be
maintained on an accrual basis in accordance with generally accepted
accounting principles. These and all other records of the Company shall
be maintained at the principal office of the Company (initially at the
facilities of Molex in Lisle, Illinois or at such other locations
approved by the Members) and shall be available for examination by the
Members as provided in the Bylaws.
12.2 Financial Reports . The Managers shall cause to be prepared (i) as of
the end of each calendar month and fiscal year of the Company, (ii) as
of the date of Dissolution of the Company, and (iii) as of such
additional dates as the Managers may direct, in accordance with
generally accepted accounting principles consistently applied,
appropriate financial statements showing the assets, liabilities,
capital, profits, expenses, losses, and recovered and unrecovered
capital expenditures of the Company and a statement showing all amounts
credited and debited to each Member's Capital Account and of each
Member's distributive share, for federal income tax purposes, of income,
gains, deductions, losses, and credits (or items thereof) arising out of
Company operations, as required by law, and a further statement
reconciling any difference between the Member's respective Capital
Accounts as shown in such financial statements and their Capital
Accounts as determined in accordance with the provisions of this
Agreement. A copy of each such monthly report shall be delivered to
each Member on or before the 15th day of the next following month and a
copy of the annual report shall be delivered to each Member within 90
days after the last day of the Company's fiscal year.
12.3 Fiscal Year . The fiscal year of the Company shall end on June 30.
12.4 Company Funds . Pending application or distribution, the funds of the
Company shall be deposited in such bank accounts, or invested in such
interest-bearing or noninterest-bearing investments, including, without
limitation, federally insured checking and savings accounts,
certificates of deposit, government issued or backed securities, or
mutual funds investing primarily in such types of securities, as shall
be designated by the Managers. Such funds shall not be commingled with
the funds of any other person. Withdrawals therefrom shall be made upon
such signatures as the Managers may designate.
12.5 Tax Matters Partner . The Managers shall cause all tax returns for the
Company to be returned and timely filed with the appropriate
authorities. The Managers shall make their bet efforts to provide to
the Members estimates of such information as shall be necessary for the
preparation by the Members of their Federal income tax returns within 60
days after the end of the fiscal year, and shall provide such
information in final form within 90 days after the end of the fiscal
year. The Company and each Member hereby designates Molex as the "tax
matters partner" for purposes of I.R.C. 6231 and the Regulations
promulgated thereunder. Copies of all notices received by the tax
matters partner shall promptly be sent to the Company and the other
Member. All returns, filings, elections, agreements and other documents
or correspondence to or with any taxing authority on behalf of the
Company, including in connection with an examination or audit, shall be
furnished to the Members for review and approval, which approval shall
not be unreasonably withheld, at least 10 days (30 days in the case of a
federal income tax return) prior to the date on which such matters are
required to be filed or otherwise submitted.
ARTICLE XIII
Appraisal Procedure
13.1 Selection of Appraisers . If the Members are unable to agree upon the
Fair Market Value Of The Interest to be sold pursuant to this Agreement
at the Fair Market Value Of The Interest, then the purchasing Member
("Purchaser") and the Member whose Interest is being sold ("Seller"),
within 20 days after the giving of the Buy/Sell Offer or other notice of
the exercise of purchase rights at fair market value provided for
pursuant to this Agreement, shall select a disinterested appraiser. If
the Seller and the Purchaser are unable to agree upon the selection of
an appraiser, then each shall select an independent appraiser.
13.2 Appraisal Procedure . Within 20 days of the appointment of the
appraiser(s), Seller, Purchaser and the appraiser(s) shall meet at a
location mutually agreed to by the parties, and in a proceeding held in
accordance with the rules of the Commercial American Arbitration
Association each of Seller and Purchaser shall submit to the
appraiser(s) its proposal for the Fair Market Value Of The Interest(s)
to be sold, and shall be allowed to present such evidence and testimony
in support thereof as is allowed under the rules of the Commercial
American Arbitration Association. The appraiser(s) shall be instructed
that, within 7 days after the date on which the Seller, Purchaser and
the appraiser(s) conclude such meeting, the appraiser(s) shall provide
to each Member a written statement setting out the Fair Market Value Of
The Interest and explaining in detail the basis of the appraiser(s)
calculation. If the Members shall have selected a single appraiser, the
Fair Market Value Of The Interest shall be the amount determined by such
appraiser. If the Members shall have selected two appraisers, and if
the Fair Market Value Of The Interest determined by the higher of the
two appraisers is less than 120% of the Fair Market Value Of The
Interest determined by the lesser of the two appraisers, then the Fair
Market Value Of The Interest shall be the average of the amount
determined by the two appraisers. If the Fair Market Value Of The
Interest determined by the higher of the appraisers is equal to or
greater than 120% of the value determined by the lesser of the two
appraisers, then the Seller and Purchaser shall meet again and attempt
to agree upon the Fair Market Value Of The Interest. If the Seller and
the Purchaser are not able to agree on the Fair Market Value Of The
Interest within 7 days of receipt of the second of the two appraisals,
they shall instruct the two appraisers to select a third appraiser.
Within 7 days of the appointment of the third appraiser, the appraisers
shall meet, and in a proceeding held in accordance with the rules of the
Commercial American Arbitration Association each of the first two
appraisers shall submit to the third appraiser its appraisal of the Fair
Market Value Of The Interest(s). The first two appraisers, the Seller,
and the Purchaser shall provide to the third appraiser such information
as the third appraiser reasonably requests. The third appraiser shall
be instructed that within 7 days after the date on which the appraisers
conclude such meeting, the third appraiser shall provide to each Member
a written statement setting out the Fair Market Value Of The Interest.
In such case the Fair Market Value Of The Interest shall be the average
of the values determined by the two closest appraisers. The Fair Market
Value Of The Interest selected by the appraiser(s) shall be binding upon
Seller and Purchaser, and shall be promptly communicated by Notice to
each of Seller and Purchaser. The cost of the Appraisal Procedure shall
be an expense of the Company.
13.3 Appraisal Considerations . Fair Market Value Of The Interest of a
Member shall in all cases be equal to the product of (i) the Percentage
Interest of such Member and (ii) the fair market value of the Company.
In determining the fair market value of the Company, the appraiser(s)
may, to the extent the appraiser(s) deem(s) it appropriate, consider the
cash price which a sophisticated purchaser under no compulsion to
purchase would pay on the effective date of the appraisal for the
Company, net of all financing then encumbering the Company's assets. A
sophisticated purchaser shall be one who would take into account the
nature, extent, maturity date and other terms of the liabilities of the
Company, whether fixed or contingent, including the favorable or
unfavorable nature of the financing then encumbering the company's
assets, and the prospects of the Company. The Fair Market Value Of The
Interest shall be determined taking into account any liens, security
interests, charges or encumbrances to which Purchaser will take the
Interest subject but without taking into account discounts for the lack
of the marketability of the Interests or minority discount.
13.4 Qualifications of Appraisers . All appraisers selected hereunder shall
not be affiliated with any of the Members and shall have at least 10
years of experience valuing businesses which are similar in nature to
the Company.
ARTICLE XIV
Buy/Sell Procedure
14.1 Offering Notice . Where the purchase price for the Interest(s) of any
Member or Members being sold pursuant to this Agreement is to be
determined pursuant to the Buy/Sell Procedure, the Member with a right
to purchase (the "Invoking Member") may, in its sole discretion, give
Notice (in any case a "Buy/Sell Notice") to the other Member (the
"Responding Member") of its intent to rely on this Article XIV and to
invoke the Buy/Sell Procedure.
14.2 Buy/Sell Offer . The Buy/Sell Notice shall contain an offer to purchase
all, but not less than all, of the Interest of the Responding Member
(the "Buy/Sell Offer") at the Fair Market Value of such Interest
determined in accordance with Article XIII. The Buy/Sell Offer must be
made in the form of an all cash, fully financed, non-contingent, binding
offer to purchase.
14.3 Buy/Sell Procedure . The Invoking Member may, in its sole discretion,
for a period of 15 days following determination of the Fair Market Value
of the Responding Member's Interest pursuant to Article XIII, withdraw
the Buy/Sell Offer. If the Invoking Member does not withdraw the
Buy/Sell Offer within such 15-day period, then the Responding Member
must, within 45 days thereafter, give to the Invoking Member a written
notice of election to either sell to the Invoking Member its Interest at
the purchase price and on the terms and conditions set forth in the
Buy/Sell Offer, or to purchase from the Invoking Member the Interest of
the Invoking Member at the Fair Market Value thereof and on the other
terms specified in the Buy/Sell Offer.
14.4 Closing . The closing of any sale of an Interest in the Company
pursuant to this Article XIV ("Buy/Sell Closing") shall be held at the
principal offices of the Company, unless otherwise mutually agreed upon,
on a mutually acceptable date not more than 120 days after the date of
the determination of the Buy/Sell Price. The purchase price payable for
a Member's Interest shall be paid at the Buy/Sell Closing by wire
transfer at the direction of the selling Member.
14.5 Closing Adjustments . The price to be paid for the selling Member's
Interest shall be adjusted as follows: there shall be determined, as of
the date of Buy/Sell Closing, (a) the aggregate amount of all additional
capital contributions made by the selling Member, if any, between the
date upon which the price for such Interest was established and the date
of Buy/Sell Closing, and (b) the aggregate amount of all distributions,
whether of capital or otherwise, if any, made to the selling Member
during such period. If the amount determined under (a) exceeds the
amount determined under (b), the Selling Member shall receive a credit
against the purchase price in an amount equal to such excess; if the
amount determined under (b) exceeds the amount determined under (a), the
purchaser shall receive a credit against the purchase price in an amount
equal to such excess. Any Member transferring its Interest shall
transfer such Interest free and clear of all liens, encumbrances or
interests of any third party and shall execute or cause to be executed
any and all documents required to fully transfer such Interest to the
acquiring Member, including, but not limited to, any documents necessary
to evidence such transfer and all documents required to release any
interest of any other party who may claim an interest in such Member's
Interest. Any existing monetary default of the selling Member under
this Agreement shall be cured out of the proceeds from such sale at
Buy/Sell Closing. Following the date of Buy/Sell Closing, the selling
Member shall have no further rights to any distributions of cash or
other company assets or distributions attributable to any period or
event after the date of Buy/Sell Closing, nor any allocations of profits
or losses for any such period, and all such rights shall vest in the
purchasing Member.
14.6 Conducting of Company Business Prior to Closing . During the period
between the date the Buy/Sell Notice is delivered by the Invoking Member
and the date of the Buy/Sell Closing, and except as otherwise provided
in this Agreement, the Managers and the Members will continue to operate
the Company in accordance with the terms of this Agreement.
ARTICLE XV
Sale of Components; Use of Tooling Capacity;
Development of Sheldahl's Intellectual Property
15.1 Sale of Components . Each of Molex and Sheldahl, shall have the right to
sell the same types of components developed by it for sale to the
Company to any other third party; provided that (a) so long as it is a
Member of the Company, each Member shall ensure that the [ *******
Confidential Treatment Requested ] and (b) with respect to any sales
to be made by Sheldahl, i) any funds loaned by Molex to Sheldahl
pursuant to the terms of this Agreement or any Associated Agreement and
all accrued interest therein have been paid by Sheldahl to Molex (or
shall have been forgiven by Molex) and an amount equal to the Sheldahl
Development Costs shall have been paid to Molex from Sheldahl (or
otherwise excused or relieved by the terms of this Agreement or any
Associated Agreement), (ii) such sales are made after [ *******
Confidential Treatment Requested ] or (iii) such sales comply with
Section 6 of the Development Agreement. The provisions of subsection
(b) of the foregoing sentence shall only apply to components developed,
or produced using equipment funded, from the expenditure of Sheldahl
Development Costs and shall not apply to components Sheldahl sells as of
the date of this Agreement.
15.2 Sheldahl Development Loans . If requested by Sheldahl, Molex will
consider, at its sole discretion and subject to reasonable terms and
conditions, financing Sheldahl's independent development of the tooling
of its flexible circuit product for a period of [ ******* Confidential
Treatment Requested ] at LIBOR plus 1% with Molex holding Sheldahl's
interest in the Company as collateral for such loan. If Molex does
finance a portion of Sheldahl's independent development of its flexible
circuit product in an amount equal to [ ******* Confidential Treatment
Requested ] or more, then Sheldahl hereby grants the Company a license
to tool and produce the [ ******* Confidential Treatment Requested ]
for sale only in the Company's assemblies of Products (as defined as of
the date of such license) whether or not Sheldahl has experienced a
Change of Ownership, and the provisions of the Technology License
Agreement between the Company and Sheldahl shall be amended by the
Company and Sheldahl to provide for such license. A royalty consistent
with the industry norm and as agreed by the Members and the Company will
be paid by the Company to Sheldahl.
15.3 Audit Rights . Each Member may, upon reasonable notice to the other
Member, audit the books and records of the other Member of the extent
such books and records relate to the performance of such other Member's
obligations pursuant to Section 15.1(a). Each Member shall maintain its
books and records in sufficient detail to permit the verification of
such Member's obligation pursuant to Section 15.1(a). Any such audit
shall be conducted during regular business hours at the facilities of
Member being audited and shall not unreasonably interfere with such
Member's business activities. Such audit shall be conducted at the
expense of the Member conducting the audit unless such audit shall
reveal the other Member has failed to comply with Section 15.1(a), in
which event such other Member shall pay for all costs and expenses
associated with the audit. Audits shall be conducted not more than once
during any six month period.
15.4 Development Schedules . Not less than 45 days following the date of
this Agreement, each Member shall deliver to the other, for approval, a
detailed schedule, including the estimated delivery dates and a
description of components, for the development by such Member of
components to be sold to the Company.
ARTICLE XVI
Miscellaneous
16.1 Notices . All notices under this Agreement shall be in writing and
shall be deemed properly given hereunder when (i) delivered by personal
service, (ii) delivered by courier service, (iii) telecopied and confirmed
immediately in writing by a copy mailed by registered or certified mail,
postage prepaid, return receipt requested, or (iv) when received, if sent by
certified or registered mail, postage prepaid, return receipt requested, to
the Members at the addresses hereinafter set forth and to the Company at its
principal place of business. The addresses for notices are as follows:
If to Molex, to:
Molex Incorporated
2222 Wellington Ct.
Lisle, Illinois 60532
Attn: Martin Slark
Facsimile: (630) 969-1352
Copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60603
Attn: Michael Froy
Facsimile: (312) 876-7934
If to Sheldahl, to:
Sheldahl, Inc.
1150 Sheldahl Road
Northfield, Minnesota 55057
Attn: Edward Lundstrom
Facsimile: (507) 663-8234
Copy to:
Lindquist Vennum P.L.L.P.
4200 IDS Center
Minneapolis, Minnesota 55402
Attn: Charles Moorse
Facsimile: (612) 371-3207
Any party may change its address for the purpose of this Section 16.1 by
notice to the other given in the manner set forth above.
16.2 Governing Law . This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware in a like manner as an
agreement made and wholly to be performed in the State of Delaware.
16.3 Headings . The Article and Section headings of this Agreement are for
convenience only, do not form a part of this Agreement, and shall not in
any way affect the interpretation hereof.
16.4 Construction and Amendment . No oral explanation of or oral information
relating to this Agreement offered by either party hereto shall alter
the meaning or interpretation of this Agreement. Except as otherwise
provided in Section 4.1(c), no amendment of the terms of this Agreement
or of the Bylaws shall be binding on either party hereto unless reduced
to writing and duly executed by each of the Members.
16.5 Successors and Assigns . Subject to the restrictions on Transfer set
forth in Article IX, this Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns.
16.6 Counterparts . This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same agreement.
16.7 Entire Agreement . The terms and conditions contained herein and in the
Associated Agreements constitute the entire agreement between the
Members concerning the subject matter hereof, and shall supersede all
previous communications, either oral or written, between the parties
hereto, and no agreement or understanding varying or extending this
Agreement shall be binding upon either Member unless in writing, signed
by a duly authorized officer or representative of each Member.
16.8 Validity . In the event that any provision of this Agreement shall be
held to be invalid or unenforceable, the same shall not affect in any
respect whatsoever the validity or enforceability of the remainder of
this Agreement.
16.9 Waiver . No consent or waiver, expressed or implied, by a Member to or
of any breach or default by the other Member in the performance by such
other Member of its obligations hereunder shall be deemed or construed
to be a consent or waiver to or of any other breach or default in the
performance by such other Member of the same or any other obligations of
such other Member hereunder. Failure on the part of a Member to
complain of any act or failure to act on the part of any other Member or
to declare such other Member in default, irrespective of how long such
failure continues, shall not constitute a waiver by such Member of its
rights hereunder unless such default is cured prior to the date upon
which such default becomes an Event of Default. The giving of approval
by a Member in any one instance shall not limit or waive the necessity
to obtain such Member's approval in any future instance.
16.10 Terminology and Construction . All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender,
shall include all other genders; and the singular shall include the
plural and vice versa. Titles of Articles, Sections, and Exhibits are
for convenience only, and neither limit nor amplify the provisions of
this Agreement. Except as specifically provided, references to
Articles, Sections, and Exhibits in this Agreement refer to Articles and
Sections of, and Exhibits to, this Agreement. The use herein of the
word "including," when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or
to similar items or matters, whether or not non-limiting language (such
as "without limitation," or "but not limited to," or words of similar
import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
The Members agree that the terms and conditions of this Agreement and
the Related Agreements are the result of negotiations between them and
that neither this Agreement nor any of the Related Agreements shall be
construed in favor of or against either Member by reason of the extent
to which such Member of its professional advisors participated in the
preparation of such agreements.
16.11 No Third-Party Rights . Except for the indemnification obligations of
the Company provided for in Section 6.10, this Agreement shall not
(directly, indirectly, contingently or otherwise) confer or be construed
as conferring any rights or benefits on any person that is not named a
Member or a permitted transferee of a Member hereunder.
16.12 Expenses . Each Member shall be responsible for its own legal,
accounting, and other expenses incurred in connection with the
transactions contemplated by this Agreement and the Associated
Agreements.
16.13 Publicity . Each Member shall submit to the other Member all
advertising, written sales promotions, press releases and other
publicity matters relating to this Agreement or the Associated
Agreements which mention the name of the Company or the other Member or
reference this Agreement or any of the transactions contemplated by this
Agreement and shall not publish or use such advertising, written sales
promotion, press releases or other publicity matters without the prior
written consent of the other Member. Notwithstanding the foregoing
sentence, in the event either Member is required to issue a press
release relating to this Agreement or the Associated Agreements or any
of the transactions contemplated by this Agreement by the laws or
regulations of any governmental authority, agency or self-regulatory
agency, such Member shall (a) give notice and a copy of the proposed
press release to the other Member as far in advance as reasonably
possible and (b) make any changes to such press release reasonably
requested by the other Member.
16.14 Waiver of Jury Trial . TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS
SEPARATELY BARGAINED-FOR CONSIDERATION, EACH MEMBER AND THE COMPANY
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY ASSOCIATED AGREEMENT, THE OBLIGATIONS OR THE PARTY'S CONDUCT IN
RESPECT OF ANY OF THE FOREGOING.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
set forth above.
MEMBERS
MOLEX INCORPORATED
By:
Title:
SHELDAHL, INC.
By:
Title:
<PAGE>
EXHIBIT 1A
Associated Agreements
1. Technology License Agreement. Promptly following the execution
and delivery of this Agreement, Molex and the Company will enter into the
technology license agreement attached hereto as Exhibit 1A-1 and Sheldahl and
the Company will enter into the technology license agreement attached hereto
as Exhibit 1A-2 (collectively, the "Technology License Agreements").
2. Supply Agreements. Promptly following the execution and delivery
of this Agreement, Molex and the Company shall enter into the supply agreement
attached hereto as Exhibit 1A-3 and Sheldahl and the Company shall enter into
the supply agreement in substantially the form attached hereto as Exhibit 1A-4
(collectively, the "Supply Agreements").
3. Development Agreement. Promptly following the execution and
delivery of this Agreement, Molex, Sheldahl and the Company shall enter into
the agreement for the reimbursement of the Sheldahl Development Cost in
substantially the form attached as Exhibit 1A-5 (the "Development Agreement").
4. Support Agreements. Each Member agrees to make its
employees and resources reasonably available to the Company (or
cause its Related Companies to make their employees and resources
reasonably available) pursuant to contracts on terms and
conditions agreed to by the Company and Molex or Sheldahl (or
their Related Companies), as appropriate. As soon as reasonably
possible following the execution and delivery of this Agreement
(but in any event prior to either Member providing services to the
Company), each Member shall enter into agreements with the Company
pursuant to which each agrees to provide managerial, engineering,
marketing and administrative support services to the Company as
agreed to by the Company and such Member (collectively, the
"Support Agreements"), including operations prior to transition to
Detroit facility, the costs of which shall be reimbursed by the
Company. Such agreements shall specify the reporting structure of
the staff provided to the Company pursuant to such agreements.
The Support Agreements shall provide that, except for the
Managers, employees of Molex or Sheldahl (or their Related
Companies) providing services to the Company shall be at the
expense of the Company with Molex or Sheldahl (or their Related
Companies), as appropriate, being reimbursed for the salary and
benefits costs of such employees in such amounts as they shall
mutually agree; provided, however, that each Member shall be
responsible for the relocation of its employees in connection with
such employees providing services to the Company or in connection
with such Employees becoming employees of the Company.
<PAGE>
EXHIBIT 1A-1
Molex Technology License
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement (the Agreement) is made as of this ___
day of July, 1998, by and between Molex Incorporated, a Delaware corporation
having its principal place of business at 2222 Wellington Court, Lisle,
Illinois 60532 (Molex), and Modular Interconnect Systems, L.L.C., a Delaware
limited liability company, having its principal place of business at 400 Hulet
Drive, Bloomfield Hills, Michigan 48302 (Licensee).
