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As filed with the Securities and Exchange Commission on December 6, 1996
Registration No. 33-95460-LA
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3
ON FORM S-3
TO FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TERA COMPUTER COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Washington 93-0962605
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
</TABLE>
2815 Eastlake Avenue East
Seattle, Washington 98102-3027
(206) 325-0800
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
JAMES E. ROTTSOLK
Chief Executive Officer
TERA COMPUTER COMPANY
2815 Eastlake Avenue East
Seattle, Washington 98102-3027
(206) 325-0800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
<TABLE>
<S> <C>
KENNETH W. JOHNSON, ESQ. THOMAS J. POLETTI, ESQ.
Stoel Rives LLP MARK J. KELSON, ESQ.
One Union Square, 36th Floor, 600 University Street Freshman, Marantz, Orlanski, Cooper & Klein
Seattle, Washington 98101-3197 9100 Wilshire Boulevard, 8th Floor East
(206) 624-0900 Beverly Hills, California 90212-3480
(310) 273-1870
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration becomes effective
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
------------------------
<PAGE> 2
PROSPECTUS
TERA COMPUTER COMPANY
5,785,653 Shares of Common Stock
1,736,077 Common Stock Purchase Warrants
This Prospectus covers the resale of Redeemable Common Stock Purchase Warrants
(the "Warrants") of Tera Computer Company, a Washington corporation ("Tera" or
the "Company"), held by certain security holders originally registered as part
of the Company's initial public offering in September 1995 and those Warrants
that were issued in a private placement completed in July 1996 (the "1996
Private Placement"), the issuance by the Company of shares of the Company's
Common Stock upon exercise of all of its outstanding publicly held Warrants, and
the resale of shares of Common Stock so issued and issued upon conversion of
shares of the Company's Series A Convertible Preferred Stock issued in the 1996
Private Placement, including shares of Common Stock and Warrants issuable upon
exercise of a Sales Agent's Warrant sold to H.J. Meyers & Co., Inc., the
Company's Sales Agent in the 1996 Private Placement.
The Warrants and the Common Stock may be offered or sold by certain shareholders
of the Company (the "Selling Shareholders") from time-to-time in the
over-the-counter market or otherwise at market prices then prevailing, in
negotiated transactions or otherwise. Brokers or dealers will receive
commissions or discounts from Selling Shareholders in amounts to be negotiated
immediately prior to the sale. Such resales are subject to the prospectus
delivery and other requirements of the Securities Act of 1933, as amended. See
"Selling Shareholders" and "Plan of Distribution." The Company will not receive
any of the proceeds from the resale of the Common Stock or Warrants, although it
will receive the proceeds from any exercise of the Warrants and of the Sales
Agent's Warrant.
The terms of the Warrants are identical to the Warrants which the Company has
issued publicly and are traded on the Nasdaq SmallCap Market. Each Warrant
entitles the registered holder thereof to purchase, at any time, 1.21 shares of
Common Stock at a purchase price of $7.19 (a per share purchase price of $5.94)
through March 24, 1998, and 1.25 shares of Common Stock at a purchase price of
$8.43 (a per share purchase price of $6.74) thereafter through September 24,
2000. These purchase prices and exercise ratios reflect an adjustment pursuant
to antidilution provisions due to the 1996 Private Placement and are subject to
further adjustment under certain circumstances. The Warrants are subject to
redemption by the Company at any time at $0.05 per Warrant on 30 days' prior
written notice to the Warrantholders (i) if the closing bid price of the Common
Stock as reported on Nasdaq averages in excess of 150% of the current purchase
price for one share of Common Stock underlying the Warrants for a period of 20
consecutive trading days ending within 15 days prior to the notice of
redemption, or (ii) with the prior written consent of H.J. Meyers & Co., Inc.
The Common Stock and the Warrants are listed on the Nasdaq SmallCap Market under
the symbols TERA and TERAW. On November 27, 1996, the closing prices for the
Common Stock and the Warrants were $6-1/8 and $1-3/4, respectively.
--------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 4 FOR CERTAIN FACTORS RELATED TO THIS OFFERING.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
No person has been authorized to give any information or to make any
representations in connection with this offering other than those contained in
this Prospectus. This Prospectus does not constitute an offering in any
jurisdiction in which such offering may not lawfully be made. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the respective dates as to which information has
been given herein.