RECITALS:
A. Molex and Sheldahl, Inc., a Minnesota corporation, having its
principal place of business at 1150 Sheldahl Road, Northfield, Minnesota 55057
(Sheldahl), have entered into a Limited Liability Company Agreement of even
date herewith (the L.L.C. Agreement) for the purpose of forming the Licensee;
B. Molex has developed or intends on developing certain patents and
copyrights and/or confidential information, know-how and trade secrets all
relating to [ ******* Confidential Treatment Requested ] connectors
[******* Confidential Treatment Requested ] , including, without limitation,
engineering and technical data, manufacturing techniques, designs, skills,
methods, procedures, tools, templates, and other such information
(collectively, the Molex Intellectual Property);
C. Sheldahl has developed or intends on developing certain patents
and copyrights and/or confidential information, know-how and trade secrets all
relating to [ ******* Confidential Treatment Requested ] (as defined in
the Technology License Agreement dated the date hereof between Sheldahl and
Licensee), including, without limitation, engineering and technical data,
manufacturing techniques, designs, skills, methods, procedures, tools,
templates, and other such information (collectively, the Sheldahl Intellectual
Property);
D. Molex and Sheldahl have each agreed to enter into a Technology
License Agreement with Licensee to grant a non-exclusive license to certain of
each party's respective intellectual property for the purpose of developing
and selling modular interconnect systems, utilizing [******* Confidential
Treatment Requested ] circuits developed by Sheldahl and [ *******
Confidential Treatment Requested ] connections developed by Molex, as an
alternative to conventional automotive wiring harnesses and flex circuit
assemblies;
E. Molex and Sheldahl have each agreed that the Technology License
Agreements to be entered into by Molex and Sheldahl respectively shall not
take effect unless and until there is a Change of Ownership (as defined in the
L.L.C. Agreement) and the party not experiencing a Change of Ownership
purchases the other party's membership interest in Licensee pursuant to
Section 9.9 of the L.L.C. Agreement; and
F. Licensee desires to acquire a non-exclusive license of the Molex
Intellectual Property on the terms and conditions hereinafter set forth; and
G. Molex is willing to grant such a license under the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises and
valuable consideration set forth herein, the parties hereby agree as follows:
1. Grant of License. During the Term set forth in paragraph 2
hereof, Molex hereby grants to Licensee the non-sublicensable,
non-transferable, non-exclusive right to tool and produce Molex [ *******
Confidential Treatment Requested ] connectors [ ******* Confidential
Treatment Requested ] using Molex Intellectual Property existing on the
commencement of the Term (as defined in Section 2) for the sole and exclusive
purpose of incorporating Molex [ ******* Confidential Treatment Requested ]
connectors using Molex Intellectual Property into products for sale only in
Licensee's assemblies of products encompassed by the definition of Products in
the L.L.C. Agreement on the date of the Change of Ownership of Molex which
results in the commencement of the Term as provided for in Section 2 of this
Agreement (the Permitted Products). All rights of Molex not expressly granted
to Licensee herein are reserved to Molex, including, without limitation, any
patents on [ ******* Confidential Treatment Requested ] connectors
developed by Molex which are not used in assemblies of Permitted Products
produced by Licensee.
2. Term. The term of this license (the Term) shall commence as of
the date on which Sheldahl purchases Molex's membership interest in Licensee
pursuant to Section 9.9 of the L.L.C. Agreement following a Change of Control
of Molex and shall continue in full force and effect during the remaining term
of the L.L.C. Agreement. The Term shall terminate automatically when the
L.L.C. Agreement terminates.
3. Non-exclusivity. Molex shall be free to practice the inventions
and to make, use and sell products covered by the Molex Intellectual Property.
4. Consideration and royalties. Molex grants this license in
consideration of the execution of the L.L.C. Agreement and the execution of a
comparable Technology License Agreement between Sheldahl and Licensee. The
license granted herein is royalty-free.
5. Improvements. Any improvements, further discoveries, inventions,
technology, know-how, enhancements, modifications or other developments
developed by Licensee and relating to the Molex Intellectual Property, as that
term is defined in this Agreement (Improvements), including, without
limitation, patents on [ ******* Confidential Treatment Requested ]
connectors, whether or not patented or patentable in any country, shall be and
remain the property of Molex.
6. Warranties.
(a) Molex represents, warrants and covenants that:(i) it has full legal
power and authority to enter into this Agreement and to fully perform all of
its obligations hereunder;
(ii) to Molex's knowledge, except as may be disclosed to Licensee, no part of
the Molex Intellectual Property infringes the rights of any third party;
(iii) to Molex's knowledge, except as may be disclosed to Licensee, no part
of the Molex Intellectual Property is being infringed;
(b) Licensee represents, warrants and covenants that:(i) it has the full
legal power and authority to enter into this Agreement and to fully perform
all of its obligations hereunder;
(ii) its performance hereunder will comply with all applicable law,
ordinances, regulations and codes.
(c) Notwithstanding the foregoing, there are no implied warranties of title,
merchantability or fitness. Neither party shall be liable to the other for
incidental or consequential losses, damages or expenses.
7. Indemnification. (a) Molex hereby agrees to defend, indemnify
and hold harmless Licensee and its shareholders, officers, directors,
employees, agents, affiliates from any claim, suit, loss or damage, including
reasonable attorney's fees, arising out of (i) any breach of Molex's
warranties hereunder, or (ii) any claim that the Molex Intellectual Property
infringes upon the proprietary rights of any person. The indemnification
provided for in (ii) of the proceeding sentence shall not apply to the extent
Molex shall specifically disclose to Licensee any potential infringement by
any item encompassed by the definition of Molex Intellectual Property prior to
the commencement of the Term. In the event Molex shall disclose any such
potential infringement to Licensee, Licensee shall have the right, upon notice
to Molex, to exclude such potentially infringing item from the definition of
Molex Intellectual Property and the terms of this Agreement shall not apply to
any such item.
(b) Licensee hereby agrees to defend, indemnify and hold harmless
Molex and its shareholders, officers, directors, employees, agents, affiliates
and licensees from any claim, suit, loss or damage, including reasonable
attorney's fees, arising out of (i) any breach of Licensee's warranties
hereunder, (ii) any aspect of Licensee's performance hereunder, or (iii) the
manufacture, use or sale of Permitted Products under this Agreement other than
that which is the subject of indemnification by Molex.
(c) Any party seeking indemnification (the "Indemnified Party")
shall promptly notify the indemnifying party in writing of any claim believed
to be subject to indemnification; provided, however, that no delay on the part
of the Indemnified Party shall relieve the indemnifying party from its
indemnification obligations except to the extent the indemnifying party is
prejudiced thereby. The Indemnified Party shall allow the indemnifying party
to control the defense of any third party claim for which the Indemnified
Party seeks indemnity under this Section 7(c) and shall cooperate in the
indemnifying party's defense thereof, at the expense of the indemnifying
party. If the indemnifying party assumes the defense of any such claim, the
indemnifying party's sole obligation with respect to such claim shall be
limited to holding the Indemnified Party harmless from and against any
judgments or settlements approved by the indemnified party in connection with
the claim, which consent will not be unreasonably withheld or delayed. In the
event the indemnifying party shall not assume the defense of any such claim,
the Indemnified Party shall have the right, following written notice to the
indemnifying party, to undertake to defend or settle such claim on behalf of
and for the account of and risk of loss of the indemnifying party. Regardless
of which party controls the settlement or defense of any claim, both parties
shall act in good faith and no entry of judgment or settlement of a claim may
be agreed to without the written consent of both the Indemnified Party and the
indemnifying party, which consent shall not be unreasonably withheld or
delayed; provided, however, that the indemnifying party may settle any such
claim solely for the payment of money provided that the Indemnified Party
receives a full release and has no obligations with respect to such
settlement.
8. Notification of Infringement. In the event that Licensee becomes
aware of any infringement of the Molex Intellectual Property, Licensee shall
promptly notify Molex who may in its sole discretion pursue or not pursue the
infringement. Licensee shall cooperate in any pursuit of such infringement.
9. Patent. Any products manufactured or sold under any of Molex's
patents shall be marked with a patent or patent pending notice. Permitted
Products sold by Licensee pursuant to this Agreement shall be at least of a
quality consistent with products manufactured by Molex.
10. Confidentiality. (a) All disclosures of trade secrets, know-how,
financial information, or other confidential information made by either party
under or in connection with this Agreement, as well as the terms of this
Agreement, shall be received and maintained in confidence by the recipient
(the Recipient) and each Recipient shall treat all such trade secrets,
know-how, financial information or other confidential information as the
confidential property of the disclosing party and shall not use same other
than as permitted under this Agreement. The Recipient shall not disclose same
to any other person except:
(i) to the extent persons directly responsible for the performance of the
obligations of this Agreement require such information in connection with the
performance of the obligations of this Agreement;
(ii) to the extent professional advisers of the Recipient require such
information in connection with providing their services to such party; and
(iii) to the extent disclosures of such information by employees of the
Recipient to suppliers, distributors, customers and other persons are
necessary or appropriate for the effective carrying on of business by the
Recipient provided such suppliers, distributors, customers and other persons
execute a non-disclosure agreement prohibiting the further disclosure of such
information.
(b) Notwithstanding the provisions of Section_10(a), information disclosed
by either party shall not be considered confidential information pursuant to
this Section_10 to the extent that:
(i) such information is required by law to be disclosed by such party,
provided that Recipient shall (A) provide the disclosing party with prompt
notice of such demand (and in any event prior to disclosure), (B) cooperate
with the disclosing party in resisting such disclosure or seeking suitable
protection prior to such disclosure, and (C) disclose only such confidential
information as Recipient is compelled by law to disclose;
(ii) the Recipient is able to show that such information was known to the
Recipient prior to such disclosure;
(iii) the Recipient is able to show that such information was independently
developed by the Recipient without use of any confidential information of the
other party;
(iv) the Recipient is able to show such information was acquired by the
Recipient from a third party without a continuing restriction on use; or
(v) such information which was, or becomes, publicly available through no
breach of this Agreement by the Recipient or its representatives.
(c) Each party will take such steps as lie within its power to assure that
all of its managers, directors, officers and employees, or of the managers,
directors, officers and employees of its Related Companies (as defined in the
L.L.C. Agreement), to whom confidential information is disclosed take all
proper precautions to prevent the unauthorized disclosure and use of the
confidential information referenced in this Section 10.
(d) Either party may, to the extent required by law or the regulations of
any agency or self-regulatory agency, file this Agreement with any
governmental authority, agency or self-regulatory agency provided that such
party gives the other party notice prior to such filing as far in advance as
reasonably possible (but in any event not less than 5 days prior to such
filing) and reasonably cooperates with the other party in seeking confidential
treatment or any provision or provisions of this Agreement requested to be
kept confidential by such other party. If either party is required to issue a
press release related to this Agreement by the laws or regulations of any
governmental authority, agency or self-regulatory agency, such party shall (a)
give notice and a copy of the proposed press release to the other party as far
in advance as reasonably possible and (b) make changes to such press release
reasonably requested by the other party.
11. Assignment. This Agreement shall be binding on and inure to the
benefit of the permitted successors to the parties. Licensee may not assign
or otherwise transfer any of its rights and obligations under this Agreement,
except as authorized by the L.L.C. Agreement.
12. Governing Law. This Agreement, its validity, interpretation, and
performance shall be governed by the laws of the State of Illinois, United
States of America.
13. Waiver. No consent or waiver, expressed or implied, by a party to
or of any breach or default by the other party in the performance by such
other party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party
hereunder. The giving of approval by a party in any one instance shall not
limit or waive the necessity to obtain such party's approval in any future
instance.
14. Notices. All notices under this Agreement shall be in writing and
shall be deemed properly given hereunder when (i) delivered by personal
service, (ii) delivered by courier service, (iii) telecopied and confirmed
immediately in writing by a copy mailed by registered or certified mail,
postage prepaid, return receipt requested, or (iv) when received, if sent by
certified or registered mail, postage prepaid, return receipt requested, to
the address of a party first stated above or to the Company at its principal
place of business. Any party may change its address for the purpose of this
Section 12 by notice to the other given in the manner set forth above.
15. Severability. Should any part of any provision of this Agreement
be held unenforceable, such part or provision shall be deemed to be
independent of all other parts or provisions of this Agreement, and all of the
other parts and provisions shall remain in full force and effect. With
respect to any part or provision of this Agreement that is deemed by a court
to be unenforceable as written, but may be rendered enforceable by limitation
thereof, the parties hereto agree that such part of provision shall be amended
so as to render it enforceable to the fullest extent permitted under the
applicable law.
16. Headings. The Article and Section headings of this Agreement are
for convenience only, do not form a part of this Agreement, and shall not in
any way affect the interpretation hereof.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
18. No-Third Party Rights. This Agreement shall not (directly,
indirectly, contingently or otherwise) confer or be construed as conferring
any rights or benefits on any person other than the parties hereto.
19. Entire Agreement. This Agreement and the provisions of the L.L.C.
Agreement related to the Agreement sets forth the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof. No modification or waiver of any of the provisions hereof shall be
valid unless in writing and signed by an authorized representative of the
party against whom such modification or waiver is sought to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Molex Incorporated Modular Interconnect Systems, L.L.C.
By: __________________________ By: __________________________
Name: Name:
Title: Title:
<PAGE>
EXHIBIT 1A-2
Sheldahl Technology License
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement is made as of this ___ day of July,
1998, by and between Sheldahl, Inc., a Minnesota corporation, having its
principal place of business at 1150 Sheldahl Road, Northfield, Minnesota 55057
(Sheldahl), and Modular Interconnect Systems, L.L.C., a Delaware limited
liability company, having its principal place of business at 400 Hulet Drive,
Bloomfield Hills, Michigan 48302 (Licensee).
RECITALS:
A. Sheldahl and Molex Incorporated, a Delaware corporation having its
principal place of business at 2222 Wellington Court, Lisle, Illinois 60532
(Molex), have entered into a Limited Liability Company Agreement of even date
herewith (the L.L.C. Agreement) for the purpose of forming the Licensee;
B. Sheldahl has developed or intends on developing certain patents
and copyrights and/or certain confidential information, know-how and trade
secrets relating solely and exclusively to the tooling, production and
development of [ ******* Confidential Treatment Requested ] (as defined
below) including, without limitation in each case, engineering and technical
data, manufacturing techniques, designs, skills, methods, procedures, tools,
templates, and other such information (collectively, the Sheldahl Intellectual
Property). [ ******* Confidential Treatment Requested ] ;
C. Molex has developed or intends on developing certain patents and
copyrights and/or certain confidential information, know-how and trade secrets
all relating to [ ******* Confidential Treatment Requested ] connectors
[ ******* Confidential Treatment Requested ] which Molex produces as of the
date of this Agreement, including, without limitation, engineering and
technical data, manufacturing techniques, designs, skills, methods,
procedures, tools, templates, and other such information (collectively, the
Molex Intellectual Property);
D. Sheldahl and Molex have each agreed to enter into a Technology
License Agreement with Licensee to grant a non-exclusive license to certain of
each party's respective intellectual property for the purpose of developing
and selling modular interconnect systems, utilizing [ ******* Confidential
Treatment Requested ] developed by Sheldahl and [ ******* Confidential
Treatment Requested ] connectors developed by Molex, as an alternative to
conventional automotive wiring harnesses and flex circuit assemblies;
E. Sheldahl and Molex have each agreed that the Technology License
Agreements to be entered into by Sheldahl and Molex respectively shall not
take effect unless and until there is a Change of Ownership (as is defined in
the L.L.C. Agreement) and the party not experiencing a Change of Ownership
purchases the other party's membership interest in Licensee pursuant to
Section 9.9 of the L.L.C. Agreement; and
F. Licensee desires to acquire a non-exclusive license of the
Sheldahl Intellectual Property on the terms and conditions hereinafter set
forth; and
G. Sheldahl is willing to grant such a license under the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises and
valuable consideration set forth herein, the parties hereby agree as follows:
1. Grant of License. During the Term set forth in paragraph 2
hereof, Sheldahl hereby grants to Licensee the non-sublicensable,
non-transferable, non-exclusive right to tool and produce [ *******
Confidential Treatment Requested ] using Sheldahl Intellectual Property
existing on the commencement of the Term (as defined in Section 2) for the
sole and exclusive purpose of incorporating the [******* Confidential
Treatment Requested ] into products for sale only in Licensee's assemblies
of products encompassed by the definition of Products in the L.L.C. Agreement
on the date of the Change of Ownership of Sheldahl which results in the
commencement of the Term as provided for in Section 2 of this Agreement (the
Permitted Products). All rights of Sheldahl not expressly granted to Licensee
herein are reserved to Sheldahl, including, without limitation, any patents
on [ ******* Confidential Treatment Requested ] developed by Sheldahl
which are not used in assemblies of Permitted Products produced by Licensee.
2. Term. The term of this license (the Term) shall commence as of
the date on which Molex purchases Sheldahl's membership interest in Licensee
pursuant to Section 9.9 of the L.L.C. Agreement following a Change of
Ownership of Sheldahl and shall continue in full force and effect during the
remaining term of the L.L.C. Agreement. The Term shall terminate automatically
when the L.L.C. Agreement terminates.
3. Non-exclusivity. Sheldahl shall be free to practice the
inventions and to make, use and sell products covered by the Sheldahl
Intellectual Property.
4. Consideration and royalties. Sheldahl grants this license in
consideration of the execution of the L.L.C. Agreement and the execution of a
comparable Technology License Agreement between Molex and Licensee. The
license granted herein is royalty-free.
5. Improvements. Any improvements, further discoveries, inventions,
technology, know-how, enhancements, modifications or other developments
developed by Licensee and relating to the Sheldahl Intellectual Property, as
that term is defined in this Agreement (Improvements), including, without
limitation, patents on [ ******* Confidential Treatment Requested ] ,
whether or not patented or patentable in any country, shall be and remain the
property of Sheldahl.
6. Warranties.
(a) Sheldahl represents, warrants and covenants that:(i) it has full legal
power and authority to enter into this Agreement and to fully perform all of
its obligations hereunder;
(ii) to Sheldahl's knowledge, except as may be disclosed to Licensee, no part
of the Sheldahl Intellectual Property infringes the rights of any third party;
(iii) to Sheldahl's knowledge, except as may be disclosed to Licensee, no
part of the Sheldahl Intellectual Property is being infringed;
(b) Licensee represents, warrants and covenants that:
(i) it has the full legal power and authority to enter into this Agreement
and to fully perform all of its obligations hereunder;
(ii) its performance hereunder will comply with all applicable law,
ordinances, regulations and codes.
(c) Notwithstanding the foregoing, there are no implied warranties of title,
merchantability or fitness. Neither party shall be liable to the other for
incidental or consequential issues, damages or expenses.
7. Indemnification.
(a) Sheldahl hereby agrees to defend, indemnify and hold harmless Licensee
and its shareholders, officers, directors, employees, agents, affiliates from
any claim, suit, loss or damage, including reasonable attorney's fees, arising
out of (i) any breach of Sheldahl's warranties hereunder or (ii) any claim
that the Sheldahl Intellectual Property infringes upon the proprietary rights
of any person. The indemnification provided for in (ii) of the proceeding
sentence shall not apply to the extent Sheldahl shall specifically disclose to
Licensee any potential infringement by any item encompassed by the definition
of Sheldahl Intellectual Property prior to the commencement of the Term. In
the event Sheldahl shall disclose any such potential infringement to Licensee,
Licensee shall have the right, upon notice to Sheldahl, to exclude such
potentially infringing item from the definition of Sheldahl Intellectual
Property and the terms of this Agreement shall not apply to any such item.
(b) Licensee hereby agrees to defend, indemnify and hold harmless Sheldahl
and its shareholders, officers, directors, employees, agents, affiliates and
licensees from any claim, suit, loss or damage, including reasonable
attorney's fees, arising out of (i) any breach of Licensee's warranties
hereunder, (ii) any aspect of Licensee's performance hereunder, or (iii) the
manufacture, use or sale of Permitted Products under this Agreement, other
than that which is the subject of indemnification by Sheldahl.
(c) Any party seeking indemnification (the "Indemnified Party") shall
promptly notify the indemnifying party in writing of any claim believed to be
subject to indemnification; provided, however, that no delay on the part of
the Indemnified Party shall relieve the indemnifying party from its
indemnification obligations except to the extent the indemnifying party is
prejudiced thereby. The Indemnified Party shall allow the indemnifying party
to control the defense of any third party claim for which the Indemnified
Party seeks indemnity under this Section 7(c) and shall cooperate in the
indemnifying party's defense thereof, at the expense of the indemnifying
party. If the indemnifying party assumes the defense of any such claim, the
indemnifying party's sole obligation with respect to such claim shall be
limited to holding the Indemnified Party harmless from and against any
judgments or settlements approved by the indemnified party in connection with
the claim, which consent will not be unreasonably withheld or delayed. In the
event the indemnifying party shall not assume the defense of any such claim,
the Indemnified Party shall have the right, following written notice to the
indemnifying party, to undertake to defend or settle such claim on behalf of
and for the account of and risk of loss of the indemnifying party. Regardless
of which party controls the settlement or defense of any claim, both parties
shall act in good faith and no entry of judgment or settlement of a claim may
be agreed to without the written consent of both the Indemnified Party and the
indemnifying party, which consent shall not be unreasonably withheld or
delayed; provided, however, that the indemnifying party may settle any such
claim solely for the payment of money provided that the Indemnified Party
receives a full release and has no obligations with respect to such
settlement.
8. Notification of Infringement. In the event that Licensee becomes
aware of any infringement of the Sheldahl Intellectual Property, Licensee
shall promptly notify Sheldahl who may in its sole discretion pursue or not
pursue the infringement. Licensee shall cooperate in any pursuit of such
infringement.
9. Patents. Any products manufactured or sold under any of
Sheldahl's patents shall be marked with a patent or patent pending notice.
Permitted Products sold by Licensee pursuant to this Agreement shall be at
least of a quality consistent with products manufactured by Sheldahl.
10. Confidentiality. (a) All disclosures of trade secrets, know-how,
financial information, or other confidential information made by either party
under or in connection with this Agreement, as well as the terms of this
Agreement, shall be received and maintained in confidence by the recipient
(the Recipient) and each Recipient shall treat all such trade secrets,
know-how, financial information or other confidential information as the
confidential property of the disclosing party and shall not use same other
than as permitted under this Agreement. The Recipient shall not disclose same
to any other person except:
(i) to the extent persons directly responsible for the performance of the
obligations of this Agreement require such information in connection with the
performance of the obligations of this Agreement;
(ii) to the extent professional advisers of the Recipient require such
information in connection with providing their services to such party; and
(iii) to the extent disclosures of such information by employees of the
Recipient to suppliers, distributors, customers and other persons are
necessary or appropriate for the effective carrying on of business by the
Recipient provided such suppliers, distributors, customers and other persons
execute a non-disclosure agreement prohibiting the further disclosure of such
information.
(b) Notwithstanding the provisions of Section 10(a), information disclosed by
either party shall not be considered confidential information pursuant to this
Section 10 to the extent that:
(i) such information is required by law to be disclosed by such party,
provided that Recipient shall (A) provide the disclosing party with prompt
notice of such demand (and in any event prior to disclosure), (B) cooperate
with the disclosing party in resisting such disclosure or seeking suitable
protection prior to such disclosure, and (C) disclose only such confidential
information as Recipient is compelled by law to disclose;
(ii) the Recipient is able to show that such information was known to the
Recipient prior to such disclosure;
(iii) the Recipient is able to show that such information was independently
developed by the Recipient without use of any confidential information of the
other party;
(iv) the Recipient is able to show such information was acquired by the
Recipient from a third party without a continuing restriction on use; or
(v) such information which was, or becomes, publicly available through no
breach of this Agreement by the Recipient or its representatives.
(c) Each party will take such steps as lie within its power to assure that all
of its managers, directors, officers and employees, or of the managers,
directors, officers and employees of its Related Companies (as defined in the
L.L.C. Agreement), to whom confidential information is disclosed take all
proper precautions to prevent the unauthorized disclosure and use of the
confidential information referenced in this Section 10.
(d) Either party may, to the extent required by law or the regulations of any
agency or self-regulatory agency, file this Agreement with any governmental
authority, agency or self-regulatory agency provided that such party gives the
other party notice prior to such filing as far in advance as reasonably
possible (but in any event not less than 5 days prior to such filing) and
reasonably cooperates with the other party in seeking confidential treatment
or any provision or provisions of this Agreement requested to be kept
confidential by such other party. If either party is required to issue a
press release related to this Agreement by the laws or regulations of any
governmental authority, agency or self-regulatory agency, such party shall (a)
give notice and a copy of the proposed press release to the other party as far
in advance as reasonably possible and (b) make changes to such press release
reasonably requested by the other party.
11.Assignment. This Agreement shall be binding on and inure to the
benefit of the permitted successors to the parties. Licensee may not assign
or otherwise transfer its rights and obligations under this Agreement.
12. Governing Law. This Agreement, its validity, interpretation, and
performance shall be governed by the laws of the State of Minnesota, United
States of America, without reference to principles of choice of laws or
conflicts of the law thereof.
13. Waiver. No consent or waiver, expressed or implied, by a party to
or of any breach or default by the other party in the performance by such
other party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party
hereunder. The giving of approval by a party in any one instance shall not
limit or waive the necessity to obtain such party's approval in any future
instance.
14. Notices. All notices under this Agreement shall be in writing and
shall be deemed properly given hereunder when (i) delivered by personal
service, (ii) delivered by courier service, (iii) telecopied and confirmed
immediately in writing by a copy mailed by registered or certified mail,
postage prepaid, return receipt requested, or (iv) when received, if sent by
certified or registered mail, postage prepaid, return receipt requested, to
the address of a party first stated above or to the Company at its principal
place of business. Any party may change its address for the purpose of this
Section 12 by notice to the other given in the manner set forth above.
15. Severability. Should any part of any provision of this Agreement
be held unenforceable, such part or provision shall be deemed to be
independent of all other parts or provisions of this Agreement, and all of the
other parts and provisions shall remain in full force and effect. With
respect to any part or provision of this Agreement that is deemed by a court
to be unenforceable as written, but may be rendered enforceable by limitation
thereof, the parties hereto agree that such part of provision shall be amended
so as to render it enforceable to the fullest extent permitted under the
applicable law.
16. Headings. The Article and Section headings of this Agreement are
for convenience only, do not form a part of this Agreement, and shall not in
any way affect the interpretation hereof.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
18. No-Third Party Rights. This Agreement shall not (directly,
indirectly, contingently or otherwise) confer or be construed as conferring
any rights or benefits on any person other than the parties hereto.
19. Entire Agreement. This Agreement and the provisions of the L.L.C.
Agreement related to this Agreement set forth the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof. No modification or waiver of any of the provisions hereof shall be
valid unless in writing and signed by an authorized representative of the
party against whom such modification or waiver is sought to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Sheldahl, Inc. Modular Interconnect System, L.L.C.
By: __________________________ By: __________________________
Name: Name:
Title: Title:
<PAGE>
EXHIBIT 1A-3
Molex Supply Agreement
SUPPLY AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of July,
1998, by and between MOLEX INCORPORATED, 2222 Wellington Court, Lisle,
Illinois 60532 ("Seller") and MODULAR INTERCONNECT SYSTEMS, L.L.C., 400 Hulet
Drive, Bloomfield Hills, Michigan 48302 ("Buyer").
Recitals
A. Seller designs, manufactures, distributes and sells automotive
interconnection products and other component parts, and has entered into a
joint venture with Sheldahl, Inc. to form and operate Buyer for the purpose of
developing and selling modular interconnect systems.
B. Buyer desires to purchase automotive interconnection products and
other component parts from Seller, and Seller is willing to sell such products
to Buyer on the terms and conditions set forth below.
Terms and Conditions
In consideration of the mutual agreements, promises and undertakings
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
Section 1
PURCHASE OF PRODUCTS
1.1 Requirements. Seller shall sell to Buyer, and Buyer shall purchase from
Seller, all of Buyer's requirements for the automotive interconnection
products and component parts set forth in Exhibit A attached hereto
("Products"). Exhibit A may be changed from time to time upon written
agreement of the parties, provided that at such time the parties shall
determine under what conditions such additional Products shall be supplied by
Seller to Buyer; provided, however, that the parties shall review price [
******* Confidential Treatment Requested ] . Buyer and Seller agree that,
upon the request of either party, Buyer and Seller shall review the cost of
Products to Buyer under this Agreement and, if agreed to by Buyer and Seller
in each of their sole discretion, modify such price. [ ******* Confidential
Treatment Requested ] .
1.2 Product Estimates. To assist Seller in planning, Buyer shall provide
Seller with its annual forecast of estimated requirements for Products in
writing not less than ninety (90) days prior to the next succeeding year and
shall update such estimate each month on a rolling quarterly basis. Seller
shall have no obligation to supply Products in excess of 110% of such
estimated requirements during any quarterly period, although Seller shall use
its reasonable efforts to meet Buyer's unexpected increased needs beyond such
amount.
Section 2
TERMS OF SALE
2.1 Orders. Buyer shall place all orders in writing and all orders are
subject to approval and acceptance in writing by Seller. Notwithstanding any
different terms which may be contained in Seller's sales or Buyer's order
forms, all purchases and sales of Products hereunder shall be made on the
terms and conditions set forth in Exhibit B attached hereto. In the event of
any consistencies between this Agreement and the terms and conditions in
Exhibit B, this Agreement shall be controlling.
2.2 Prices. The price of the Products to Buyer shall be equal to [
******* Confidential Treatment Requested ] . For purposes of this Section
2.2, "Cost" is defined in Exhibit C attached hereto. Buyer shall have the
right to audit Seller with respect to such Costs at all reasonable times, and
Seller shall cooperate with Buyer in the performance of such audit by making
its books, records and personnel reasonably available to Buyer. In the event
Buyer finds a discrepancy, Seller shall adjust the price of Products charged
to Buyer and provide a refund or credit against further purchases.
2.3 Increase in Prices. Seller will hold the prices for Products quoted by
Seller for the life of each of the Buyer's programs, except for material cost
increases or decreases it receives from its suppliers, or for a maximum period
of five (5) years, whichever is shorter.
2.4 Payment. Payment shall be made by Buyer net thirty (30) days from the
date of invoice or date of shipment, whichever is later. A service charge of
one and one-half percent (1 1/2%) per month or the maximum permissible rate
will be added to all past due accounts.
Section 3
PERFORMANCE REQUIREMENTS
3.1 Product Development. The parties may engage in the development of new
products to be sold by Seller to Buyer hereunder as mutually agreed upon by
officers of both parties.
3.2 Product Availability. The Products subject to this Agreement shall be
the Products listed in Exhibit A. During the term of this Agreement, Seller
may not modify or withdraw a Product from the market except with the prior
written consent of Buyer and then only in accordance with the Production, Part
and Approval Process ("PPAP") operating principles in effect for customers of
Buyer who are purchasing a product, a component of which includes that
Product.
3.3 Availability of Data.
3.3.1 Seller shall maintain data, technical information and the
like relating to the manufacture, safety, quality control and specifications
of the Products at its headquarters in accordance with its standard practices
and procedures, and will make such data reasonably available to Buyer on
request to the extent it is non-confidential or proprietary to Seller.
3.3.2 All disclosures of trade secrets, know-how, financial
information, or other proprietary information ("Proprietary Information") made
by either party under or in connection with this Agreement, as well as the
terms of this Agreement, shall be received and maintained in confidence by the
recipient (the "Recipient") and each Recipient shall treat all such
Proprietary Information as the confidential property of the disclosing party
and shall not use same other than as permitted under this Agreement. The
Recipient shall not disclose same to any other person except:
3.3.2.1 to the extent persons directly responsible for the
performance of the obligations of this Agreement require such
information in connection with the performance of the obligations of
this Agreement;
3.3.2.2 to the extent professional advisers of the Recipient
require such information in connection with providing their services to
such party; and
3.3.2.3 to the extent disclosures of such information by
employees of the Recipient to suppliers, distributors, customers and
other persons are necessary or appropriate for the effective carrying on
of business by the Recipient provided such suppliers, distributors,
customers and other persons execute a non-disclosure agreement
prohibiting the further disclosure of such information.
3.3.3 Notwithstanding the provisions of Section 3.3.2, information
disclosed by either party shall not be considered Proprietary Information
pursuant to this Section 3.3 to the extent that:
3.3.3.1 such information is required by law to be disclosed by
such party, provided that Recipient shall (A) provide the disclosing
party with prompt notice of such demand (and in any event prior to
disclosure), (B) cooperate with the disclosing party in resisting such
disclosure or seeking suitable protection prior to such disclosure, and
(C) disclose only such Proprietary Information as Recipient is compelled
by law to disclose;
3.3.3.2 the Recipient is able to show that such information
was known to the Recipient prior to such disclosure;
3.3.3.3 the Recipient is able to show that such information
was independently developed by the Recipient without use of any
confidential information of the other party;
3.3.3.4 the Recipient is able to show such information was
acquired by the Recipient from a third party without a continuing
restriction on use; or
3.3.3.5 such information which was, or becomes, publicly
available through no breach of this Agreement by the Recipient or its
representatives.
3.3.4 Each party will take such steps as lie within its power to assure
that all of its managers, directors, officers and employees, or of the
managers, directors, officers and employees of its Related Companies (as
defined in the L.L.C. Agreement), to whom Proprietary Information is disclosed
take all proper precautions to prevent the unauthorized disclosure and use of
the confidential information referenced in this Section 3.3.
3.4 Seller's Marks. Except for such rights as inure to Buyer in
connection with its purchase of Products, and except as otherwise agreed to by
Seller, Buyer is granted no rights pursuant to this Agreement to use the name,
service mark and/or trademarks of Seller.
3.5 Cover. In addition to Buyer's ability to purchase products
elsewhere in the event of force majeure as provided in Section 5.10, Buyer
shall have the right to cancel any order with respect to any Products not yet
delivered and purchase products elsewhere in the event Seller is unable
consistently to supply Buyer with the quantity of Products ordered within the
delivery times agreed upon, provided that Buyer provides Seller with written
notice and an opportunity to cure such failure pursuant to Section 4.3.1.
Section 4
TERM AND TERMINATION
4.1 Term. Unless terminated sooner as provided in Sections 4.2, 4.3
or 4.4, the term of this Agreement shall commence on the date hereof and
continue until the later of (i) [ ******* Confidential Treatment
Requested ] after Dissolution, (ii) [ ******* Confidential Treatment
Requested ] after the Buy/Sell Closing in which Seller's membership
interest in Buyer is purchased, (iii) [ ******* Confidential Treatment
Requested ] after any other purchase of Seller's membership interest in
Buyer, or (iv) [ ******* Confidential Treatment Requested ] . For
purposes of this Section 4.1, "Dissolution" and "Buy-Sell Closing" shall
have the meanings assigned to such terms in Sections 10.3 and 14.4,
respectively, of the Limited Liability Company Agreement of Modular
Interconnect Systems, L.L.C., dated as of __________________, 1998 ("L.L.C.
Agreement").
4.2 Automatic Termination. This Agreement shall terminate
automatically if Seller is dissolved.
4.3 Termination by Notice. The non-breaching party may terminate this
Agreement effective immediately by written notice to the other party upon
happening of any of the following events:
4.3.1 Either party fails to fulfill or perform any one or more
of the duties, obligations or responsibilities undertaken by that party herein
and does not cure that failure within one hundred eighty (180) days of receipt
of written notice thereof from the non-breaching party.
4.3.2 The other party's inability, or its admission in writing
of its inability, to pay debts as they mature; or the other party's
insolvency; or appointment by a court of a temporary or permanent receiver,
trustee or custodian for the business of the other party; or an assignment for
the benefit of creditors of the other party; or
4.3.3 The assignment or attempted assignment, except as
permitted by Section 5.7 hereof, by the other party of any interest in this
Agreement without the prior written consent of the non-breaching party.
4.4 Assignee Right to Terminate. In the event that this Agreement is
assigned to Sheldahl, Inc. in connection with the Dissolution, Buy/Sell
Closing or other purchase of Seller's membership interest in Buyer, Sheldahl,
Inc. may terminate this Agreement at any time thereafter upon not less than
thirty (30) days prior written notice to Seller.
4.5 Seller's Obligations.
4.5.1 Seller's obligations to supply Products to Buyer as
provided in Section 4.1 shall be subject to the following: Products shall be
supplied to Buyer, or to Sheldahl, Inc. if this Agreement is assigned to
Sheldahl, Inc., [ ******* Confidential Treatment Requested ] .
4.5.2 In the event of termination of this Agreement for any
reason, Buyer shall immediately pay to Seller all amounts due to Seller under
any outstanding purchase orders.
Section 5
GENERAL PROVISIONS
5.1 Relationship. The relationship established by this Agreement is
that of buyer and seller. Neither Buyer nor any of its agents or employees
shall be deemed to be the representative, employee or agent of Seller for any
purpose whatsoever, and the relationship of Buyer to Seller is that of an
independent contractor, and they or any of them shall have no right or
authority to assume or create any obligation of any kind, expressed or
implied, on behalf of Seller.
5.2 Modifications, Amendments and Waivers. This Agreement may not be
modified or amended, including by custom, usage of trade or course of dealing
or performance, except by an instrument in writing signed by duly authorized
officers of both of the parties hereto. Performance of any obligation
required of a party hereunder may be waived only by a written waiver signed by
a duly authorized officer of the other party, which waiver shall be effective
only with respect to the specific obligation described therein. The waiver by
either party of a breach of any obligation of the other shall not operate or
be construed as a waiver of any subsequent breach of the same provision or any
other provision of this Agreement, nor a waiver by that party of its right at
any time thereafter to require strict compliance with all terms and conditions
of this Agreement.
5.3 Compliance with Law. The parties shall comply with all applicable
laws and regulations in performing their respective duties hereunder.
5.4 Exclusion of Consequential Damages. In no event shall either
party be liable to the other party and its successors or assigns, for any
indirect, special or consequential damages, including, without limitation,
lost profits, costs of delay, any failure of delivery, costs of lost or
damaged data or documentation, or other liabilities to third parties arising
from any source.
5.5 Survivability. All obligations of the parties which expressly or
by their nature survive termination or expiration or transfer of this
Agreement shall continue in full force and effect subsequent to and
notwithstanding such termination or expiration or transfer and until they are
satisfied or by their nature expire.
5.6 Severability. In the event that any provision hereof is found
invalid or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable according to
its terms.
5.7 Assignment; Subcontracting. Except as provided below, neither
party may delegate its duties hereunder without the prior written consent of
the other party and this Agreement shall not be assignable by either party.
Any attempt by either party to delegate any of its duties or to assign any of
its rights hereunder without the prior written consent of the other party
shall be null and void. Notwithstanding the foregoing, upon prior written
notice to the other party, either party shall be entitled to assign any part
or all of this Agreement (including but not limited to its rights and
obligations contained herein) to a Related Company, provided that the assignor
continues to remain liable and responsible to the other party for such Related
Company's performance hereunder. For purposes of this Section 5.7, "Related
Company" is defined in Exhibit C attached hereto. Buyer shall assign this
Agreement to Sheldahl, Inc. at Sheldahl's request upon Dissolution, the
Buyer/Seller Closing or other purchase of Seller's membership interest in
Buyer, provided that Sheldahl, Inc. assumes Buyer's obligations hereunder
after the date of assignment, except that the requirements aspects of this
Agreement shall be limited to the specific Products and applications of Buyer
as of such date. Seller may subcontract its production obligations hereunder
only if (i) the Cost of the Product is not affected, (ii) the customer
purchasing such Product approves the subcontracting pursuant to the PPAP
operating principles in effect for that customer, and (iii) Buyer's prior
written consent is obtained, which consent shall not be unreasonably withheld.
5.8 Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective legal representatives,
successors and permitted assigns.
5.9 Governing Law. This Agreement shall be construed and enforced in
accordance with the substantive laws of the State of Illinois, without regard
to its conflict of laws provisions.
5.10 Force Majeure. No liability hereunder shall result to either
party from delay in performance or non-performance caused by circumstances
beyond the reasonable control of that party, including, but not limited to,
acts of god, fire, flood or other casualty, war, government action, accident,
labor strikes or other difficulty, or shortage of or inability to obtain fuel,
energy, material, equipment or transportation. In the event of any delay in a
party's performance due in whole or in part to any cause beyond that party's
reasonable control, that party shall promptly notify the other party in
writing of such event and shall have such additional time for performance as
may be reasonably necessary under the circumstances. Notwithstanding the
foregoing, if such event continues for more than thirty (30) days Buyer may
cancel any order with respect to any Products not delivered and purchase
products elsewhere, and Buyer shall be under no obligation to accept or pay
for the same or compensate Seller for any expense which it may have incurred.
5.11 Notices. Unless otherwise specifically provided, all notices
required or permitted by this Agreement shall be in writing and may be
delivered personally, or sent by facsimile, by certified mail, return receipt
requested, or by overnight courier service, to the parties at the following
addresses or facsimile numbers, unless the parties are subsequently notified
of any change of address or facsimile number in accordance with this Section
5.12:
If to Seller:
Molex Incorporated
2222 Wellington Court
Lisle, Illinois 60532
Attn: Martin Slark
Facsimile: (630) 969-1352
If to Buyer:
Modular Interconnect Systems, L.L.C.
400 Hulet Drive
Bloomfield Hills, Michigan 48302
Attn: Bob Fuerst
Facsimile: (248) 322-8020
With a copy to:
Sheldahl, Inc.
1150 Sheldahl Road
Northfield, Minnesota 55057
Attn: Ed Lundstrom
Facsimile: (607) 663-8234
Any notice shall be deemed to have been received as follows: (1) by personal
delivery, upon receipt; (2) by facsimile, one (1) business day after
transmission; (3) by overnight commercial delivery service, one (1) business
day after delivery to such commercial delivery service; or (4) by certified
mail, three (3) business days after mailing. If notice is sent by facsimile,
a confirming copy of the notice shall also be sent by mail.
5.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
5.13 Entire Agreement. This Agreement, together with the Exhibits
hereto, constitutes the entire understanding and contract between the parties
with respect to the subject matter hereof and supersedes any and all prior and
contemporaneous, oral or written representations, communications,
understandings and agreement between the parties with respect to the subject
matter hereof. The parties acknowledge and agree that neither of the parties
is entering into this Agreement on the basis of any representations or
promises not expressly contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date specified above.
SELLER:
MOLEX INCORPORATED
BY:
Its:
BUYER:
MODULAR INTERCONNECT SYSTEMS, L.L.C.
BY:
Its:
<PAGE>
Exhibit A
PRODUCTS
[ ******* Confidential Treatment Requested ] .
<PAGE>
Exhibit B
TERMS AND CONDITIONS OF PURCHASE AND SALE
ALL PURCHASES AND SALES OF PRODUCTS UNDER THIS SUPPLY AGREEMENT ARE SUBJECT TO
THE FOLLOWING TERMS AND CONDITIONS:
1. Agreement. These terms and conditions shall govern all purchases and
sales of Products under the Supply Agreement between Seller and Buyer.
No terms or conditions in any way adding to, modifying or otherwise
changing the provisions stated herein shall be binding upon either party
unless made in writing and signed and approved by an officer of both
parties. These terms will not be modified by Seller's shipment of
Products following receipt of Buyer's purchase order, shipping request
or similar forms containing printed terms and conditions conflicting or
inconsistent with the terms herein, or by Seller's use of its own sales
forms with printed terms and conditions conflicting or inconsistent with
the terms herein.
2. ORDERS SUBJECT TO ACCEPTANCE. ALL ORDERS ARE SUBJECT TO ACCEPTANCE IN
WRITING BY SELLER AT ITS PRINCIPAL OFFICE. AN ACKNOWLEDGEMENT OF EACH
ORDER MUST BE RETURNED BY SELLER TO BUYER PROMPTLY ALTER THE RECEIPT OF
SAME, AND MUST CONTAIN PRICE AND DEFINITE DELIVERY DATA. SIGNING OF AN
ACKNOWLEDGEMENT, OR HOLDING AN ORDER TEN (10) DAYS OR LONGER, SHALL
CONSTITUTE AN ACCEPTANCE OF AN ORDER.
3. PRICES. ALL PRICES ARE SET FORTH IN SECTION 2.2 OF THE SUPPLY AGREEMENT
AND ARE F.O.B. FACTORY, AND EXCLUDE ALL FEDERAL, STATE OR LOCAL TAXES.
ALL TAXES AND EXCISES OF ANY NATURE WHATSOEVER NOW OR HEREAFTER LEVIED
BY GOVERNMENTAL AUTHORITY, WHETHER FEDERAL, STATE OR LOCAL, EITHER
DIRECTLY OR INDIRECTLY, UPON THE SALE OR TRANSPORTATION OF ANY GOODS
COVERED HEREBY, SHALL BE PAID AND BORNE BY BUYER.
4. PAYMENT. ALL ACCOUNTS SHALL BE PAID NET AT SELLER'S PRINCIPAL OFFICE
WITHIN THIRTY (30) DAYS AFTER THE DATE OF INVOICE OR DATE OF SHIPMENT,
WHICHEVER IS LATER. A SERVICE CHARGE OF THE LESSER OF 1 1/2% PER MONTH OR
THE MAXIMUM PERMISSIBLE RATE WILL BE ADDED TO ALL PAST DUE ACCOUNTS.
5. MATERIAL AND MANUFACTURE. ALL MATERIAL MUST CONFORM STRICTLY TO
SPECIFICATIONS. ON ANY NEW PARTS, A SAMPLE MUST BE APPROVED BY BUYER
BEFORE SELLER PROCEEDS WITH MANUFACTURE OF A QUANTITY RUN.
6. QUANTITY. SELLER MUST FURNISH THE ENTIRE QUANTITY ORDERED HEREUNDER
AND SAID QUANTITY CANNOT BE VARIED BY SELLER UNLESS BUYER'S DIRECTOR OF
PURCHASING AGREES IN WRITING TO ACCEPT A DIFFERENT QUANTITY. BUYER
RESERVES THE RIGHT TO REJECT ANY UNAUTHORIZED QUANTITIES AND TO RETURN
SAME TO SELLER AT SELLER'S RISK AND EXPENSE. NOTWITHSTANDING THE
FOREGOING, SELLER SHALL HAVE THE OPTION, UPON WRITTEN NOTICE TO BUYER,
OF MANUFACTURING, SHIPPING AND BILLING A PORTION OF BUYER'S ORDER AND
LATER, WITHIN THE TIME SPECIFIED IN BUYER'S ORDER, MANUFACTURING,
SHIPPING AND BILLING THE REMAINDER OF ANY SUCH ORDER.
7. DELIVERY TERMS. SELLER WILL ATTEMPT TO MEET THE REQUIREMENTS OF
BUYER'S DELIVERY SCHEDULE BUT SHALL BE OBLIGATED ONLY TO THE DELIVERY
SCHEDULE SHOWN ON THE ORDER ACKNOWLEDGMENT. ALL DELIVERY EXPENSES,
INCLUDING TRANSPORTATION, INSURANCE AND OTHER SHIPPING COSTS, SHALL BE
FOR BUYER'S ACCOUNT.