--------------
The date of this Prospectus is December 6, 1996.
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THE COMPANY
The Company was formed to design, develop and market high performance
general purpose parallel computer systems. Tera's Multithreaded Architecture
System ("MTA system") is designed to address a wide range of scientific and
engineering applications, such as simulation and visualization of complex
mechanical and biochemical systems, as well as emerging commercial applications,
such as database mining, information-on-demand and computer-aided design and
visualization. The Company believes that its MTA system architecture represents
a significant breakthrough in high performance computing that will enable the
Company to offer systems with several times the price/performance of currently
available commercial high performance computer systems. The Company believes
that the MTA system overcomes the limitations of currently available commercial
architectures by delivering a general purpose parallel, easy-to-program,
scalable, very high performance computer system. The MTA system is designed to
combine the very high computational price/performance levels of massively
parallel processing with the ease of use of conventional shared memory
programming. Typical MTA system configurations are expected to sell for between
$5 million and $40 million.
On November 11, 1996, the Company announced that a prototype MTA system was
undergoing tests and had run its first programs. The Company also announced that
the University of California at San Diego had ordered the first MTA system
production model for installation and evaluation at the San Diego Supercomputer
Center, with initial deliveries scheduled for the first half of 1997. See
"RECENT EVENTS - Prototype Development" and "- Initial Order," and "RISK FACTORS
- - Development Status of the MTA System" and "- Manufacturing Risks; Reliance On
and Capacity Of Third Party Sole Source Suppliers."
The Company was incorporated in Washington in December 1987. The Company's
principal executive offices are located at 2815 Eastlake Avenue East, Seattle,
Washington 98102-3027, and its telephone number is (206) 325-0800.
"Tera" and "MTA" are trademarks of the Company. This Prospectus also
contains and incorporates trademarks of other companies.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated in this
Prospectus by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995;
(b) The Company's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996;
(c) The Company's Current Reports on Form 8-K, dated July 1, 1996
and July 15, 1996; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form SB-2 (Registration No.
33-95460-LA), including any amendment or report filed for the purpose of
updating such description, as incorporated by reference in the Company's
Registration Statement on Form 8-A (Registration No. 0-26820), including
the amendment thereto on Form 8-A/A filed by the Company.
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All reports and other documents subsequently filed by the Company pursuant
to sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the
termination of the offering shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
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AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act") with
respect to the securities offered hereby. This Prospectus, which constitutes a
part of the Registration Statement, omits certain of the information contained
in the Registration Statement and the exhibits and schedules thereto on file
with the Commission pursuant to the Securities Act and the rules and regulations
of the Commission thereunder. For further information with respect to the
Company and the Securities, reference is made to the Registration Statement and
the exhibits and schedules thereto. The Registration Statement, including
exhibits thereto, may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at 7
World Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies may be
obtained at the prescribed rates from the Public Reference Section of the
Commission at its principal office in Washington, D.C. Statements contained in
this Prospectus as to the contents of any contract or other document referred to
are not necessarily complete and in each instance reference is made to the copy
of such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in its entirety by such
reference.
The Company's Common Stock and outstanding Warrants are registered with the
Commission under Section 12(g) of the Exchange Act and, in accordance therewith,
the Company files reports, proxy statements, and other information with the
Commission. Such filings can be inspected and copied at the Commission's public
reference rooms at the above-referenced addresses, at prescribed rates, or from
the Commission's Website at "http://www.sec.gov."
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, including any beneficial
owner, on the written or oral request of any such person, a copy of any or all
of the incorporated documents, other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference therein. Requests shall
be directed to Tera Computer Company, 2815 Eastlake Avenue East, Seattle, WA
98102-3027, Attention: President (telephone number (206) 325-0800). The
information relating to the Company contained in this Prospectus does not
purport to be comprehensive and should be read together with the information
contained in the incorporated documents.
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RISK FACTORS
In addition to the other information in this Prospectus, each prospective
investor should carefully consider the following factors in evaluating the
Company and its business before purchasing the securities offered hereby. No
investor should participate in the Offering unless such investor can afford a
complete loss of his or her investment. This Prospectus contains forward-looking
statements that involve risks and uncertainties. The Company's actual results
could differ materially from those anticipated in these forward-looking
statements as a result of certain factors, including but not limited to those
set forth in the following risk factors and elsewhere in this Prospectus.