8. TITLE/RISK OF LOSS. DELIVERY OF GOODS TO CARRIER SHALL BE DEEMED
DELIVERY TO BUYER, AND THEREUPON TITLE TO SUCH GOODS, AND RISK OF LOSS
OR DAMAGE, SHALL BE BUYER'S. ANY CLAIM BY BUYER AGAINST SELLER FOR
SHORTAGE OR DAMAGE OCCURRING PRIOR TO SUCH DELIVERY MUST BE MADE IN
WRITING WITHIN THIRTY (30) DAYS AFTER RECEIPT OF SHIPMENT AND
ACCOMPANIED BY ORIGINAL TRANSPORTATION BILL SIGNED BY CARRIER NOTING
THAT CARRIER RECEIVED GOODS FROM SELLER IN THE CONDITION CLAIMED. ANY
CLAIM BY BUYER FOR DAMAGE OCCURRING DURING SHIPMENT SHALL BE MADE
DIRECTLY AGAINST THE FREIGHT CARRIER, WITH A COPY OF SUCH CLAIM PROMPTLY
FORWARDED TO SELLER.
9. BUYER'S INSPECTION. ALL PRODUCTS PURCHASED HEREUNDER WILL BE SUBJECT
TO BUYER'S RIGHT OF INSPECTION AND REJECTION. BUYER SHALL HAVE THIRTY
(30) DAYS FROM RECEIPT OF THE PRODUCTS TO INSPECT THEM AND TO NOTIFY
SELLER OF ANY NONCONFORMANCE. BUYER MAY REJECT ANY PRODUCTS WHICH DO
NOT CONFORM TO THE TERMS OF THIS AGREEMENT OR ANY ORDER, OR, WITH
SELLER'S CONSENT, MAY REPAIR OR CORRECT THEM AT SELLER'S COST. IF
REJECTED, THEY WILL BE HELD FOR DISPOSITION AT SELLER'S RISK AND
EXPENSE. ANY PAYMENT ON ACCOUNT THEREOF WILL BE PROMPTLY REFUNDED BY
SELLER. ANY INSPECTION BY BUYER OF PRODUCTS AT SELLER'S PLANT DURING OR
AFTER MANUFACTURE, WHETHER OR NOT SUCH INSPECTION AT SAID PLANT IS
PROVIDED FOR BY THE TERMS HEREOF, SHALL BE PROVISIONAL ONLY, AND SHALL
NOT CONSTITUTE FINAL INSPECTION, NOR BE CONSTRUED AS A WAIVER OF THE
FOREGOING RIGHT OF INSPECTION AND REJECTION AFTER RECEIPT OF SAME.
10. BUYER'S CHANGES. BUYER SHALL HAVE THE RIGHT AT ANY TIME TO MAKE CHANGES
IN DRAWINGS, SPECIFICATIONS, OR BOTH OF THEM, RELATING TO ANY ORDER BY
GIVING SELLER WRITTEN NOTICE OF SUCH CHANGE. IF SUCH CHANGES CAUSE AN
INCREASE OR DECREASE IN THE AMOUNT DUE UNDER AN ORDER OR IN THE TIME
REQUIRED FOR SELLER'S PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE
BY MUTUAL AGREEMENT BETWEEN THE PARTIES HERETO.
11. CANCELLATION. BUYER RESERVES THE RIGHT TO CANCEL ALL OR ANY PART OF THE
UNDELIVERED PORTION OF ANY ORDER IF SELLER DOES NOT MAKE DELIVERIES AS
SPECIFIED, TIME BEING OF THE ESSENCE OF THIS CONTRACT, OR IF SELLER
BREACHES ANY OF THE TERMS HEREOF INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF SELLER. ANY PROVISIONS HEREIN FOR DELIVERY OF PRODUCTS OR
THE RENDERING OF SERVICES BY INSTALLMENTS SHALL NOT BE CONSTRUED AS
MAKING THE OBLIGATIONS OF SELLER SEVERABLE.
12. BUYER'S TERMINATION. BUYER MAY AT ANY TIME FOR ITS CONVENIENCE
TERMINATE ANY ORDER, IN WHOLE OR IN PART, BY WRITTEN OR BY FACSIMILE
NOTICE, OR BY VERBAL NOTICE CONFIRMED IN WRITING. IF AN ORDER IS
TERMINATED FOR BUYER'S CONVENIENCE, ANY CLAIM OF SELLER SHALL BE SETTLED
ON THE BASIS OF THE REASONABLE COSTS IT HAS INCURRED IN THE PERFORMANCE
OF THAT ORDER, PLUS FIVE PERCENT (5%).
13. FORCE MAJEURE. NO LIABILITY HEREUNDER SHALL RESULT TO EITHER PARTY FROM
DELAY IN PERFORMANCE OR NON-PERFORMANCE CAUSED BY CIRCUMSTANCES BEYOND
THE REASONABLE CONTROL OF THAT PARTY, INCLUDING, BUT NOT LIMITED TO,
ACTS OF GOD, FIRE, FLOOD OR OTHER CASUALTY, WAR, GOVERNMENT ACTION,
ACCIDENT, LABOR STRIKES OR OTHER DIFFICULTY, OR SHORTAGE OF OR INABILITY
TO OBTAIN FUEL, ENERGY, MATERIAL, EQUIPMENT OR TRANSPORTATION. IN THE
EVENT OF ANY DELAY IN A PARTY'S PERFORMANCE DUE IN WHOLE OR IN PART TO
ANY CAUSE BEYOND THAT PARTY'S REASONABLE CONTROL, THAT PARTY SHALL
PROMPTLY NOTIFY THE OTHER PARTY IN WRITING OF SUCH EVENT AND SHALL HAVE
SUCH ADDITIONAL TIME FOR PERFORMANCE AS MAY BE REASONABLY NECESSARY
UNDER THE CIRCUMSTANCES. NOTWITHSTANDING THE FOREGOING, IF SUCH EVENT
CONTINUES FOR MORE THAN THIRTY (30) DAYS BUYER MAY CANCEL ANY ORDER WITH
RESPECT TO ANY PRODUCTS NOT DELIVERED AND PURCHASE PRODUCTS ELSEWHERE,
AND BUYER SHALL BE UNDER NO OBLIGATION TO ACCEPT OR PAY FOR THE SAME OR
COMPENSATE SELLER FOR ANY EXPENSE WHICH IT MAY HAVE INCURRED.
14 WARRANTY AND DISCLAIMER. SELLER WARRANTS TO BUYER THAT ANY PRODUCTS
SOLD HEREUNDER WILL BE FREE FROM DEFECTS IN WORKMANSHIP AND MATERIALS
UNDER NORMAL CONDITIONS OF USE FOR SIX (6) MONTHS FROM THE DATE OF
DELIVERY TO BUYER. THIS WARRANTY WILL SURVIVE ACCEPTANCE OF THE
PRODUCTS.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES
WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS.
SELLER'S LIABILITY AND BUYER'S SOLE REMEDY HEREUNDER FOR A BREACH OF
WARRANTY IS EXPRESSLY LIMITED, AT SELLER'S ELECTION, TO REPAIR OR
REPLACEMENT (IN THE FORM ORIGINALLY SHIPPED) OF PRODUCTS NOT COMPLYING
WITH THIS AGREEMENT, OR TO THE REPAYMENT OF, OR CREDITING BUYER WITH, AN
AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH PRODUCTS.
ANY CLAIM BY BUYER WITH REFERENCE TO THE PRODUCTS SOLD HEREUNDER FOR ANY
CAUSE SHALL BE DEEMED WAIVED BY BUYER UNLESS SUBMITTED TO SELLER IN
WRITING WITHIN NINETY (90) DAYS FROM THE DATE BUYER DISCOVERED, OR
SHOULD HAVE DISCOVERED, ANY CLAIMED BREACH.
15. LIMITATION OF REMEDIES. SELLER SHALL NOT BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES, DIRECTLY OR INDIRECTLY
ARISING FROM THE SALE, HANDLING OR USE OF THE PRODUCTS, OR FROM ANY
OTHER CAUSE WITH RESPECT TO THE PRODUCTS OR ANY ORDER, WHETHER SUCH
CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT
LIABILITY IN TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY.
16. SECURITY. IF BUYER FAILS TO FULFILL THE TERMS OF PAYMENT OR IF SELLER
SHALL HAVE ANY DOUBT AT ANY TIME AS TO BUYER'S FINANCIAL CONDITION,
SELLER MAY DECLINE TO MAKE FURTHER DELIVERIES EXCEPT UPON RECEIPT OF
CASH OR SATISFACTORY SECURITY. THIS REQUIREMENT WILL NOT RELEASE BUYER
FROM ANY PREVIOUS OBLIGATION. SELLER'S RIGHTS UNDER THIS SECTION SHALL
BE IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES AVAILABLE TO SELLER UPON
BUYER'S DEFAULT.
17. COMPLIANCE WITH LAWS. IN FULFILLING THIS ORDER, SELLER SHALL COMPLY
WITH ALL APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS AND ORDERS,
FEDERAL, STATE, LOCAL AND FOREIGN. WITH RESPECT TO GOODS PRODUCED IN
THE UNITED STATES, SELLER SPECIFICALLY WARRANTS THAT ALL GOODS FURNISHED
HEREUNDER WILL BE PRODUCED AND SOLD IN COMPLIANCE WITH ALL APPLICABLE
REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT, AS AMENDED, INCLUDING
SECTION 6, 7 AND 12, AND THE REGULATIONS AND ORDERS ISSUED UNDER SECTION
14 THEREOF, AND THAT IT WILL CERTIFY SUCH COMPLIANCE ON EACH INVOICE
SUBMITTED IN CONNECTION WITH THIS ORDER.
18. SELLER'S INDEMNIFICATION. SELLER SHALL INDEMNIFY AND HOLD HARMLESS
BUYER, AND ITS SUCCESSORS, ASSIGNS, EMPLOYEES AND AGENTS, FROM AND
AGAINST ALL CLAIMS, DIRECT LOSSES, PENALTIES, DAMAGES (EXCLUDING
INCIDENTAL AND CONSEQUENTIAL DAMAGES), COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) ARISING OUT OF (A) ANY ALLEGED OR ACTUAL
INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF ANY LETTERS PATENT OR TRADE
SECRETS OR TRADEMARKS OR SERVICE MARKS BY REASON OF THE USE, SALE OR
LEASE OF ANY PRODUCTS PURCHASED HEREUNDER, EXCEPTING UNPATENTED STAPLE
ARTICLES OF COMMERCE, PRODUCTS MANUFACTURED IN ACCORDANCE WITH BUYER'S
DESIGN, OR OTHERWISE NON-INFRINGING PRODUCTS INCORPORATED INTO A PRODUCT
OF BUYER, (B) ANY ALLEGED OR ACTUAL DEFECTS IN THE PRODUCTS, WHETHER
LATENT OR PATENT, AND WHETHER OF DESIGN, WARNING OR MANUFACTURE, (BUT
EXCLUDING ANY CLAIMS ARISING OUT OF DESIGNS PROVIDED BY BUYER), OR (C)
ANY ALLEGED OR ACTUAL FAILURE OF THE PRODUCTS TO INCLUDE NECESSARY
SAFETY FEATURES OR OTHERWISE CONFORM TO THE REQUIREMENTS OF ANY FEDERAL,
STATE OR LOCAL HEALTH OR SAFETY LAW, STANDARD REGULATION OR ORDINANCE,
WHEN USED IN A MANNER AND FOR A PURPOSE INTENDED BY SELLER. BUYER SHALL
DULY NOTIFY SELLER OF ANY SUCH CLAIMS, PROCEEDINGS OR SUITS, AND SELLER
SHALL, AT ITS OWN EXPENSE, DEFEND ALL CLAIMS, PROCEEDINGS OR SUITS
AGAINST BUYER, ITS SUCCESSORS, ASSIGNS, OFFICERS DIRECTORS, EMPLOYEES OR
AGENTS, IN WHICH ANY OF THE AFORESAID CLAIMS ARE ALLEGED. AT ITS OWN
EXPENSE, BUYER MAY BE REPRESENTED BY COUNSEL OF ITS OWN CHOOSING IN
CONNECTION WITH ANY SUCH CLAIM, PROCEEDING OR SUIT. IN THE EVENT THAT
IT IS DETERMINED THAT SELLER WAS NOT SOLELY RESPONSIBLE FOR THE ENTIRE
CLAIM, BUYER SHALL REIMBURSE SELLER FOR ANY EXPENSES SELLER HAS INCURRED
UNDER THIS PROVISION ON A PRO RATA BASIS IN PROPORTION TO EACH PARTY'S
OR THIRD PARTY'S SHARE OF THE RESPONSIBILITY FOR THE CLAIM. IN
ADDITION, IF SELLER FAILS TIMELY TO DELIVER PRODUCTS ORDERED HEREUNDER,
SELLER SHALL REIMBURSE BUYER FOR THE COST OF ANY WORK IN PROCESS FOR A
CUSTOMER THAT IS CANCELLED AS A RESULT OF SUCH DELAY OR PARTS IN BUYER'S
INVENTORY WHICH HAVE BECOME OBSOLETE AS A RESULT OF SUCH DELAY.
19. INSURANCE. SELLER AGREES TO PROCURE AND MAINTAIN, AT ITS OWN EXPENSE,
PRODUCTS LIABILITY AND OTHER APPROPRIATE INSURANCE COVERING SELLER'S
OBLIGATIONS HEREUNDER, AND INCLUDING BUYER AS ONE OF THE NAME INSUREDS.
SELLER AGREES TO FURNISH EVIDENCE OF SAID INSURANCE SATISFACTORY TO
BUYER AS BUYER MAY REQUEST FROM TIME TO TIME. ALL POLICIES OF INSURANCE
PROCURED OR MAINTAINED HEREUNDER (A) SHALL PROVIDE THAT COVERAGE
THEREUNDER SHALL NOT BE TERMINATED WITHOUT TEN (10) DAY'S WRITTEN NOTICE
TO BUYER, AND (B) SHALL APPLY SEPARATELY TO EACH INSURED AGAINST WHOM
CLAIM IS MADE OR SUIT IS BROUGHT AND SHALL CONTAIN NO PROVISION WHICH
EXCLUDES COVERAGE UNDER A CLAIM MADE BY ONE INSURED UNDER THE POLICY
AGAINST ANOTHER INSURED UNDER THE POLICY.
20. ASSIGNMENT; SUBCONTRACTING. THIS ORDER MAY NOT BE ASSIGNED OR
SUBCONTRACTED BY BUYER OR SELLER, IN WHOLE OR IN PART, EXCEPT AS
PROVIDED IN SECTION 5.8 OF THE SUPPLY AGREEMENT.
21. WAIVER. WAIVER BY EITHER PARTY OF ANY BREACH OF THESE TERMS AND
CONDITIONS SHALL NOT BE CONSTRUED AS A WAIVER OF ANY OTHER BREACH, AND
FAILURE TO EXERCISE ANY RIGHT ARISING FROM ANY DEFAULT HEREUNDER SHALL
NOT BE DEEMED A WAIVER OF SUCH RIGHT WHICH MAY BE EXERCISED AT ANY
SUBSEQUENT TIME.
22. SEVERABILITY. IN THE EVENT THAT ANY ONE OR MORE OF THESE TERMS OR
CONDITIONS IS HELD INVALID, ILLEGAL OR UNENFORCEABLE, SUCH PROVISION OR
PROVISIONS SHALL BE SEVERED AND THE REMAINING TERMS AND CONDITIONS SHALL
REMAIN BINDING AND EFFECTIVE.
23. CONTROLLING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN EXECUTED
AND DELIVERED IN THE STATE WHERE SELLER HAS ITS PRINCIPAL PLACE OF
BUSINESS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS AGREEMENT AND ALL
RIGHTS AND OBLIGATIONS HEREUNDER, INCLUDING MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE WHERE THE SELLER HAS ITS PRINCIPAL PLACE OF BUSINESS, INCLUDING
THE UNIFORM COMMERCIAL CODE AS ENACTED IN THAT JURISDICTION, WITHOUT
GIVING EFFECT TO THAT JURISDICTION'S CHOICE OF LAW PRINCIPLES.
<PAGE>
EXHIBIT C
DEFINITIONS
[ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
"RELATED COMPANY" AS USED HEREIN SHALL MEAN ANY CORPORATION OR OTHER LEGAL
ENTITY WHICH (A) OWNS A MAJORITY INTEREST IN OR CONTROLS ANY PARTY; (B) IS
CONTROLLED BY, OR THE MAJORITY INTEREST OF WHICH IS OWNED BY, ANY PARTY; OR
(C) OWNS A MAJORITY INTEREST IN, CONTROLS, IS CONTROLLED BY, OR THE MAJORITY
INTEREST OF WHICH IS OWNED BY, ANY CORPORATION OR OTHER LEGAL ENTITY DESCRIBED
IN CLAUSE (A) OR (B) OF THIS SENTENCE.
<PAGE>
EXHIBIT 1A-4
SHELDAHL SUPPLY AGREEMENT
SUPPLY AGREEMENT
THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THIS ___ DAY OF JULY,
1998, BY AND BETWEEN SHELDAHL, INC., 1150 SHELDAHL ROAD, NORTHFIELD, MINNESOTA
55057 ("SELLER") AND MODULAR INTERCONNECT SYSTEMS, L.L.C., 400 HULET DRIVE,
BLOOMFIELD HILLS, MICHIGAN 48302 ("BUYER").
RECITALS
A. SELLER DESIGNS, MANUFACTURES, DISTRIBUTES AND SELLS AUTOMOTIVE
FLEXIBLE CIRCUITS AND OTHER COMPONENT PARTS, AND HAS ENTERED INTO A JOINT
VENTURE WITH MOLEX INCORPORATED TO FORM AND OPERATE BUYER FOR THE PURPOSE OF
DEVELOPING AND SELLING MODULAR INTERCONNECT SYSTEMS.
B. BUYER DESIRES TO PURCHASE AUTOMOTIVE FLEXIBLE CIRCUITS AND OTHER
COMPONENT PARTS FROM SELLER, AND SELLER IS WILLING TO SELL SUCH PRODUCTS TO
BUYER ON THE TERMS AND CONDITIONS SET FORTH BELOW.
TERMS AND CONDITIONS
IN CONSIDERATION OF THE MUTUAL AGREEMENTS, PROMISES AND UNDERTAKINGS
HEREINAFTER SET FORTH, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS
FOLLOWS:
SECTION 1
PURCHASE OF PRODUCTS
1.1 REQUIREMENTS. SELLER SHALL SELL TO BUYER, AND BUYER SHALL
PURCHASE FROM SELLER, ALL OF BUYER'S REQUIREMENTS FOR THE AUTOMOTIVE FLEXIBLE
CIRCUITS AND COMPONENT PARTS SET FORTH IN EXHIBIT A ATTACHED HERETO
("PRODUCTS"). EXHIBIT A MAY BE CHANGED FROM TIME TO TIME UPON WRITTEN
AGREEMENT OF THE PARTIES, PROVIDED THAT AT SUCH TIME THE PARTIES SHALL
DETERMINE UNDER WHAT CONDITIONS SUCH ADDITIONAL PRODUCTS SHALL BE SUPPLIED BY
SELLER TO BUYER; PROVIDED, HOWEVER, THAT THE PARTIES SHALL REVIEW PRICE [
******* CONFIDENTIAL TREATMENT REQUESTED ] . BUYER AND SELLER AGREE THAT,
UPON THE REQUEST OF EITHER PARTY, BUYER AND SELLER SHALL REVIEW THE COST OF
PRODUCTS TO BUYER UNDER THIS AGREEMENT AND, IF AGREED TO BY BUYER AND SELLER
IN EACH OF THEIR SOLE DISCRETION, MODIFY SUCH PRICE. [ ******* CONFIDENTIAL
TREATMENT REQUESTED ] .
1.2 PRODUCT ESTIMATES. TO ASSIST SELLER IN PLANNING, BUYER SHALL
PROVIDE SELLER WITH ITS ANNUAL FORECAST OF ESTIMATED REQUIREMENTS FOR PRODUCTS
IN WRITING NOT LESS THAN NINETY (90) DAYS PRIOR TO THE NEXT SUCCEEDING YEAR
AND SHALL UPDATE SUCH ESTIMATE EACH MONTH ON A ROLLING QUARTERLY BASIS.
SELLER SHALL HAVE NO OBLIGATION TO SUPPLY PRODUCTS IN EXCESS OF 110% OF SUCH
ESTIMATED REQUIREMENTS DURING ANY QUARTERLY PERIOD, ALTHOUGH SELLER SHALL USE
ITS REASONABLE EFFORTS TO MEET BUYER'S UNEXPECTED INCREASED NEEDS BEYOND SUCH
AMOUNT.
SECTION 2
TERMS OF SALE
2.1 ORDERS. BUYER SHALL PLACE ALL ORDERS IN WRITING, AND ALL ORDERS
ARE SUBJECT TO APPROVAL AND ACCEPTANCE IN WRITING BY SELLER. NOTWITHSTANDING
ANY DIFFERENT TERMS WHICH MAY BE CONTAINED IN SELLER'S SALES OR BUYER'S ORDER
FORMS, ALL PURCHASES AND SALES OF PRODUCTS HEREUNDER SHALL BE MADE ON THE
TERMS AND CONDITIONS SET FORTH IN EXHIBIT B ATTACHED HERETO. IN THE EVENT OF
ANY INCONSISTENCES BETWEEN THIS AGREEMENT AND THE TERMS AND CONDITIONS IN
EXHIBIT B, THIS AGREEMENT SHALL BE CONTROLLING.
2.2 PRICES. THE PRICE OF THE PRODUCTS TO BUYER SHALL BE EQUAL TO [
******* CONFIDENTIAL TREATMENT REQUESTED ] . FOR PURPOSES OF THIS SECTION
2.2, "COST" IS DEFINED IN EXHIBIT C ATTACHED HERETO. BUYER SHALL HAVE THE
RIGHT TO AUDIT SELLER WITH RESPECT TO SUCH COSTS AT ALL REASONABLE TIMES, AND
SELLER SHALL COOPERATE WITH BUYER IN THE PERFORMANCE OF SUCH AUDIT BY MAKING
ITS BOOKS, RECORDS AND PERSONNEL REASONABLY AVAILABLE TO BUYER. IN THE EVENT
BUYER FINDS A DISCREPANCY, SELLER SHALL ADJUST THE PRICE OF PRODUCTS CHARGED
TO BUYER AND PROVIDE A REFUND OR CREDIT AGAINST FUTURE PURCHASES.
2.3 INCREASE IN PRICES. SELLER WILL HOLD THE PRICES FOR PRODUCTS
QUOTED BY SELLER FOR THE LIFE OF EACH OF THE BUYER'S PROGRAMS, EXCEPT FOR
MATERIAL COST INCREASES OR DECREASES IT RECEIVES FROM ITS SUPPLIERS, OR FOR A
MAXIMUM PERIOD OF FIVE (5) YEARS, WHICHEVER IS SHORTER.
2.4 PAYMENT. PAYMENT SHALL BE MADE BY BUYER NET THIRTY (30) DAYS FROM
THE DATE OF INVOICE OR DATE OF SHIPMENT, WHICHEVER IS LATER. A SERVICE CHARGE
OF ONE AND ONE-HALF PERCENT (1-1/2%) PER MONTH OR THE MAXIMUM PERMISSIBLE RATE
WILL BE ADDED TO ALL PAST DUE ACCOUNTS.
SECTION 3
PERFORMANCE REQUIREMENTS
3.1 PRODUCT DEVELOPMENT. THE PARTIES MAY ENGAGE IN THE DEVELOPMENT OF
NEW PRODUCTS TO BE SOLD BY SELLER TO BUYER HEREUNDER AS MUTUALLY AGREED UPON
BY OFFICERS OF BOTH PARTIES.
3.2 PRODUCT AVAILABILITY. THE PRODUCTS SUBJECT TO THIS AGREEMENT
SHALL BE THE PRODUCTS LISTED IN EXHIBIT A. DURING THE TERM OF THIS AGREEMENT,
SELLER MAY NOT MODIFY OR WITHDRAW A PRODUCT FROM THE MARKET EXCEPT WITH THE
PRIOR WRITTEN CONSENT OF BUYER AND THEN ONLY IN ACCORDANCE WITH THE
PRODUCTION, PART AND APPROVAL PROCESS ("PPAP") OPERATING PRINCIPLES IN EFFECT
FOR CUSTOMERS OF BUYER WHO ARE PURCHASING A PRODUCT, A COMPONENT OF WHICH
INCLUDES THAT PRODUCT.
3.3 AVAILABILITY OF DATA.
3.3.1 SELLER SHALL MAINTAIN DATA, TECHNICAL INFORMATION AND THE
LIKE RELATING TO THE MANUFACTURE, SAFETY, QUALITY CONTROL AND SPECIFICATIONS
OF THE PRODUCTS AT ITS HEADQUARTERS IN ACCORDANCE WITH ITS STANDARD PRACTICES
AND PROCEDURES, AND WILL MAKE SUCH DATA REASONABLY AVAILABLE TO BUYER ON
REQUEST TO THE EXTENT IT IS NON-CONFIDENTIAL OR PROPRIETARY TO SELLER.
3.3.2 ALL DISCLOSURES OF TRADE SECRETS, KNOW-HOW, FINANCIAL
INFORMATION, OR OTHER PROPRIETARY INFORMATION ("PROPRIETARY INFORMATION") MADE
BY EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT, AS WELL AS THE
TERMS OF THIS AGREEMENT, SHALL BE RECEIVED AND MAINTAINED IN CONFIDENCE BY THE
RECIPIENT (THE "RECIPIENT") AND EACH RECIPIENT SHALL TREAT ALL SUCH
PROPRIETARY INFORMATION AS THE CONFIDENTIAL PROPERTY OF THE DISCLOSING PARTY
AND SHALL NOT USE SAME OTHER THAN AS PERMITTED UNDER THIS AGREEMENT. THE
RECIPIENT SHALL NOT DISCLOSE SAME TO ANY OTHER PERSON EXCEPT:
3.3.2.1 TO THE EXTENT PERSONS DIRECTLY RESPONSIBLE FOR THE
PERFORMANCE OF THE OBLIGATIONS OF THIS AGREEMENT REQUIRE SUCH
INFORMATION IN CONNECTION WITH THE PERFORMANCE OF THE OBLIGATIONS OF
THIS AGREEMENT;
3.3.2.2 TO THE EXTENT PROFESSIONAL ADVISERS OF THE RECIPIENT
REQUIRE SUCH INFORMATION IN CONNECTION WITH PROVIDING THEIR SERVICES TO
SUCH PARTY; AND
3.3.2.3 TO THE EXTENT DISCLOSURES OF SUCH INFORMATION BY
EMPLOYEES OF THE RECIPIENT TO SUPPLIERS, DISTRIBUTORS, CUSTOMERS AND
OTHER PERSONS ARE NECESSARY OR APPROPRIATE FOR THE EFFECTIVE CARRYING ON
OF BUSINESS BY THE RECIPIENT PROVIDED SUCH SUPPLIERS, DISTRIBUTORS,
CUSTOMERS AND OTHER PERSONS EXECUTE A NON-DISCLOSURE AGREEMENT
PROHIBITING THE FURTHER DISCLOSURE OF SUCH INFORMATION.
3.3.3 NOTWITHSTANDING THE PROVISIONS OF SECTION 3.3.2, INFORMATION
DISCLOSED BY EITHER PARTY SHALL NOT BE CONSIDERED PROPRIETARY INFORMATION
PURSUANT TO THIS SECTION 3.3 TO THE EXTENT THAT:
3.3.3.1 SUCH INFORMATION IS REQUIRED BY LAW TO BE DISCLOSED BY
SUCH PARTY, PROVIDED THAT RECIPIENT SHALL (A) PROVIDE THE DISCLOSING
PARTY WITH PROMPT NOTICE OF SUCH DEMAND (AND IN ANY EVENT PRIOR TO
DISCLOSURE), (B) COOPERATE WITH THE DISCLOSING PARTY IN RESISTING SUCH
DISCLOSURE OR SEEKING SUITABLE PROTECTION PRIOR TO SUCH DISCLOSURE, AND
(C) DISCLOSE ONLY SUCH PROPRIETARY INFORMATION AS RECIPIENT IS COMPELLED
BY LAW TO DISCLOSE;
3.3.3.2 THE RECIPIENT IS ABLE TO SHOW THAT SUCH INFORMATION
WAS KNOWN TO THE RECIPIENT PRIOR TO SUCH DISCLOSURE;
3.3.3.3 THE RECIPIENT IS ABLE TO SHOW THAT SUCH INFORMATION
WAS INDEPENDENTLY DEVELOPED BY THE RECIPIENT WITHOUT USE OF ANY
CONFIDENTIAL INFORMATION OF THE OTHER PARTY;
3.3.3.4 THE RECIPIENT IS ABLE TO SHOW SUCH INFORMATION WAS
ACQUIRED BY THE RECIPIENT FROM A THIRD PARTY WITHOUT A CONTINUING
RESTRICTION ON USE; OR
3.3.3.5 SUCH INFORMATION WHICH WAS, OR BECOMES, PUBLICLY
AVAILABLE THROUGH NO BREACH OF THIS AGREEMENT BY THE RECIPIENT OR ITS
REPRESENTATIVES.
3.3.4 EACH PARTY WILL TAKE SUCH STEPS AS LIE WITHIN ITS POWER TO ASSURE
THAT ALL OF ITS MANAGERS, DIRECTORS, OFFICERS AND EMPLOYEES, OR OF THE
MANAGERS, DIRECTORS, OFFICERS AND EMPLOYEES OF ITS RELATED COMPANIES (AS
DEFINED IN THE L.L.C. AGREEMENT), TO WHOM PROPRIETARY INFORMATION IS DISCLOSED
TAKE ALL PROPER PRECAUTIONS TO PREVENT THE UNAUTHORIZED DISCLOSURE AND USE OF
THE CONFIDENTIAL INFORMATION REFERENCED IN THIS SECTION 3.3.
3.4 SELLER'S MARKS. EXCEPT FOR SUCH RIGHTS AS INURE TO BUYER IN
CONNECTION WITH ITS PURCHASE OF PRODUCTS, AND EXCEPT AS OTHERWISE AGREED BY
SELLER, BUYER IS GRANTED NO RIGHTS PURSUANT TO THIS AGREEMENT TO USE THE NAME,
SERVICE MARK AND/OR TRADEMARKS OF SELLER.
3.5 COVER. IN ADDITION TO BUYER'S ABILITY TO PURCHASE PRODUCTS
ELSEWHERE IN THE EVENT OF FORCE MAJEURE AS PROVIDED IN SECTION 5.10, BUYER
SHALL HAVE THE RIGHT TO CANCEL ANY ORDER WITH RESPECT TO ANY PRODUCTS NOT YET
DELIVERED AND PURCHASE PRODUCTS ELSEWHERE IN THE EVENT SELLER IS UNABLE
CONSISTENTLY TO SUPPLY BUYER WITH THE QUANTITY OF PRODUCTS ORDERED WITHIN THE
DELIVERY TIMES AGREED UPON, PROVIDED THAT BUYER PROVIDES SELLER WITH WRITTEN
NOTICE AND AN OPPORTUNITY TO CURE SUCH FAILURE PURSUANT TO SECTION 4.3.1.
SECTION 4
TERM AND TERMINATION
4.1 TERM. UNLESS TERMINATED SOONER AS PROVIDED IN SECTIONS 4.2, 4.3
OR 4.4 THE TERM OF THIS AGREEMENT SHALL COMMENCE ON THE DATE HEREOF AND
CONTINUE UNTIL THE LATER OF (I) [ ******* CONFIDENTIAL TREATMENT
REQUESTED ] AFTER DISSOLUTION, (II) [ ******* CONFIDENTIAL TREATMENT
REQUESTED ] AFTER THE BUY/SELL CLOSING IN WHICH SELLER'S MEMBERSHIP
INTEREST IN BUYER IS PURCHASED, (III) [ ******* CONFIDENTIAL TREATMENT
REQUESTED ] AFTER ANY OTHER PURCHASE OF SELLER'S MEMBERSHIP INTEREST IN
BUYER, OR (IV) [ ******* CONFIDENTIAL TREATMENT REQUESTED ] . FOR
PURPOSES OF THIS SECTION 4.1, "DISSOLUTION" AND "BUY-SELL CLOSING" SHALL
HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN SECTIONS 10.3 AND 14.4.,
RESPECTIVELY, OF THE LIMITED LIABILITY COMPANY AGREEMENT OF MODULAR
INTERCONNECT SYSTEMS, L.L.C., DATED AS OF __________________, 1998 ("L.L.C.
AGREEMENT").
4.2 AUTOMATIC TERMINATION. THIS AGREEMENT SHALL TERMINATE
AUTOMATICALLY IF SELLER IS DISSOLVED.
4.3 TERMINATION BY NOTICE. THE NON-BREACHING PARTY MAY TERMINATE THIS
AGREEMENT EFFECTIVE IMMEDIATELY BY WRITTEN NOTICE TO THE OTHER PARTY UPON
HAPPENING OF ANY OF THE FOLLOWING EVENTS:
4.3.1 EITHER PARTY FAILS TO FULFILL OR PERFORM ANY ONE OR MORE
OF THE DUTIES, OBLIGATIONS OR RESPONSIBILITIES UNDERTAKEN BY THAT PARTY HEREIN
AND DOES NOT CURE THAT FAILURE WITHIN ONE HUNDRED EIGHTY (180) DAYS OF RECEIPT
OF WRITTEN NOTICE THEREOF FROM THE NON-BREACHING PARTY.
4.3.2 THE OTHER PARTY'S INABILITY, OR ITS ADMISSION IN WRITING
OF ITS INABILITY, TO PAY DEBTS AS THEY MATURE; OR THE OTHER PARTY'S
INSOLVENCY; OR APPOINTMENT BY A COURT OF A TEMPORARY OR PERMANENT RECEIVER,
TRUSTEE OR CUSTODIAN FOR THE BUSINESS OF THE OTHER PARTY; OR AN ASSIGNMENT FOR
THE BENEFIT OF CREDITORS OF THE OTHER PARTY; OR
4.3.3 THE ASSIGNMENT OR ATTEMPTED ASSIGNMENT, EXCEPT AS
PERMITTED BY SECTION 5.7 HEREOF, BY THE OTHER PARTY OF ANY INTEREST IN THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE NON-BREACHING PARTY.
4.4 ASSIGNEE RIGHT TO TERMINATE. IN THE EVENT THAT THIS AGREEMENT IS
ASSIGNED TO MOLEX INCORPORATED IN CONNECTION WITH THE DISSOLUTION, BUY/SELL
CLOSING OR OTHER PURCHASE OF SELLER'S MEMBERSHIP INTEREST IN BUYER, MOLEX
INCORPORATED MAY TERMINATE THIS AGREEMENT AT ANY TIME THEREAFTER UPON NOT LESS
THAN THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO SELLER.
4.5 SELLER'S OBLIGATIONS.
4.5.1 SELLER'S OBLIGATIONS TO SUPPLY PRODUCTS TO BUYER AS
PROVIDED IN SECTION 4.1 SHALL BE SUBJECT TO THE FOLLOWING: PRODUCTS SHALL BE
SUPPLIED TO BUYER, OR TO MOLEX INCORPORATED IF THIS AGREEMENT IS ASSIGNED TO
MOLEX INCORPORATED, [ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
4.5.2 IN THE EVENT OF TERMINATION OF THIS AGREEMENT FOR ANY
REASON, BUYER SHALL IMMEDIATELY PAY TO SELLER ALL AMOUNTS DUE TO SELLER UNDER
ANY OUTSTANDING PURCHASE ORDERS.
SECTION 5
GENERAL PROVISIONS
5.1 RELATIONSHIP. THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT IS
THAT OF BUYER AND SELLER. NEITHER BUYER NOR ANY OF ITS AGENTS OR EMPLOYEES
SHALL BE DEEMED TO BE THE REPRESENTATIVE, EMPLOYEE OR AGENT OF SELLER FOR ANY
PURPOSE WHATSOEVER, AND THE RELATIONSHIP OF BUYER TO SELLER IS THAT OF AN
INDEPENDENT CONTRACTOR, AND THEY OR ANY OF THEM SHALL HAVE NO RIGHT OR
AUTHORITY TO ASSUME OR CREATE ANY OBLIGATION OF ANY KIND, EXPRESSED OR
IMPLIED, ON BEHALF OF SELLER.
5.2 MODIFICATIONS, AMENDMENTS AND WAIVERS. THIS AGREEMENT MAY NOT BE
MODIFIED OR AMENDED, INCLUDING BY CUSTOM, USAGE OF TRADE OR COURSE OF DEALING
OR PERFORMANCE, EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY DULY AUTHORIZED
OFFICERS OF BOTH OF THE PARTIES HERETO. PERFORMANCE OF ANY OBLIGATION
REQUIRED OF A PARTY HEREUNDER MAY BE WAIVED ONLY BY A WRITTEN WAIVER SIGNED BY
A DULY AUTHORIZED OFFICER OF THE OTHER PARTY, WHICH WAIVER SHALL BE EFFECTIVE
ONLY WITH RESPECT TO THE SPECIFIC OBLIGATION DESCRIBED THEREIN. THE WAIVER BY
EITHER PARTY OF A BREACH OF ANY OBLIGATION OF THE OTHER SHALL NOT OPERATE OR
BE CONSTRUED AS A WAIVER OF ANY SUBSEQUENT BREACH OF THE SAME PROVISION OR ANY
OTHER PROVISION OF THIS AGREEMENT, NOR A WAIVER BY THAT PARTY OF ITS RIGHT AT
ANY TIME THEREAFTER TO REQUIRE STRICT COMPLIANCE WITH ALL TERMS AND CONDITIONS
OF THIS AGREEMENT.
5.3 COMPLIANCE WITH LAW. THE PARTIES SHALL COMPLY WITH ALL APPLICABLE
LAWS AND REGULATIONS IN PERFORMING THEIR RESPECTIVE DUTIES HEREUNDER.
5.4 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY AND ITS SUCCESSORS OR ASSIGNS, FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR
DAMAGED DATA OR DOCUMENTATION, OR OTHER LIABILITIES TO THIRD PARTIES ARISING
FROM ANY SOURCE.
5.5 SURVIVABILITY. ALL OBLIGATIONS OF THE PARTIES WHICH EXPRESSLY OR
BY THEIR NATURE SURVIVE TERMINATION OR EXPIRATION OR TRANSFER OF THIS
AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT SUBSEQUENT TO AND
NOTWITHSTANDING SUCH TERMINATION OR EXPIRATION OR TRANSFER AND UNTIL THEY ARE
SATISFIED OR BY THEIR NATURE EXPIRE.
5.6 SEVERABILITY. IN THE EVENT THAT ANY PROVISION HEREOF IS FOUND
INVALID OR UNENFORCEABLE PURSUANT TO JUDICIAL DECREE OR DECISION, THE
REMAINDER OF THIS AGREEMENT SHALL REMAIN VALID AND ENFORCEABLE ACCORDING TO
ITS TERMS.
5.7 ASSIGNMENT; SUBCONTRACTING. EXCEPT AS PROVIDED BELOW, NEITHER
PARTY MAY DELEGATE ITS DUTIES HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY AND THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY EITHER PARTY.
ANY ATTEMPT BY EITHER PARTY TO DELEGATE ANY OF ITS DUTIES OR TO ASSIGN ANY OF
ITS RIGHTS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY
SHALL BE NULL AND VOID. NOTWITHSTANDING THE FOREGOING, UPON PRIOR WRITTEN
NOTICE TO THE OTHER PARTY, EITHER PARTY SHALL BE ENTITLED TO ASSIGN ANY PART
OR ALL OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ITS RIGHTS AND
OBLIGATIONS CONTAINED HEREIN) TO A RELATED COMPANY, PROVIDED THAT THE ASSIGNOR
CONTINUES TO REMAIN LIABLE AND RESPONSIBLE TO THE OTHER PARTY FOR SUCH RELATED
COMPANY'S PERFORMANCE HEREUNDER. FOR PURPOSES OF THIS SECTION 5.7, "RELATED
COMPANY" IS DEFINED IN EXHIBIT C ATTACHED HERETO. BUYER SHALL ASSIGN THIS
AGREEMENT TO MOLEX INCORPORATED AT MOLEX'S REQUEST UPON DISSOLUTION, THE
BUY/SELL CLOSING OR OTHER PURCHASE OF SELLER'S MEMBERSHIP INTEREST IN BUYER,
PROVIDED THAT MOLEX INCORPORATED ASSUMES BUYER'S OBLIGATIONS HEREUNDER AFTER
THE DATE OF ASSIGNMENT, EXCEPT THAT THE REQUIREMENTS ASPECTS OF THIS AGREEMENT
SHALL BE LIMITED TO THE SPECIFIC PRODUCTS AND APPLICATIONS OF BUYER AS OF SUCH
DATE. SELLER MAY SUBCONTRACT ITS PRODUCTION OBLIGATIONS HEREUNDER ONLY IF (I)
THE COST OF THE PRODUCT IS NOT AFFECTED, (II) THE CUSTOMER PURCHASING SUCH
PRODUCT APPROVES THE SUBCONTRACTING PURSUANT TO THE PPAP OPERATING PRINCIPLES
IN EFFECT FOR THAT CUSTOMER, AND (III) BUYER'S PRIOR WRITTEN CONSENT IS
OBTAINED, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
5.8 BINDING EFFECT. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND
BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE LEGAL REPRESENTATIVES,
SUCCESSORS AND PERMITTED ASSIGNS.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD
TO ITS CONFLICT OF LAWS PROVISIONS.
5.10 FORCE MAJEURE. NO LIABILITY HEREUNDER SHALL RESULT TO EITHER
PARTY FROM DELAY IN PERFORMANCE OR NON-PERFORMANCE CAUSED BY CIRCUMSTANCES
BEYOND THE REASONABLE CONTROL OF THAT PARTY, INCLUDING, BUT NOT LIMITED TO,
ACTS OF GOD, FIRE, FLOOD OR OTHER CASUALTY, WAR, GOVERNMENT ACTION, ACCIDENT,
LABOR STRIKES OR OTHER DIFFICULTY, OR SHORTAGE OF OR INABILITY TO OBTAIN FUEL,
ENERGY, MATERIAL, EQUIPMENT OR TRANSPORTATION. IN THE EVENT OF ANY DELAY IN A
PARTY'S PERFORMANCE DUE IN WHOLE OR IN PART TO ANY CAUSE BEYOND THAT PARTY'S
REASONABLE CONTROL, THAT PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY IN
WRITING OF SUCH EVENT AND SHALL HAVE SUCH ADDITIONAL TIME FOR PERFORMANCE AS
MAY BE REASONABLY NECESSARY UNDER THE CIRCUMSTANCES. NOTWITHSTANDING THE
FOREGOING, IF SUCH EVENT CONTINUES FOR MORE THAN THIRTY (30) DAYS BUYER MAY
CANCEL ANY ORDER WITH RESPECT TO ANY PRODUCTS NOT DELIVERED AND PURCHASE
PRODUCTS ELSEWHERE, AND BUYER SHALL BE UNDER NO OBLIGATION TO ACCEPT OR PAY
FOR THE SAME OR COMPENSATE SELLER FOR ANY EXPENSE WHICH IT MAY HAVE INCURRED.
5.11 NOTICES. UNLESS OTHERWISE SPECIFICALLY PROVIDED, ALL NOTICES
REQUIRED OR PERMITTED BY THIS AGREEMENT SHALL BE IN WRITING AND MAY BE
DELIVERED PERSONALLY, OR SENT BY FACSIMILE, BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, OR BY OVERNIGHT COURIER SERVICE, TO THE PARTIES AT THE FOLLOWING
ADDRESSES OR FACSIMILE NUMBERS, UNLESS THE PARTIES ARE SUBSEQUENTLY NOTIFIED
OF ANY CHANGE OF ADDRESS OR FACSIMILE NUMBER IN ACCORDANCE WITH THIS SECTION
5.12:
IF TO SELLER:
SHELDAHL, INC.
1150 SHELDAHL ROAD
NORTHFIELD, MINNESOTA 55057
ATTN: ED LUNDSTROM
FACSIMILE: (507) 663-8234
IF TO BUYER:
MODULAR INTERCONNECT SYSTEMS, L.L.C.
400 HULET DRIVE
BLOOMFIELD HILLS, MICHIGAN 48302
ATTN: BOB FUERST
FACSIMILE: (248) 322-8020
WITH A COPY TO:
MOLEX INCORPORATED
2222 WELLINGTON COURT
LISLE, ILLINOIS 60532
ATTN: MARTIN SLARK
FACSIMILE: (630) 969-1352
ANY NOTICE SHALL BE DEEMED TO HAVE BEEN RECEIVED AS FOLLOWS: (1) BY PERSONAL
DELIVERY, UPON RECEIPT; (2) BY FACSIMILE, ONE (1) BUSINESS DAY AFTER
TRANSMISSION; (3) BY OVERNIGHT COMMERCIAL DELIVERY SERVICE, ONE (1) BUSINESS
DAY AFTER DELIVERY TO SUCH COMMERCIAL DELIVERY SERVICE; OR (4) BY CERTIFIED
MAIL, THREE (3) BUSINESS DAYS AFTER MAILING. IF NOTICE IS SENT BY FACSIMILE,
A CONFIRMING COPY OF THE NOTICE SHALL ALSO BE SENT BY MAIL.
5.12 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN TWO (2) OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, AND BOTH OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
5.13 ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH THE EXHIBITS
HERETO, CONSTITUTES THE ENTIRE UNDERSTANDING AND CONTRACT BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PRIOR AND
CONTEMPORANEOUS, ORAL OR WRITTEN REPRESENTATIONS, COMMUNICATIONS,
UNDERSTANDINGS AND AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF. THE PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER OF THE PARTIES
IS ENTERING INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS OR
PROMISES NOT EXPRESSLY CONTAINED HEREIN.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT ON
THE DATE SPECIFIED ABOVE.