DEVELOPMENT STAGE ENTERPRISE; HISTORY OF LOSSES. The Company is a development
stage enterprise that had an accumulated loss of approximately $24.8 million as
of September 30, 1996. The Company has experienced net losses in each year of
operations and expects to incur substantial further losses while it tests and
evaluates its MTA system prototype and commences production, and possibly
thereafter. The Company has had no revenue or earnings and does not expect to
recognize revenue from the sale of its initial MTA system sooner than the first
half of 1997, if ever. Whether the Company will achieve revenue or earnings will
depend upon a number of factors, including its ability to design, develop,
manufacture and market the MTA system and to achieve broad market acceptance
thereof. In addition, profitability will be dependent on, among other things,
the level of revenue in any given period, the terms and conditions of sale or
lease for an MTA system, the system model or models sold, and the Company's
expense levels and manufacturing costs. There can be no assurance that the
Company will be successful in completing the development of, and delivering and
receiving payments for, production MTA systems, or that it will be able to
generate sales or achieve a profitable level of operations in the future.
DEVELOPMENT STATUS OF THE MTA SYSTEM. The development of a new very high
performance computer system is a lengthy and technically challenging process and
requires a significant investment of capital and other resources. Several
companies in this market have recently experienced extreme financial difficulty,
including Thinking Machines Corporation, Cray Computer Corporation, Kendall
Square Research Corporation and Supercomputer Systems, Inc. Since its inception
through September 30, 1996, the Company has expended approximately $36.8 million
to design and develop the MTA system. The hardware development effort has
included design of integrated circuits, packaging and cooling systems and
at-speed testing equipment. The software development effort has included design
of compilers, an operating system and input-output software technology. Until
November 1996, when the Company announced that its initial prototype was
undergoing testing and had run its first programs, the MTA system has been
subject only to computer simulation, and the prototype system has undergone only
initial testing and evaluation. Even if the initial testing and evaluation of
the prototype system is successful, the Company has not attempted to integrate
multiple modules into a commercially configured system and has begun only
recently to commence work on a production model. See "RECENT EVENTS - Prototype
Development."
Assuming that the MTA system prototype can be successfully developed,
modifications to the hardware components, software and the integrated system
still may be required. Development of system software is a difficult process,
and there can be no assurance that the Company will be able to meet all of the
technical challenges required to integrate and complete an MTA system that
satisfies both internal and commercially acceptable performance specifications.
Significant delays in
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completing the various hardware components or software, or in integrating the
full system, would materially and adversely affect the Company's business and
results of operations. Even if the Company is successful in developing its
prototype, there can be no assurance that the Company's products will be
commercially successful.
MANUFACTURING RISKS; RELIANCE ON AND CAPACITY OF THIRD PARTY SOLE SOURCE
SUPPLIERS. The Company intends to subcontract the manufacture of substantially
all of its hardware components, including integrated circuits, printed circuit
boards, flex circuits and power supplies, on a sole source basis to third party
suppliers, and there can be no assurance that such suppliers will be able to
manufacture the components to the Company's design specifications. Manufacturing
difficulties and limited yields, particularly of gallium arsenide ("GaAs")
integrated circuits and advanced printed circuit boards and flex circuits, could
materially and adversely affect the Company's ability to complete and deliver
production models of the MTA system. The manufacture of integrated circuits, and
in particular the manufacture of GaAs integrated circuits, is a difficult and
complex process. Minute impurities, difficulties in the fabrication process,
defects in the masks used to print circuits on wafers or other factors can cause
a substantial percentage of wafers to be rejected or numerous die on each wafer
to be non-functional. The Company's suppliers may experience problems in
achieving acceptable manufacturing yields for these or other reasons, resulting
in substantial delays in the delivery of necessary hardware components to the
Company and unacceptably high prices for those components, with a resulting loss
of profitability or loss of competitiveness for the Company's products. The
Company has experienced such yield problems already, and these failures forced
the Company to redesign certain components for manufacture by alternative
suppliers which caused delays in the fabrication of the Company's prototype and
increased demands upon the Company's financial resources. There can be no
assurance that the Company's efforts to obtain components in a timely manner
that meet its design specifications will be successful. See "RECENT EVENTS -
Prototype Development" and "- Use of Cash Resources."