SELLER:
SHELDAHL, INC.
BY:
ITS:
BUYER:
MODULAR INTERCONNECT SYSTEMS, L.L.C.
BY:
ITS:
<PAGE>
EXHIBIT A
PRODUCTS
[ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
<PAGE>
EXHIBIT B
TERMS AND CONDITIONS OF PURCHASE AND SALE
ALL PURCHASES AND SALES OF PRODUCTS UNDER THIS SUPPLY AGREEMENT ARE SUBJECT TO
THE FOLLOWING TERMS AND CONDITIONS:
1. AGREEMENT. THESE TERMS AND CONDITIONS SHALL GOVERN ALL PURCHASES AND
SALES OF PRODUCTS UNDER THE SUPPLY AGREEMENT BETWEEN SELLER AND BUYER.
NO TERMS OR CONDITIONS IN ANY WAY ADDING TO, MODIFYING OR OTHERWISE
CHANGING THE PROVISIONS STATED HEREIN SHALL BE BINDING UPON EITHER PARTY
UNLESS MADE IN WRITING AND SIGNED AND APPROVED BY AN OFFICER OF BOTH
PARTIES. THESE TERMS WILL NOT BE MODIFIED BY SELLER'S SHIPMENT OF
PRODUCTS FOLLOWING RECEIPT OF BUYER'S PURCHASE ORDER, SHIPPING REQUEST
OR SIMILAR FORMS CONTAINING PRINTED TERMS AND CONDITIONS CONFLICTING OR
INCONSISTENT WITH THE TERMS HEREIN, OR BY SELLER'S USE OF ITS OWN SALES
FORMS WITH PRINTED TERMS AND CONDITIONS CONFLICTING OR INCONSISTENT WITH
THE TERMS HEREIN.
2. ORDERS SUBJECT TO ACCEPTANCE. ALL ORDERS ARE SUBJECT TO ACCEPTANCE IN
WRITING BY SELLER AT ITS PRINCIPAL OFFICE. AN ACKNOWLEDGEMENT OF EACH
ORDER MUST BE RETURNED BY SELLER TO BUYER PROMPTLY ALTER THE RECEIPT OF
SAME, AND MUST CONTAIN PRICE AND DEFINITE DELIVERY DATA. SIGNING OF AN
ACKNOWLEDGEMENT, OR HOLDING AN ORDER TEN (10) DAYS OR LONGER, SHALL
CONSTITUTE AN ACCEPTANCE OF AN ORDER.
3. PRICES. ALL PRICES ARE SET FORTH IN SECTION 2.2 OF THE SUPPLY AGREEMENT
AND ARE F.O.B. FACTORY, AND EXCLUDE ALL FEDERAL, STATE OR LOCAL TAXES.
ALL TAXES AND EXCISES OF ANY NATURE WHATSOEVER NOW OR HEREAFTER LEVIED
BY GOVERNMENTAL AUTHORITY, WHETHER FEDERAL, STATE OR LOCAL, EITHER
DIRECTLY OR INDIRECTLY, UPON THE SALE OR TRANSPORTATION OF ANY GOODS
COVERED HEREBY, SHALL BE PAID AND BORNE BY BUYER.
4. PAYMENT. ALL ACCOUNTS SHALL BE PAID NET AT SELLER'S PRINCIPAL OFFICE
WITHIN THIRTY (30) DAYS AFTER THE DATE OF INVOICE OR DATE OF SHIPMENT,
WHICHEVER IS LATER. A SERVICE CHARGE OF THE LESSER OF 1 1/2% PER MONTH OR
THE MAXIMUM PERMISSIBLE RATE WILL BE ADDED TO ALL PAST DUE ACCOUNTS.
5. MATERIAL AND MANUFACTURE. ALL MATERIAL MUST CONFORM STRICTLY TO
SPECIFICATIONS. ON ANY NEW PARTS, A SAMPLE MUST BE APPROVED BY BUYER
BEFORE SELLER PROCEEDS WITH MANUFACTURE OF A QUANTITY RUN.
6. QUANTITY. SELLER MUST FURNISH THE ENTIRE QUANTITY ORDERED HEREUNDER
AND SAID QUANTITY CANNOT BE VARIED BY SELLER UNLESS BUYER'S DIRECTOR OF
PURCHASING AGREES IN WRITING TO ACCEPT A DIFFERENT QUANTITY. BUYER
RESERVES THE RIGHT TO REJECT ANY UNAUTHORIZED QUANTITIES AND TO RETURN
SAME TO SELLER AT SELLER'S RISK AND EXPENSE. NOTWITHSTANDING THE
FOREGOING, SELLER SHALL HAVE THE OPTION, UPON WRITTEN NOTICE TO BUYER,
OF MANUFACTURING, SHIPPING AND BILLING A PORTION OF BUYER'S ORDER AND
LATER, WITHIN THE TIME SPECIFIED IN BUYER'S ORDER, MANUFACTURING,
SHIPPING AND BILLING THE REMAINDER OF ANY SUCH ORDER.
7. DELIVERY TERMS. SELLER WILL ATTEMPT TO MEET THE REQUIREMENTS OF
BUYER'S DELIVERY SCHEDULE BUT SHALL BE OBLIGATED ONLY TO THE DELIVERY
SCHEDULE SHOWN ON THE ORDER ACKNOWLEDGMENT. ALL DELIVERY EXPENSES,
INCLUDING TRANSPORTATION, INSURANCE AND OTHER SHIPPING COSTS, SHALL BE
FOR BUYER'S ACCOUNT.
8. TITLE/RISK OF LOSS. DELIVERY OF GOODS TO CARRIER SHALL BE DEEMED
DELIVERY TO BUYER, AND THEREUPON TITLE TO SUCH GOODS, AND RISK OF LOSS
OR DAMAGE, SHALL BE BUYER'S. ANY CLAIM BY BUYER AGAINST SELLER FOR
SHORTAGE OR DAMAGE OCCURRING PRIOR TO SUCH DELIVERY MUST BE MADE IN
WRITING WITHIN THIRTY (30) DAYS AFTER RECEIPT OF SHIPMENT AND
ACCOMPANIED BY ORIGINAL TRANSPORTATION BILL SIGNED BY CARRIER NOTING
THAT CARRIER RECEIVED GOODS FROM SELLER IN THE CONDITION CLAIMED. ANY
CLAIM BY BUYER FOR DAMAGE OCCURRING DURING SHIPMENT SHALL BE MADE
DIRECTLY AGAINST THE FREIGHT CARRIER, WITH A COPY OF SUCH CLAIM PROMPTLY
FORWARDED TO SELLER.
9. BUYER'S INSPECTION. ALL PRODUCTS PURCHASED HEREUNDER WILL BE SUBJECT
TO BUYER'S RIGHT OF INSPECTION AND REJECTION. BUYER SHALL HAVE THIRTY
(30) DAYS FROM RECEIPT OF THE PRODUCTS TO INSPECT THEM AND TO NOTIFY
SELLER OF ANY NONCONFORMANCE. BUYER MAY REJECT ANY PRODUCTS WHICH DO
NOT CONFORM TO THE TERMS OF THIS AGREEMENT OR ANY ORDER, OR, WITH
SELLER'S CONSENT, MAY REPAIR OR CORRECT THEM AT SELLER'S COST. IF
REJECTED, THEY WILL BE HELD FOR DISPOSITION AT SELLER'S RISK AND
EXPENSE. ANY PAYMENT ON ACCOUNT THEREOF WILL BE PROMPTLY REFUNDED BY
SELLER. ANY INSPECTION BY BUYER OF PRODUCTS AT SELLER'S PLANT DURING OR
AFTER MANUFACTURE, WHETHER OR NOT SUCH INSPECTION AT SAID PLANT IS
PROVIDED FOR BY THE TERMS HEREOF, SHALL BE PROVISIONAL ONLY, AND SHALL
NOT CONSTITUTE FINAL INSPECTION, NOR BE CONSTRUED AS A WAIVER OF THE
FOREGOING RIGHT OF INSPECTION AND REJECTION AFTER RECEIPT OF SAME.
10. BUYER'S CHANGES. BUYER SHALL HAVE THE RIGHT AT ANY TIME TO MAKE CHANGES
IN DRAWINGS, SPECIFICATIONS, OR BOTH OF THEM, RELATING TO ANY ORDER BY
GIVING SELLER WRITTEN NOTICE OF SUCH CHANGE. IF SUCH CHANGES CAUSE AN
INCREASE OR DECREASE IN THE AMOUNT DUE UNDER AN ORDER OR IN THE TIME
REQUIRED FOR SELLER'S PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE
BY MUTUAL AGREEMENT BETWEEN THE PARTIES HERETO.
11. CANCELLATION. BUYER RESERVES THE RIGHT TO CANCEL ALL OR ANY PART OF THE
UNDELIVERED PORTION OF ANY ORDER IF SELLER DOES NOT MAKE DELIVERIES AS
SPECIFIED, TIME BEING OF THE ESSENCE OF THIS CONTRACT, OR IF SELLER
BREACHES ANY OF THE TERMS HEREOF INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF SELLER. ANY PROVISIONS HEREIN FOR DELIVERY OF PRODUCTS OR
THE RENDERING OF SERVICES BY INSTALLMENTS SHALL NOT BE CONSTRUED AS
MAKING THE OBLIGATIONS OF SELLER SEVERABLE.
12. BUYER'S TERMINATION. BUYER MAY AT ANY TIME FOR ITS CONVENIENCE
TERMINATE ANY ORDER, IN WHOLE OR IN PART, BY WRITTEN OR BY FACSIMILE
NOTICE, OR BY VERBAL NOTICE CONFIRMED IN WRITING. IF AN ORDER IS
TERMINATED FOR BUYER'S CONVENIENCE, ANY CLAIM OF SELLER SHALL BE SETTLED
ON THE BASIS OF THE REASONABLE COSTS IT HAS INCURRED IN THE PERFORMANCE
OF THAT ORDER, PLUS FIVE PERCENT (5%).
13. FORCE MAJEURE. NO LIABILITY HEREUNDER SHALL RESULT TO EITHER PARTY FROM
DELAY IN PERFORMANCE OR NON-PERFORMANCE CAUSED BY CIRCUMSTANCES BEYOND
THE REASONABLE CONTROL OF THAT PARTY, INCLUDING, BUT NOT LIMITED TO,
ACTS OF GOD, FIRE, FLOOD OR OTHER CASUALTY, WAR, GOVERNMENT ACTION,
ACCIDENT, LABOR STRIKES OR OTHER DIFFICULTY, OR SHORTAGE OF OR INABILITY
TO OBTAIN FUEL, ENERGY, MATERIAL, EQUIPMENT OR TRANSPORTATION. IN THE
EVENT OF ANY DELAY IN A PARTY'S PERFORMANCE DUE IN WHOLE OR IN PART TO
ANY CAUSE BEYOND THAT PARTY'S REASONABLE CONTROL, THAT PARTY SHALL
PROMPTLY NOTIFY THE OTHER PARTY IN WRITING OF SUCH EVENT AND SHALL HAVE
SUCH ADDITIONAL TIME FOR PERFORMANCE AS MAY BE REASONABLY NECESSARY
UNDER THE CIRCUMSTANCES. NOTWITHSTANDING THE FOREGOING, IF SUCH EVENT
CONTINUES FOR MORE THAN THIRTY (30) DAYS BUYER MAY CANCEL ANY ORDER WITH
RESPECT TO ANY PRODUCTS NOT DELIVERED AND PURCHASE PRODUCTS ELSEWHERE,
AND BUYER SHALL BE UNDER NO OBLIGATION TO ACCEPT OR PAY FOR THE SAME OR
COMPENSATE SELLER FOR ANY EXPENSE WHICH IT MAY HAVE INCURRED.
14 WARRANTY AND DISCLAIMER. SELLER WARRANTS TO BUYER THAT ANY PRODUCTS
SOLD HEREUNDER WILL BE FREE FROM DEFECTS IN WORKMANSHIP AND MATERIALS
UNDER NORMAL CONDITIONS OF USE FOR SIX (6) MONTHS FROM THE DATE OF
DELIVERY TO BUYER. THIS WARRANTY WILL SURVIVE ACCEPTANCE OF THE
PRODUCTS.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES
WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS.
SELLER'S LIABILITY AND BUYER'S SOLE REMEDY HEREUNDER FOR A BREACH OF
WARRANTY IS EXPRESSLY LIMITED, AT SELLER'S ELECTION, TO REPAIR OR
REPLACEMENT (IN THE FORM ORIGINALLY SHIPPED) OF PRODUCTS NOT COMPLYING
WITH THIS AGREEMENT, OR TO THE REPAYMENT OF, OR CREDITING BUYER WITH, AN
AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH PRODUCTS.
ANY CLAIM BY BUYER WITH REFERENCE TO THE PRODUCTS SOLD HEREUNDER FOR ANY
CAUSE SHALL BE DEEMED WAIVED BY BUYER UNLESS SUBMITTED TO SELLER IN
WRITING WITHIN NINETY (90) DAYS FROM THE DATE BUYER DISCOVERED, OR
SHOULD HAVE DISCOVERED, ANY CLAIMED BREACH.
15. LIMITATION OF REMEDIES. SELLER SHALL NOT BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES, DIRECTLY OR INDIRECTLY
ARISING FROM THE SALE, HANDLING OR USE OF THE PRODUCTS, OR FROM ANY
OTHER CAUSE WITH RESPECT TO THE PRODUCTS OR ANY ORDER, WHETHER SUCH
CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT
LIABILITY IN TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY.
16. SECURITY. IF BUYER FAILS TO FULFILL THE TERMS OF PAYMENT OR IF SELLER
SHALL HAVE ANY DOUBT AT ANY TIME AS TO BUYER'S FINANCIAL CONDITION,
SELLER MAY DECLINE TO MAKE FURTHER DELIVERIES EXCEPT UPON RECEIPT OF
CASH OR SATISFACTORY SECURITY. THIS REQUIREMENT WILL NOT RELEASE BUYER
FROM ANY PREVIOUS OBLIGATION. SELLER'S RIGHTS UNDER THIS SECTION SHALL
BE IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES AVAILABLE TO SELLER UPON
BUYER'S DEFAULT.
17. COMPLIANCE WITH LAWS. IN FULFILLING THIS ORDER, SELLER SHALL COMPLY
WITH ALL APPLICABLE LAWS AND GOVERNMENTAL REGULATIONS AND ORDERS,
FEDERAL, STATE, LOCAL AND FOREIGN. WITH RESPECT TO GOODS PRODUCED IN
THE UNITED STATES, SELLER SPECIFICALLY WARRANTS THAT ALL GOODS FURNISHED
HEREUNDER WILL BE PRODUCED AND SOLD IN COMPLIANCE WITH ALL APPLICABLE
REQUIREMENTS OF THE FAIR LABOR STANDARDS ACT, AS AMENDED, INCLUDING
SECTION 6, 7 AND 12, AND THE REGULATIONS AND ORDERS ISSUED UNDER SECTION
14 THEREOF, AND THAT IT WILL CERTIFY SUCH COMPLIANCE ON EACH INVOICE
SUBMITTED IN CONNECTION WITH THIS ORDER.
18. SELLER'S INDEMNIFICATION. SELLER SHALL INDEMNIFY AND HOLD HARMLESS
BUYER, AND ITS SUCCESSORS, ASSIGNS, EMPLOYEES AND AGENTS, FROM AND
AGAINST ALL CLAIMS, DIRECT LOSSES, PENALTIES, DAMAGES (EXCLUDING
INCIDENTAL AND CONSEQUENTIAL DAMAGES), COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) ARISING OUT OF (A) ANY ALLEGED OR ACTUAL
INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF ANY LETTERS PATENT OR TRADE
SECRETS OR TRADEMARKS OR SERVICE MARKS BY REASON OF THE USE, SALE OR
LEASE OF ANY PRODUCTS PURCHASED HEREUNDER, EXCEPTING UNPATENTED STAPLE
ARTICLES OF COMMERCE, PRODUCTS MANUFACTURED IN ACCORDANCE WITH BUYER'S
DESIGN, OR OTHERWISE NON-INFRINGING PRODUCTS INCORPORATED INTO A PRODUCT
OF BUYER, (B) ANY ALLEGED OR ACTUAL DEFECTS IN THE PRODUCTS, WHETHER
LATENT OR PATENT, AND WHETHER OF DESIGN, WARNING OR MANUFACTURE, (BUT
EXCLUDING ANY CLAIMS ARISING OUT OF DESIGNS PROVIDED BY BUYER), OR (C)
ANY ALLEGED OR ACTUAL FAILURE OF THE PRODUCTS TO INCLUDE NECESSARY
SAFETY FEATURES OR OTHERWISE CONFORM TO THE REQUIREMENTS OF ANY FEDERAL,
STATE OR LOCAL HEALTH OR SAFETY LAW, STANDARD REGULATION OR ORDINANCE,
WHEN USED IN A MANNER AND FOR A PURPOSE INTENDED BY SELLER. BUYER SHALL
DULY NOTIFY SELLER OF ANY SUCH CLAIMS, PROCEEDINGS OR SUITS, AND SELLER
SHALL, AT ITS OWN EXPENSE, DEFEND ALL CLAIMS, PROCEEDINGS OR SUITS
AGAINST BUYER, ITS SUCCESSORS, ASSIGNS, OFFICERS DIRECTORS, EMPLOYEES OR
AGENTS, IN WHICH ANY OF THE AFORESAID CLAIMS ARE ALLEGED. AT ITS OWN
EXPENSE, BUYER MAY BE REPRESENTED BY COUNSEL OF ITS OWN CHOOSING IN
CONNECTION WITH ANY SUCH CLAIM, PROCEEDING OR SUIT. IN THE EVENT THAT
IT IS DETERMINED THAT SELLER WAS NOT SOLELY RESPONSIBLE FOR THE ENTIRE
CLAIM, BUYER SHALL REIMBURSE SELLER FOR ANY EXPENSES SELLER HAS INCURRED
UNDER THIS PROVISION ON A PRO RATA BASIS IN PROPORTION TO EACH PARTY'S
OR THIRD PARTY'S SHARE OF THE RESPONSIBILITY FOR THE CLAIM. IN
ADDITION, IF SELLER FAILS TIMELY TO DELIVER PRODUCTS ORDERED HEREUNDER,
SELLER SHALL REIMBURSE BUYER FOR THE COST OF ANY WORK IN PROCESS FOR A
CUSTOMER THAT IS CANCELLED AS A RESULT OF SUCH DELAY OR PARTS IN BUYER'S
INVENTORY WHICH HAVE BECOME OBSOLETE AS A RESULT OF SUCH DELAY.
19. INSURANCE. SELLER AGREES TO PROCURE AND MAINTAIN, AT ITS OWN EXPENSE,
PRODUCTS LIABILITY AND OTHER APPROPRIATE INSURANCE COVERING SELLER'S
OBLIGATIONS HEREUNDER, AND INCLUDING BUYER AS ONE OF THE NAME INSUREDS.
SELLER AGREES TO FURNISH EVIDENCE OF SAID INSURANCE SATISFACTORY TO
BUYER AS BUYER MAY REQUEST FROM TIME TO TIME. ALL POLICIES OF INSURANCE
PROCURED OR MAINTAINED HEREUNDER (A) SHALL PROVIDE THAT COVERAGE
THEREUNDER SHALL NOT BE TERMINATED WITHOUT TEN (10) DAY'S WRITTEN NOTICE
TO BUYER, AND (B) SHALL APPLY SEPARATELY TO EACH INSURED AGAINST WHOM
CLAIM IS MADE OR SUIT IS BROUGHT AND SHALL CONTAIN NO PROVISION WHICH
EXCLUDES COVERAGE UNDER A CLAIM MADE BY ONE INSURED UNDER THE POLICY
AGAINST ANOTHER INSURED UNDER THE POLICY.
20. ASSIGNMENT; SUBCONTRACTING. THIS ORDER MAY NOT BE ASSIGNED OR
SUBCONTRACTED BY BUYER OR SELLER, IN WHOLE OR IN PART, EXCEPT AS
PROVIDED IN SECTION 5.8 OF THE SUPPLY AGREEMENT.
21. WAIVER. WAIVER BY EITHER PARTY OF ANY BREACH OF THESE TERMS AND
CONDITIONS SHALL NOT BE CONSTRUED AS A WAIVER OF ANY OTHER BREACH, AND
FAILURE TO EXERCISE ANY RIGHT ARISING FROM ANY DEFAULT HEREUNDER SHALL
NOT BE DEEMED A WAIVER OF SUCH RIGHT WHICH MAY BE EXERCISED AT ANY
SUBSEQUENT TIME.
22. SEVERABILITY. IN THE EVENT THAT ANY ONE OR MORE OF THESE TERMS OR
CONDITIONS IS HELD INVALID, ILLEGAL OR UNENFORCEABLE, SUCH PROVISION OR
PROVISIONS SHALL BE SEVERED AND THE REMAINING TERMS AND CONDITIONS SHALL
REMAIN BINDING AND EFFECTIVE.
23. CONTROLLING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN EXECUTED
AND DELIVERED IN THE STATE WHERE SELLER HAS ITS PRINCIPAL PLACE OF
BUSINESS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS AGREEMENT AND ALL
RIGHTS AND OBLIGATIONS HEREUNDER, INCLUDING MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE WHERE THE SELLER HAS ITS PRINCIPAL PLACE OF BUSINESS, INCLUDING
THE UNIFORM COMMERCIAL CODE AS ENACTED IN THAT JURISDICTION, WITHOUT
GIVING EFFECT TO THAT JURISDICTION'S CHOICE OF LAW PRINCIPLES.
<PAGE>
EXHIBIT C
DEFINITIONS
[ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
"RELATED COMPANY" AS USED HEREIN SHALL MEAN ANY CORPORATION OR OTHER LEGAL
ENTITY WHICH (A) OWNS A MAJORITY INTEREST IN OR CONTROLS ANY PARTY; (B) IS
CONTROLLED BY, OR THE MAJORITY INTEREST OF WHICH IS OWNED BY, ANY PARTY; OR
(C) OWNS A MAJORITY INTEREST IN, CONTROLS, IS CONTROLLED BY, OR THE MAJORITY
INTEREST OF WHICH IS OWNED BY, ANY CORPORATION OR OTHER LEGAL ENTITY DESCRIBED
IN CLAUSE (A) OR (B) OF THIS SENTENCE.
<PAGE>
EXHIBIT 1A-5
DEVELOPMENT AGREEMENT
DEVELOPMENT AGREEMENT
[ ******* CONFIDENTIAL TREATMENT REQUESTED ]
<PAGE>
EXHIBIT 1B
BUSINESS PLAN
THE MEMBERS SHALL AGREE ON THE BUSINESS PLAN NO LATER THAN AUGUST 31, 1998.
[ ******* CONFIDENTIAL TREATMENT REQUESTED ]
<PAGE>
EXHIBIT 1D
SHELDAHL PROPERTY
SHELDAHL SHALL TRANSFER AN UNDIVIDED OWNERSHIP INTEREST IN THE FOLLOWING
PROPERTY:
[ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
<PAGE>
EXHIBIT 2.2
CERTIFICATE OF FORMATION
CERTIFICATE OF FORMATION
OF
MODULAR INTERCONNECT SYSTEMS, L.L.C.
THE UNDERSIGNED, AN AUTHORIZED NATURAL PERSON, FOR THE PURPOSE OF
FORMING A LIMITED LIABILITY COMPANY, UNDER THE PROVISIONS AND SUBJECT TO THE
REQUIREMENTS OF THE STATE OF DELAWARE (PARTICULARLY CHAPTER 18, TITLE 6 OF THE
DELAWARE CODE AND THE ACTS AMENDATORY THEREOF AND SUPPLEMENTAL THERETO, AND
KNOWN, IDENTIFIED, AND REFERRED TO AS THE DELAWARE LIMITED LIABILITY COMPANY
ACT), HEREBY CERTIFIES THAT:
FIRST: THE NAME OF THE LIMITED LIABILITY COMPANY (HEREINAFTER CALLED THE
LIMITED LIABILITY COMPANY) IS MODULAR INTERCONNECT SYSTEMS, L.L.C.
SECOND: THE ADDRESS OF THE REGISTERED OFFICE AND THE NAME AND THE
ADDRESS OF THE REGISTERED AGENT OF THE LIMITED LIABILITY COMPANY REQUIRED TO
BE MAINTAINED BY SECTION 18-104 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT
ARE CORPORATION SERVICE COMPANY, 1013 CENTRE ROAD, WILMINGTON, DELAWARE 19805.
EXECUTED ON _________, 1998.
BY: _______________________________
NAME: _________________________
<PAGE>
EXHIBIT 2.3
BYLAWS
BYLAWS OF MODULAR INTERCONNECT SYSTEMS, L.L.C.
INTRODUCTION
A. AGREEMENT. THESE BYLAWS SHALL BE SUBJECT TO THE LIMITED LIABILITY
COMPANY AGREEMENT, AS FROM TIME TO TIME IN EFFECT (THE "AGREEMENT"), OF
MODULAR INTERCONNECT SYSTEMS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
(THE "COMPANY"). IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS HEREOF
AND THE TERMS OF THE AGREEMENT, THE TERMS OF THE AGREEMENT SHALL CONTROL.
B. DEFINITIONS. CAPITALIZED TERMS USED HEREIN AND NOT HEREIN DEFINED
ARE USED AS DEFINED IN THE AGREEMENT.
ARTICLE I
MEETINGS OF MEMBERS
SECTION 1. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. MEETINGS OF
MEMBERS SHALL BE HELD AT ANY PLACE DESIGNATED BY THE MANAGERS. IN THE ABSENCE
OF ANY SUCH DESIGNATION, MEETINGS OF MEMBERS SHALL BE HELD AT THE PRINCIPAL
PLACE OF BUSINESS OF THE COMPANY. ANY MEETING OF THE MEMBERS MAY BE HELD BY
CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT SO LONG AS ALL
MEMBERS PARTICIPATING IN THE MEETING CAN HEAR ONE ANOTHER, AND ALL MEMBERS
PARTICIPATING BY TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT SHALL BE DEEMED
TO BE PRESENT IN PERSON AT THE MEETING.
SECTION 2. CALL OF MEETINGS. MEETINGS OF THE MEMBERS MAY BE CALLED AT
ANY TIME BY THE MANAGERS OR BY THE CHAIRMAN OR THE PRESIDENT FOR THE PURPOSE
OF TAKING ACTION UPON ANY MATTER REQUIRING THE VOTE OR AUTHORITY OF THE
MEMBERS AS PROVIDED HEREIN OR IN THE AGREEMENT OR UPON ANY OTHER MATTER AS TO
WHICH SUCH VOTE OR AUTHORITY IS DEEMED BY THE MANAGERS OR THE CHAIRMAN OR THE
PRESIDENT TO BE NECESSARY OR DESIRABLE. MEETINGS OF THE MEMBERS SHALL BE
CALLED PROMPTLY BY THE MANAGERS UPON THE WRITTEN REQUEST OF ANY MEMBER.
SECTION 3. NOTICE OF MEETINGS OF MEMBERS. ALL NOTICES OF MEETINGS OF
MEMBERS SHALL BE SENT OR OTHERWISE GIVEN IN ACCORDANCE WITH SECTION 4 OF THIS
ARTICLE I NOT LESS THAN TEN (10) NOR MORE THAN NINETY (90) DAYS BEFORE THE
DATE OF THE MEETING. THE NOTICE SHALL SPECIFY (I) THE PLACE, DATE, AND HOUR
OF THE MEETING, AND (II) THE GENERAL NATURE OF THE BUSINESS TO BE TRANSACTED.
SECTION 4. MANNER OF GIVING NOTICE. NOTICE OF ANY MEETING OF MEMBERS
SHALL BE GIVEN PERSONALLY OR BY TELEPHONE TO EACH MEMBER OR SENT BY REGISTERED
OR CERTIFIED MAIL, BY TELEGRAM OR TELECOPY (OR SIMILAR ELECTRONIC MEANS), OR
BY A NATIONALLY RECOGNIZED OVERNIGHT COURIER, CHARGES PREPAID, ADDRESSED TO
THE MEMBER AT THE ADDRESS OF THAT MEMBER APPEARING ON THE BOOKS OF THE COMPANY
OR GIVEN BY THE MEMBER TO THE COMPANY FOR THE PURPOSE OF NOTICE. NOTICE SHALL
BE DEEMED TO HAVE BEEN GIVEN AT THE TIME (I) WHEN DELIVERED EITHER PERSONALLY
OR BY TELEPHONE, (II) AT THE TIME WHEN DEPOSITED OR WITH A NATIONALLY
RECOGNIZED OVERNIGHT COURIER, (III) AT THE TIME WHEN SENT BY TELEGRAM OR
TELECOPY (OR SIMILAR ELECTRONIC MEANS), OR (IV) AT THE TIME WHEN DELIVERED (OR
WHEN DELIVERY IS REFUSED) WHEN SENT BY REGISTERED OR CERTIFIED MAIL.
SECTION 5. ADJOURNED MEETING; NOTICE. ANY MEETING OF MEMBERS, WHETHER
OR NOT A QUORUM IS PRESENT, MAY BE ADJOURNED FROM TIME TO TIME BY THE VOTE OF
THE MAJORITY OF THE PERCENTAGE INTERESTS REPRESENTED AT THAT MEETING, EITHER
IN PERSON OR BY PROXY. WHEN ANY MEETING OF MEMBERS IS ADJOURNED TO ANOTHER
TIME OR PLACE, NOTICE NEED NOT BE GIVEN OF THE ADJOURNED MEETING, UNLESS A NEW
RECORD DATE OF THE ADJOURNED MEETING IS FIXED OR UNLESS THE ADJOURNMENT IS FOR
MORE THAN SIXTY (60) DAYS FROM THE DATE SET FOR THE ORIGINAL MEETING, IN WHICH
CASE THE MANAGERS SHALL SET A NEW RECORD DATE AND SHALL GIVE NOTICE IN
ACCORDANCE WITH THE PROVISIONS OF SECTIONS 3 AND 4 OF THIS ARTICLE I. AT ANY
ADJOURNED MEETING, THE COMPANY MAY TRANSACT ANY BUSINESS THAT MIGHT HAVE BEEN
TRANSACTED AT THE ORIGINAL MEETING.
_
SECTION 6. QUORUM; VOTING. AT ANY MEETING OF THE MEMBERS, ALL OF THE
MEMBERS, PRESENT IN PERSON OR BY PROXY, SHALL CONSTITUTE A QUORUM FOR ALL
PURPOSES. EXCEPT AS OTHERWISE REQUIRED BY THE AGREEMENT, THESE BYLAWS, OR
APPLICABLE LAW, ALL MATTERS SHALL BE DETERMINED BY UNANIMOUS VOTE OF THE
MEMBERS. EACH MEMBER SHALL HAVE ONE VOTE ON ALL MATTERS SUBMITTED TO THE
MEMBERS FOR APPROVAL.
SECTION 7. WAIVER OF NOTICE BY CONSENT OF ABSENT MEMBERS. THE
RESOLUTIONS DULY ADOPTED IN THE MANNER PROVIDED HEREIN AT A MEETING OF
MEMBERS, HOWEVER CALLED AND NOTICED AND WHEREVER HELD, SHALL BE AS VALID AS
THOUGH TAKEN AT A MEETING DULY HELD AFTER REGULAR CALL AND NOTICE IF A QUORUM
IS PRESENT EITHER IN PERSON OR BY PROXY AND IF EITHER BEFORE OR AFTER THE
MEETING, EACH PERSON ENTITLED TO VOTE WHO WAS NOT PRESENT IN PERSON OR BY
PROXY SIGNS A WRITTEN WAIVER OF NOTICE OR A CONSENT TO A HOLDING OF THE
MEETING OR AN APPROVAL OF THE MINUTES. THE WAIVER OF NOTICE OR CONSENT NEED
NOT SPECIFY EITHER THE BUSINESS TO BE TRANSACTED OR THE PURPOSE OF ANY MEETING
OF MEMBERS. ATTENDANCE BY A PERSON AT A MEETING SHALL ALSO CONSTITUTE A
WAIVER OF NOTICE OF THAT MEETING, EXCEPT WHEN THE PERSON OBJECTS AT THE
BEGINNING OF THE MEETING TO THE TRANSACTION OF ANY BUSINESS BECAUSE THE
MEETING IS NOT LAWFULLY CALLED OR CONVENED AND EXCEPT THAT ATTENDANCE AT A
MEETING IS NOT A WAIVER OF ANY RIGHT TO OBJECT TO THE CONSIDERATION OF MATTERS
NOT INCLUDED IN THE NOTICE OF THE MEETING IF THAT OBJECTION IS EXPRESSLY MADE
AT THE BEGINNING OF THE MEETING.
SECTION 8. MEMBER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. EXCEPT
AS PROVIDED IN THE AGREEMENT, ANY ACTION THAT MAY BE TAKEN AT ANY MEETING OF
MEMBERS MAY BE TAKEN WITHOUT A MEETING AND WITHOUT PRIOR NOTICE IF A CONSENT
IN WRITING SETTING FORTH THE ACTION SO TAKEN IS SIGNED BY ALL OF THE MEMBERS.
ANY SUCH WRITTEN CONSENT MAY BE EXECUTED AND GIVEN BY TELECOPY OR SIMILAR
ELECTRONIC MEANS. SUCH CONSENTS SHALL BE FILED WITH THE SECRETARY OF THE
COMPANY AND SHALL BE MAINTAINED IN THE COMPANY'S RECORDS.
SECTION 9. RECORD DATE FOR MEMBER NOTICE, VOTING, AND GIVING CONSENTS.
(A) FOR PURPOSES OF DETERMINING THE MEMBERS ENTITLED TO VOTE OR ACT AT
ANY MEETING OR ADJOURNMENT THEREOF, THE MANAGERS MAY FIX IN
ADVANCE A RECORD DATE WHICH SHALL NOT BE GREATER THAN NINETY (90)
DAYS NOR FEWER THAN FIVE (5) DAYS BEFORE THE DATE OF ANY SUCH
MEETING. IF THE MANAGERS DO NOT SO FIX A RECORD DATE, THE RECORD
DATE FOR DETERMINING MEMBERS ENTITLED TO NOTICE OF OR TO VOTE AT A
MEETING OF MEMBERS SHALL BE AT THE CLOSE OF BUSINESS ON THE
BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON WHICH NOTICE IS
GIVEN, OR IF NOTICE IS WAIVED, AT THE CLOSE OF BUSINESS ON THE
BUSINESS DAY NEXT PRECEDING THE DAY ON WHICH THE MEETING IS HELD.
(B) THE RECORD DATE FOR DETERMINING MEMBERS ENTITLED TO GIVE CONSENT
TO ACTION IN WRITING WITHOUT A MEETING, (I) WHEN NO PRIOR ACTION
OF THE MANAGERS HAS BEEN TAKEN, SHALL BE THE DAY ON WHICH THE
FIRST WRITTEN CONSENT IS GIVEN OR (II) WHEN PRIOR ACTION OF THE
MANAGERS HAS BEEN TAKEN, SHALL BE (X) SUCH DATE AS DETERMINED FOR
THAT PURPOSE BY THE MANAGERS, WHICH RECORD DATE SHALL NOT PRECEDE
THE DATE UPON WHICH THE RESOLUTION FIXING IT IS ADOPTED BY THE
MANAGERS AND SHALL NOT BE MORE THAN 20 DAYS AFTER THE DATE OF SUCH
RESOLUTION OR (Y) IF NO RECORD DATE IS FIXED BY THE MANAGERS THE
RECORD DATE SHALL BE THE CLOSE OF BUSINESS ON THE DAY ON WHICH THE
MANAGERS ADOPT THE RESOLUTION RELATING TO THAT ACTION.
( C ) ONLY MEMBERS OF RECORD ON THE RECORD DATE AS HEREIN DETERMINED
SHALL HAVE ANY RIGHT TO VOTE OR TO ACT AT ANY MEETING OR GIVE
CONSENT TO ANY ACTION RELATING TO SUCH RECORD DATE, PROVIDED THAT
NO MEMBER WHO TRANSFERS ALL OR PART OF SUCH MEMBER'S INTEREST
AFTER A RECORD DATE (AND NO TRANSFEREE OF SUCH INTEREST) SHALL
HAVE THE RIGHT TO VOTE OR ACT WITH RESPECT TO THE TRANSFERRED
INTEREST AS REGARDS THE MATTER FOR WHICH THE RECORD DATE WAS SET.
SECTION 10. PROXIES. EVERY MEMBER ENTITLED TO VOTE OR ACT ON ANY
MATTER AT A MEETING OF MEMBERS SHALL HAVE THE RIGHT TO DO SO EITHER IN PERSON
OR BY PROXY, PROVIDED THAT AN INSTRUMENT AUTHORIZING SUCH A PROXY TO ACT IS
EXECUTED BY THE MEMBER IN WRITING AND DATED NOT MORE THAN ELEVEN (11) MONTHS
BEFORE THE MEETING, UNLESS THE INSTRUMENT SPECIFICALLY PROVIDES FOR A LONGER
PERIOD. A PROXY SHALL BE DEEMED EXECUTED BY A MEMBER IF THE MEMBER'S NAME IS
PLACED ON THE PROXY (WHETHER BY MANUAL SIGNATURE, TYPEWRITING, TELEGRAPHIC
TRANSMISSION, OR OTHERWISE) BY THE MEMBER OR THE MEMBER'S ATTORNEY-IN-FACT. A
VALID PROXY THAT DOES NOT STATE THAT IT IS IRREVOCABLE SHALL CONTINUE IN FULL
FORCE AND EFFECT UNLESS (I) REVOKED BY THE PERSON EXECUTING IT BEFORE THE VOTE
PURSUANT TO THAT PROXY BY A WRITING DELIVERED TO THE COMPANY STATING THAT THE
PROXY IS REVOKED, BY A SUBSEQUENT PROXY EXECUTED BY OR ATTENDANCE AT THE
MEETING AND VOTING IN PERSON BY THE PERSON EXECUTING THAT PROXY OR
(II) WRITTEN NOTICE OF THE DEATH OR INCAPACITY OF THE MAKER OF THAT PROXY IS
RECEIVED BY THE COMPANY BEFORE THE VOTE PURSUANT TO THAT PROXY IS COUNTED. A
PROXY PURPORTING TO BE EXECUTED BY OR ON BEHALF OF A MEMBER SHALL BE DEEMED
VALID UNLESS CHALLENGED AT OR PRIOR TO ITS EXERCISE AND THE BURDEN OF PROVING
INVALIDITY SHALL REST ON THE CHALLENGER.
ARTICLE II
MANAGERS AND MEETINGS OF MANAGERS
SECTION 1. POWERS. THE POWERS OF THE MANAGERS SHALL BE AS PROVIDED IN
THE AGREEMENT.
SECTION 2. NUMBER OF MANAGERS. THE NUMBER OF MANAGERS SHALL BE AS
PROVIDED IN THE AGREEMENT.
SECTION 3. VACANCIES. VACANCIES IN THE AUTHORIZED NUMBER OF MANAGERS
MAY BE FILLED AS PROVIDED IN THE AGREEMENT.
SECTION 4. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. ALL MEETINGS
OF THE MANAGERS MAY BE HELD AT ANY PLACE THAT HAS BEEN DESIGNATED FROM TIME TO
TIME BY RESOLUTION OF THE MANAGERS. IN THE ABSENCE OF SUCH A DESIGNATION,
REGULAR MEETINGS SHALL BE HELD AT THE PRINCIPAL PLACE OF BUSINESS OF THE
COMPANY. ANY MEETING, REGULAR OR SPECIAL, MAY BE HELD BY CONFERENCE TELEPHONE
OR SIMILAR COMMUNICATIONS EQUIPMENT SO LONG AS ALL MANAGERS PARTICIPATING IN
THE MEETING CAN HEAR ONE ANOTHER, AND ALL MANAGERS PARTICIPATING BY TELEPHONE
OR SIMILAR COMMUNICATIONS EQUIPMENT SHALL BE DEEMED TO BE PRESENT IN PERSON AT
THE MEETING.
SECTION 5. REGULAR MEETINGS. REGULAR MEETINGS OF THE MANAGERS SHALL
BE HELD AT LEAST ONCE EVERY 60 DAYS AT SUCH TIMES AND AT SUCH PLACES AS SHALL
BE FIXED BY THE MANAGERS. SUCH REGULAR MEETINGS MAY BE HELD WITHOUT NOTICE.
SECTION 6. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE MANAGERS FOR ANY
PURPOSE OR PURPOSES MAY BE CALLED AT ANY TIME BY NOT LESS THAN TWO (2)
MANAGERS INCLUDING, AT LEAST, ONE MANAGER APPOINTED BY MOLEX AND ONE MANAGER
APPOINTED BY SHELDAHL. NOTICE OF THE TIME AND PLACE OF A SPECIAL MEETING
SHALL BE DELIVERED PERSONALLY OR BY TELEPHONE TO EACH MANAGER AND SENT BY
REGISTERED OR CERTIFIED MAIL, BY TELEGRAM OR TELECOPY (OR SIMILAR ELECTRONIC
MEANS), OR BY NATIONALLY RECOGNIZED OVERNIGHT COURIER, CHARGES PREPAID,
ADDRESSED TO EACH MANAGER AT THAT MANAGER'S ADDRESS AS IT IS SHOWN ON THE
RECORDS OF THE COMPANY. IN CASE THE NOTICE IS MAILED, IT SHALL BE DEPOSITED
IN THE UNITED STATES MAIL AT LEAST TEN (10) CALENDAR DAYS BEFORE THE TIME OF
THE HOLDING OF THE MEETING AND SHALL BE DEEMED GIVEN AT THE TIME WHEN
DELIVERED (OR WHEN DELIVERY IS REFUSED). IN CASE THE NOTICE IS DELIVERED
PERSONALLY OR BY TELEPHONE OR BY TELEGRAM, TELECOPY (OR SIMILAR ELECTRONIC
MEANS), OR OVERNIGHT COURIER, IT SHALL BE GIVEN AT LEAST TWO (2) CALENDAR DAYS
BEFORE THE TIME OF THE HOLDING OF THE MEETING. ANY ORAL NOTICE GIVEN
PERSONALLY OR BY TELEPHONE MAY BE COMMUNICATED EITHER TO THE MANAGER OR TO A
PERSON AT THE OFFICE OF THE MANAGER WHO THE PERSON GIVING THE NOTICE HAS
REASON TO BELIEVE WILL PROMPTLY COMMUNICATE IT TO THE MANAGER. THE NOTICE
NEED NOT SPECIFY THE PURPOSE OF THE MEETING.
SECTION 7. QUORUM. NOT LESS THAN FOUR (4) MANAGERS SHALL CONSTITUTE A
QUORUM FOR THE TRANSACTION OF BUSINESS, EXCEPT TO ADJOURN AS PROVIDED IN
SECTION 9 OF THIS ARTICLE II. EVERY ACT OR DECISION DONE OR MADE BY THE
AFFIRMATIVE VOTE OF A MAJORITY OF THE MANAGERS PRESENT AT A MEETING DULY HELD
AT WHICH A QUORUM IS PRESENT SHALL BE REGARDED AS THE ACT OF THE MANAGERS,
EXCEPT TO THE EXTENT THAT THE VOTE OF A HIGHER NUMBER OF MANAGERS IS REQUIRED
BY THE AGREEMENT, THESE BYLAWS, OR APPLICABLE LAW.
SECTION 8. WAIVER OF NOTICE. NOTICE OF ANY MEETING NEED NOT BE GIVEN
TO ANY MANAGER WHO EITHER BEFORE OR AFTER THE MEETING SIGNS A WRITTEN WAIVER
OF NOTICE, A CONSENT TO HOLDING THE MEETING, OR AN APPROVAL OF THE MINUTES.
THE WAIVER OF NOTICE OR CONSENT NEED NOT SPECIFY THE PURPOSE OF THE MEETING.
ALL SUCH WAIVERS, CONSENTS, AND APPROVALS SHALL BE FILED WITH THE RECORDS OF
THE COMPANY OR MADE A PART OF THE MINUTES OF THE MEETING. NOTICE OF A MEETING
SHALL ALSO BE DEEMED GIVEN TO ANY MANAGER WHO ATTENDS THE MEETING WITHOUT
PROTESTING BEFORE OR AT ITS COMMENCEMENT THE LACK OF NOTICE TO THAT MANAGER.
SECTION 9. ADJOURNMENT. A MAJORITY OF THE MANAGERS PRESENT, WHETHER
OR NOT CONSTITUTING A QUORUM, MAY ADJOURN ANY MEETING TO ANOTHER TIME AND
PLACE. NOTICE OF THE TIME AND PLACE OF HOLDING AN ADJOURNED MEETING NEED NOT
BE GIVEN UNLESS THE MEETING IS ADJOURNED FOR MORE THAN FORTY-EIGHT (48) HOURS,
IN WHICH CASE NOTICE OF THE TIME AND PLACE SHALL BE GIVEN BEFORE THE TIME OF
THE ADJOURNED MEETING IN THE MANNER SPECIFIED IN SECTION 6 OF THIS ARTICLE II.
_
SECTION 10. ACTION WITHOUT A MEETING. ANY ACTION TO BE TAKEN BY THE
MANAGERS AT A MEETING MAY BE TAKEN WITHOUT SUCH MEETING BY THE WRITTEN CONSENT
OF THE MANAGERS THEN IN OFFICE. ANY SUCH WRITTEN CONSENT MAY BE EXECUTED AND
GIVEN BY TELECOPY OR SIMILAR ELECTRONIC MEANS. SUCH WRITTEN CONSENTS SHALL BE
FILED WITH THE MINUTES OF THE PROCEEDINGS OF THE MANAGERS.
SECTION 11. DELEGATION OF POWER. ANY MANAGER MAY, BY POWER OF
ATTORNEY, DELEGATE HIS OR HER POWER FOR A PERIOD NOT EXCEEDING SIX (6) MONTHS
AT ANY ONE TIME TO ANY OTHER MANAGER OR MANAGERS; PROVIDED THAT IN NO CASE
SHALL FEWER THAN TWO (2) MANAGERS PERSONALLY EXERCISE THE POWERS GRANTED TO
THE MANAGERS, EXCEPT AS OTHERWISE PROVIDED BY RESOLUTION OF THE MANAGERS. A
MANAGER REPRESENTED BY ANOTHER MANAGER PURSUANT TO SUCH POWER OF ATTORNEY
SHALL BE DEEMED TO BE PRESENT FOR PURPOSES OF ESTABLISHING A QUORUM AND
SATISFYING ANY VOTING REQUIREMENTS. ALL SUCH DELEGATES SHALL SERVE AT THE
PLEASURE OF THE MANAGERS. TO THE EXTENT APPLICABLE, NOTICE SHALL BE GIVEN TO,
AND ACTION MAY BE TAKEN BY, ANY DELEGATE OF THE MANAGERS AS HEREIN PROVIDED
WITH RESPECT TO NOTICE TO, AND ACTION BY, THE MANAGERS.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. THE OFFICERS OF THE COMPANY SHALL BE A CHAIRMAN,
A PRESIDENT, A SECRETARY, AND A TREASURER. THE COMPANY MAY ALSO HAVE, AT THE
DISCRETION OF THE MANAGERS, SUCH OTHER OFFICERS AS MAY BE APPOINTED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THIS ARTICLE III. ANY NUMBER
OF OFFICES MAY BE HELD BY THE SAME PERSON. THE CHAIRMAN SHALL BE A MANAGER
AND ANY OTHER OFFICER MAY BUT NEED NOT BE A MANAGER.
SECTION 2. ELECTION OF OFFICERS. SUBJECT TO PROVISIONS OF THE
AGREEMENT APPLICABLE TO INITIAL APPOINTMENT AND TERM OF OFFICERS, THE OFFICERS
OF THE COMPANY, EXCEPT SUCH OFFICERS AS MAY BE APPOINTED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3 OR 5 OF THIS ARTICLE III, SHALL BE CHOSEN BY THE
MANAGERS, AND EACH SHALL SERVE AT THE PLEASURE OF THE MANAGERS, SUBJECT TO THE
RIGHTS, IF ANY, OF AN OFFICER UNDER ANY CONTRACT OF EMPLOYMENT.
SECTION 3. SUBORDINATE OFFICERS. THE MANAGERS MAY APPOINT AND MAY
EMPOWER THE CHAIRMAN OR PRESIDENT TO APPOINT SUCH OTHER OFFICERS AS THE
BUSINESS OF THE COMPANY MAY REQUIRE, EACH OF WHOM SHALL HOLD OFFICE FOR SUCH
PERIOD, HAVE SUCH AUTHORITY AND PERFORM SUCH DUTIES AS ARE PROVIDED IN THESE
BYLAWS OR AS THE MANAGERS (OR, TO THE EXTENT THE POWER TO PRESCRIBE
AUTHORITIES AND DUTIES OF SUBORDINATE OFFICERS IS DELEGATED TO HIM OR HER, THE
CHAIRMAN OR PRESIDENT) MAY FROM TIME TO TIME DETERMINE.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS. SUBJECT TO THE
RIGHTS, IF ANY, OF AN OFFICER UNDER ANY CONTRACT OF EMPLOYMENT, ANY OFFICER
MAY BE REMOVED, WITH OR WITHOUT CAUSE, BY THE MANAGERS AT ANY REGULAR OR
SPECIAL MEETING OF THE MANAGERS OR BY SUCH OFFICER, IF ANY, UPON WHOM SUCH
POWER OF REMOVAL MAY BE CONFERRED BY THE MANAGERS; PROVIDED, HOWEVER, THAT
DURING THE FIRST YEAR OF HIS OR HER INCUMBENCY, ANY OFFICER INITIALLY
DESIGNATED BY A MEMBER SHALL ONLY BE REMOVED BY THE MEMBER THAT DESIGNATED HIM
OR HER. ANY OFFICER MAY RESIGN AT ANY TIME BY GIVING WRITTEN NOTICE TO THE
COMPANY. ANY RESIGNATION SHALL TAKE EFFECT AT THE DATE OF THE RECEIPT OF THAT
NOTICE OR AT ANY LATER TIME SPECIFIED IN THAT NOTICE; AND UNLESS OTHERWISE
SPECIFIED IN THAT NOTICE, THE ACCEPTANCE OF THE RESIGNATION SHALL NOT BE
NECESSARY TO MAKE IT EFFECTIVE. ANY RESIGNATION IS WITHOUT PREJUDICE TO THE
RIGHTS, IF ANY, OF THE COMPANY UNDER ANY CONTRACT TO WHICH THE OFFICER IS A
PARTY.
SECTION 5. VACANCIES IN OFFICES. A VACANCY IN ANY OFFICE BECAUSE OF
DEATH, RESIGNATION, REMOVAL, DISQUALIFICATION, OR OTHER CAUSE SHALL BE FILLED
IN THE MANNER PRESCRIBED IN THESE BYLAWS FOR REGULAR APPOINTMENT TO THAT
OFFICE; PROVIDED THAT AS TO ANY OFFICER INITIALLY DESIGNATED BY A MEMBER ANY
SUCH VACANCY OCCURRING DURING THE FIRST YEAR OF SUCH OFFICER'S INCUMBENCY
SHALL BE FILLED BY THE MEMBER THAT DESIGNATED SUCH OFFICER. THE PRESIDENT MAY
MAKE TEMPORARY APPOINTMENTS TO A VACANT OFFICE PENDING ACTION BY THE MANAGERS
OR A MEMBER.
SECTION 6. CHAIRMAN. THE CHAIRMAN SHALL IF PRESENT PRESIDE AT
MEETINGS OF THE MANAGERS AND SHALL EXERCISE AND PERFORM SUCH OTHER POWERS AND
DUTIES AS MAY FROM TIME BE ASSIGNED TO HIM OR HER BY THE MANAGERS OR
PRESCRIBED BY THE AGREEMENT OR THESE BYLAWS.
SECTION 7. PRESIDENT. SUBJECT TO THE SUPERVISORY POWERS OF THE
CHAIRMAN, THE PRESIDENT SHALL BE THE CHIEF OPERATING OFFICER OF THE COMPANY
AND SHALL, SUBJECT TO THE CONTROL OF THE MANAGERS AND THE CHAIRMAN, HAVE
GENERAL SUPERVISION, DIRECTION, AND CONTROL OF THE BUSINESS AND THE OFFICERS
OF THE COMPANY. HE OR SHE SHALL PRESIDE AT ALL MEETINGS OF THE MEMBERS AND,
IN THE ABSENCE OF THE CHAIRMAN, AT ALL MEETINGS OF THE MANAGERS. HE OR SHE
SHALL HAVE THE GENERAL POWERS AND DUTIES OF MANAGEMENT USUALLY VESTED IN THE
OFFICE OF PRESIDENT OF A CORPORATION AND SHALL HAVE SUCH OTHER POWERS AND
DUTIES AS MAY BE PRESCRIBED BY THE MANAGERS, THE AGREEMENT, OR THESE BYLAWS.
SECTION 8. VICE PRESIDENTS. IN THE ABSENCE OR DISABILITY OF THE
PRESIDENT, THE VICE PRESIDENTS, IN ORDER OF THEIR RANK AS FIXED BY THE
MANAGERS, SHALL PERFORM ALL DUTIES OF THE PRESIDENT AND WHEN SO ACTING SHALL
HAVE ALL POWERS OF AND BE SUBJECT TO ALL THE RESTRICTIONS UPON THE PRESIDENT.
THE VICE PRESIDENTS SHALL HAVE SUCH OTHER POWERS AND PERFORM SUCH OTHER DUTIES
AS FROM TIME TO TIME MAY BE PRESCRIBED FOR THEM RESPECTIVELY BY THE MANAGERS
OR THE PRESIDENT OR THE CHAIRMAN OR BY THESE BYLAWS.
SECTION 9. SECRETARY. THE SECRETARY SHALL KEEP OR CAUSE TO BE KEPT AT
THE PRINCIPAL PLACE OF BUSINESS OF THE COMPANY OR SUCH OTHER PLACE AS THE
MANAGERS MAY DIRECT A BOOK OF MINUTES OF ALL MEETINGS AND ACTIONS OF MANAGERS,
COMMITTEES, OR OTHER DELEGATES OF MANAGERS AND MEMBERS WITH THE TIME AND PLACE
OF HOLDING, WHETHER REGULAR OR SPECIAL, AND, IF SPECIAL, HOW AUTHORIZED, THE
NOTICE GIVEN, THE NAMES OF THOSE PRESENT AT MANAGERS' MEETINGS OR COMMITTEE OR
OTHER DELEGATE MEETINGS, THE PERCENTAGE INTEREST PRESENT OR REPRESENTED AT
MEETINGS OF MEMBERS, AND THE PROCEEDINGS. THE SECRETARY SHALL KEEP OR CAUSE
TO BE KEPT AT THE PRINCIPAL PLACE OF BUSINESS OF THE COMPANY A REGISTER OR A
DUPLICATE REGISTER SHOWING THE NAMES OF ALL MEMBERS AND THEIR ADDRESSES, THE
NUMBER AND CLASSES OF PERCENTAGE INTEREST HELD BY EACH, THE NUMBER AND DATE OF
CERTIFICATES ISSUED FOR THE SAME, IF ANY, AND THE NUMBER AND DATE OF
CANCELLATION OF EVERY CERTIFICATE SURRENDERED FOR CANCELLATION. THE SECRETARY
SHALL GIVE OR CAUSE TO BE GIVEN NOTICE OF ALL MEETINGS OF THE MEMBERS AND OF
THE MANAGERS (OR COMMITTEES OR OTHER DELEGATES THEREOF) REQUIRED TO BE GIVEN
BY THESE BYLAWS OR BY APPLICABLE LAW AND SHALL HAVE SUCH OTHER POWERS AND
PERFORM SUCH OTHER DUTIES AS MAY BE PRESCRIBED BY THE MANAGERS OR THE
PRESIDENT OR THE CHAIRMAN OR BY THESE BYLAWS.
SECTION 10. TREASURER. THE TREASURER SHALL KEEP AND MAINTAIN OR CAUSE
TO BE KEPT AND MAINTAINED ADEQUATE AND CORRECT BOOKS AND RECORDS OF ACCOUNTS
OF THE PROPERTIES AND BUSINESS TRANSACTIONS OF THE COMPANY, INCLUDING ACCOUNTS
OF THE ASSETS, LIABILITIES, RECEIPTS, DISBURSEMENTS, GAINS, LOSSES, AND
CAPITAL AND RETAINED EARNINGS OF THE COMPANY. THE BOOKS OF ACCOUNT SHALL AT
ALL REASONABLE TIMES BE OPEN TO INSPECTION BY ANY MANAGER. THE TREASURER
SHALL DEPOSIT ALL MONIES AND OTHER VALUABLES IN THE NAME AND TO THE CREDIT OF
THE COMPANY WITH SUCH DEPOSITARIES AS MAY BE DESIGNATED BY THE MANAGERS. HE
OR SHE SHALL DISBURSE THE FUNDS OF THE COMPANY AS MAY BE ORDERED BY THE
MANAGERS, SHALL RENDER TO THE PRESIDENT, THE CHAIRMAN, AND MANAGERS, WHENEVER
THEY REQUEST IT, AN ACCOUNT OF ALL OF HIS OR HER TRANSACTIONS AS CHIEF
FINANCIAL OFFICER AND OF THE FINANCIAL CONDITION OF THE COMPANY, AND SHALL
HAVE OTHER POWERS AND PERFORM SUCH OTHER DUTIES AS MAY BE PRESCRIBED BY THE
MANAGERS OR THE PRESIDENT OR THE CHAIRMAN OR THESE BYLAWS.
ARTICLE IV
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. THE COMPANY
SHALL MAINTAIN AT ITS PRINCIPAL PLACE OF BUSINESS A RECORD OF ITS MEMBERS,
GIVING THE NAMES AND ADDRESSES OF ALL MEMBERS AND THE PERCENTAGE INTEREST HELD
BY EACH MEMBER. SUBJECT TO SUCH REASONABLE STANDARDS (INCLUDING STANDARDS
GOVERNING WHAT INFORMATION AND DOCUMENTS ARE TO BE FURNISHED AND AT WHOSE
EXPENSE) AS MAY BE ESTABLISHED BY THE MANAGERS FROM TIME TO TIME, EACH MEMBER
HAS THE RIGHT TO OBTAIN FROM THE COMPANY FROM TIME TO TIME UPON REASONABLE
DEMAND FOR ANY PURPOSE REASONABLY RELATED TO THE MEMBER'S INTEREST AS A MEMBER
OF THE COMPANY A RECORD OF THE COMPANY'S MEMBERS.
SECTION 2. MAINTENANCE AND INSPECTION OF BYLAWS. THE COMPANY SHALL
KEEP AT ITS PRINCIPAL PLACE OF BUSINESS THE ORIGINAL OR A COPY OF THESE BYLAWS
AS AMENDED TO DATE, WHICH SHALL BE OPEN TO INSPECTION BY THE MEMBERS AT ALL
REASONABLE TIMES DURING OFFICE HOURS.
SECTION 3. MAINTENANCE AND INSPECTION OF OTHER RECORDS. THE
ACCOUNTING BOOKS AND RECORDS, MINUTES OF PROCEEDINGS OF THE MEMBERS AND THE
MANAGERS AND ANY COMMITTEES OR DELEGATES OF THE MANAGERS, AND ALL OTHER
INFORMATION PERTAINING TO THE COMPANY THAT IS REQUIRED TO BE MADE AVAILABLE TO
THE MEMBERS UNDER THE DELAWARE ACT SHALL BE KEPT AT SUCH PLACE OR PLACES
DESIGNATED BY THE MANAGERS OR IN THE ABSENCE OF SUCH DESIGNATION, AT THE
PRINCIPAL PLACE OF BUSINESS OF THE COMPANY. THE MINUTES SHALL BE KEPT IN
WRITTEN FORM AND THE ACCOUNTING BOOKS AND RECORDS AND OTHER INFORMATION SHALL
BE KEPT EITHER IN WRITTEN FORM OR IN ANY OTHER FORM CAPABLE OF BEING CONVERTED
INTO WRITTEN FORM. THE BOOKS OF ACCOUNT AND RECORDS OF THE COMPANY SHALL BE
MAINTAINED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
CONSISTENTLY APPLIED DURING THE TERM OF THE COMPANY, WHEREIN ALL TRANSACTIONS,
MATTERS, AND THINGS RELATING TO THE BUSINESS AND PROPERTIES OF THE COMPANY
SHALL BE CURRENTLY ENTERED. SUBJECT TO SUCH REASONABLE STANDARDS (INCLUDING
STANDARDS GOVERNING WHAT INFORMATION AND DOCUMENTS ARE TO BE FURNISHED AND AT
WHOSE EXPENSE) AS MAY BE ESTABLISHED BY THE MANAGERS FROM TIME TO TIME,
MINUTES, ACCOUNTING BOOKS AND RECORDS, AND OTHER INFORMATION SHALL BE OPEN TO
INSPECTION UPON THE WRITTEN DEMAND OF ANY MEMBER AT ANY REASONABLE TIME DURING
USUAL BUSINESS HOURS FOR A PURPOSE REASONABLY RELATED TO THE MEMBER'S
INTERESTS AS A MEMBER. ANY SUCH INSPECTION MAY BE MADE IN PERSON OR BY AN
AGENT OR ATTORNEY AND SHALL INCLUDE THE RIGHT TO COPY AND MAKE EXTRACTS.
NOTWITHSTANDING THE FOREGOING, THE MANAGERS SHALL HAVE THE RIGHT TO KEEP
CONFIDENTIAL FROM MEMBERS FOR SUCH PERIOD OF TIME AS THE MANAGERS DEEM
REASONABLE ANY INFORMATION WHICH THE MANAGERS REASONABLY BELIEVE TO BE IN THE
NATURE OF TRADE SECRETS OR OTHER INFORMATION THE DISCLOSURE OF WHICH THE
MANAGERS IN GOOD FAITH BELIEVE IS NOT IN THE BEST INTERESTS OF THE COMPANY OR
COULD DAMAGE THE COMPANY OR ITS BUSINESS OR WHICH THE COMPANY IS REQUIRED BY
LAW OR BY AGREEMENT WITH A THIRD PARTY TO KEEP CONFIDENTIAL.
SECTION 4. INSPECTION BY MANAGERS. EVERY MANAGER SHALL HAVE THE RIGHT
AT ANY REASONABLE TIME TO INSPECT ALL BOOKS, RECORDS, AND DOCUMENTS OF EVERY
KIND AND THE PHYSICAL PROPERTIES OF THE COMPANY FOR A PURPOSE REASONABLY
RELATED TO HIS OR HER POSITION AS MANAGER. THIS INSPECTION BY A MANAGER MAY
BE MADE IN PERSON OR BY AN AGENT OR ATTORNEY AND THE RIGHT OF INSPECTION
INCLUDES THE RIGHT TO COPY AND MAKE EXTRACTS OF DOCUMENTS.
ARTICLE V
GENERAL MATTERS
SECTION 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS. ALL CHECKS,
DRAFTS, OR OTHER ORDERS FOR PAYMENT OF MONEY, NOTES, OR OTHER EVIDENCE OF
INDEBTEDNESS ISSUED IN THE NAME OF OR PAYABLE TO THE COMPANY SHALL BE SIGNED
OR ENDORSED IN SUCH MANNER AND BY SUCH PERSON OR PERSONS AS SHALL BE
DESIGNATED FROM TIME TO TIME IN ACCORDANCE WITH THE RESOLUTION OF THE
MANAGERS.
SECTION 2. CONTRACTS AND INSTRUMENTS; HOW EXECUTED. THE MANAGERS,
EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OR THESE BYLAWS, MAY AUTHORIZE
ANY MANAGER(S), OFFICER(S), OR AGENT(S) TO ENTER INTO ANY CONTRACT OR EXECUTE
ANY INSTRUMENT IN THE NAME OF AND ON BEHALF OF THE COMPANY AND THIS AUTHORITY
MAY BE GENERAL OR CONFINED TO SPECIFIC INSTANCES; AND UNLESS SO AUTHORIZED OR
RATIFIED BY THE MANAGERS OR WITHIN THE AGENCY POWER OF AN OFFICER (OR
OTHERWISE SPECIFIED IN THE AGREEMENT OR THESE BYLAWS), NO OFFICER, AGENT, OR
EMPLOYEE SHALL HAVE ANY POWER OR AUTHORITY TO BIND THE COMPANY BY ANY CONTRACT
OR ENGAGEMENT OR TO PLEDGE ITS CREDIT OR TO RENDER IT LIABLE FOR ANY PURPOSE
OR FOR ANY AMOUNT.
SECTION 3. REPRESENTATION OF SHARES OF OTHER ENTITIES HELD BY THE
COMPANY. THE CHAIRMAN OR THE PRESIDENT OR ANY VICE PRESIDENT OR ANY OTHER
PERSON AUTHORIZED BY THE MANAGERS OR BY ANY OF THE FOREGOING DESIGNATED
OFFICERS IS AUTHORIZED TO VOTE OR REPRESENT ON BEHALF OF THE COMPANY ANY AND
ALL SHARES OF ANY CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY, FOREIGN OR
DOMESTIC, STANDING IN THE NAME OF THE COMPANY. THE AUTHORITY GRANTED MAY BE
EXERCISED IN PERSON OR BY A PROXY DULY EXECUTED BY SUCH DESIGNATED PERSON.
SECTION 4. SEAL. THE MANAGERS MAY APPROVE AND ADOPT AN OFFICIAL
COMPANY SEAL, WHICH MAY BE ALTERED BY THEM AT ANY TIME. UNLESS OTHERWISE
REQUIRED BY THE MANAGERS, ANY SEAL SO ADOPTED SHALL NOT BE NECESSARY TO BE
PLACED ON, AND ITS ABSENCE SHALL NOT IMPAIR THE VALIDITY OF, ANY DOCUMENT,
INSTRUMENT, OR OTHER PAPER EXECUTED AND DELIVERED BY OR ON BEHALF OF THE
COMPANY.
ARTICLE VI
AMENDMENTS AND INCORPORATION BY REFERENCE INTO AGREEMENT
SECTION 1. AMENDMENT. THESE BYLAWS MAY BE RESTATED, AMENDED,
SUPPLEMENTED, OR REPEALED ONLY AS PROVIDED FOR IN THE AGREEMENT.
SECTION 2. INCORPORATION BY REFERENCE OF BYLAWS INTO AGREEMENT. THESE
BYLAWS AND ANY AMENDMENTS THERETO SHALL BE DEEMED INCORPORATED BY REFERENCE IN
THE AGREEMENT.
<PAGE>
EXHIBIT 2.5
THE MEMBERS CONTEMPLATE THAT THE PURPOSE OF THE COMPANY WILL BE TO CREATE A
NEW FAMILY OF MODULAR INTERCONNECT SYSTEM, PRIMARILY FOR THE AUTOMOTIVE
INDUSTRY, UTILIZING FLEXIBLE CIRCUITS DEVELOPED BY SHELDAHL AND
INTERCONNECTION PRODUCTS DEVELOPED BY MOLEX. THIS COMBINED TECHNOLOGY WILL BE
OFFERED AS AN ALTERNATIVE TO CONVENTIONAL AUTOMOTIVE WIRING HARNESSES AND FLEX
CIRCUIT ASSEMBLIES. [ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
<PAGE>
EXHIBIT 3.2(C)
DESCRIPTION OF LIEN ON SHELDAHL PROPERTY
A LIEN ON ALL THE ASSETS OF SHELDAHL (INCLUDING THE SHELDAHL PROPERTY) IN
FAVOR OF NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION EXISTED PRIOR TO THE
EXECUTION AND DELIVERY OF THE CONSENT OF NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION ATTACHED TO THIS EXHIBIT 3.2(C).
<PAGE>
EXHIBIT 6.1
INITIAL MANAGERS
A. MOLEX-APPOINTED MANAGERS:
1. [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
2. [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
3. [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
B. SHELDAHL-APPOINTED MANAGERS:
1. [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
2. [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
<PAGE>
EXHIBIT D
INITIAL OFFICERS
CHAIRMAN [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
PRESIDENT [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
TREASURER [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
SECRETARY [ ******* CONFIDENTIAL TREATMENT REQUESTED ]
<PAGE>
EXHIBIT 9.3
DESCRIPTION OF LIEN ON SHELDAHL'S INTEREST
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION HAS THE INTEREST IN SHELDAHL'S
INTEREST INDICATED ON THE CONSENT OF NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION ATTACHED TO EXHIBIT 3.2(C).
<PAGE>
EXHIBIT 9.10
BUSINESS GOALS
THE FOLLOWING ARE THE BUSINESS GOALS FOR PURPOSES OF SECTION 9.10 OF THE
AGREEMENT:
[ ******* CONFIDENTIAL TREATMENT REQUESTED ] .