Moreover, the production capacity of the Company's integrated circuit
suppliers is very limited and the availability of integrated circuits and other
components will be a limiting factor on the number and size of the MTA systems
that may be sold in 1997, assuming the receipt of purchase orders. Absent
improved yields, increased production capacity or a reallocation of such
suppliers' output to meet Tera's needs, the Company may be unable to obtain a
sufficient quantity of integrated circuits or other components to meet future
production and delivery schedules. In addition, some of the Company's key
suppliers are small companies with limited financial and other resources, and
may be more likely to experience financial difficulties than larger, well
established companies. Any or all of the Company's suppliers may make strategic
changes in their product lines, which may result in the delay or suspension of
manufacture of the Company's components or systems. In the event of a reduction
or interruption of supply of the Company's components, it could take the Company
a considerable period of time to identify and qualify alternative suppliers to
redesign its products as necessary and recommence manufacture. The Company's
inability to obtain sufficient sole or limited source components as required, or
to develop alternative sources if and as required in the future, could result in
the Company finding itself without a source of supply for its components; this
could materially impair the Company's ability to deliver its products, which
would materially and adversely affect the Company's business and results of
operations.
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The Company's current contract with Unisys provides for integrated circuit
test and packaging services through June 1997. Although the agreement could be
extended, Unisys has informed the Company that it intends to exit the
semiconductor packaging business. After the Unisys contract expires, the Company
either will contract with another vendor for such packaging services or perform
such work internally. The inability of the Company to subcontract for these
services after its agreement with Unisys expires, or the Company's inability to
perform such services internally, would materially and adversely affect the
Company's business and results of operations. See "RECENT EVENTS - Unisys
Contract."
FUTURE CAPITAL NEEDS. During the fourth quarter of 1996 and in 1997, the
Company's working capital needs will depend primarily upon its staff operating
costs, the cost of components purchased to complete the testing of its initial
MTA system prototype and manufacturing startup costs, and inventory and
receivable financing associated with production MTA systems. The Company has
experienced delays in the development of particular components of the MTA system
that have increased the need for working capital, and the Company could
experience significant additional delays in the manufacturing process that could
further substantially increase the Company's need for working capital. Staff
operating costs will be required to fund ongoing research, development and
engineering efforts, development of a customer service organization and
increases in its sales and marketing efforts. Additionally, the Company's
administrative functions will increase in order to support its engineering and
sales efforts.
The Company's current cash resources are insufficient to meet these
requirements beyond the fourth quarter of 1996. To meet its needs in 1997, the
Company expects to receive revenues from sales of MTA systems, from the possible
exercise of its presently outstanding warrants, which are redeemable by the
Company in certain situations, and from the sale of additional equity or debt or
other financing transactions, which may be dilutive to present shareholders.
Management believes that the Company will be able to secure the requisite
funding, but there can be no assurance that any additional financing will be
available when needed or, if available, will be on satisfactory terms. If
sufficient funding is not available by January 1997, the Company will have to
curtail sharply its present operations. See "RECENT EVENTS - Use of Cash
Resources."
MARKETING RISKS; GOVERNMENT FUNDING AND REGULATION. The Company's first sales
targets will be U.S. and foreign government agencies and research laboratories,
which constitute more than one-half of the market for very high performance
computer systems. The United States government historically has facilitated the
development of, and has constituted a market for, new and enhanced very high
performance computer systems. A change of policy by the United States government
or foreign governments that results in a reduction of, or delays in, funding of
certain high technology programs employing high performance computing could have
a major impact on the market for very high performance computer systems, and
would materially and adversely affect the Company's business, results of
operations and need for capital. See "RECENT EVENTS - Government Funding."
Most of the Company's potential customers already own or lease very high
performance computer systems. Some of the Company's competitors may offer
trade-in allowances or discounts to potential customers, and the Company may not
be able to match such sales incentives. The Company may be required to provide
discounts in order to make sales or be required to finance the leasing of its
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products, which would result in a deferral of the Company's receipt of cash for
such systems. These developments could materially and adversely affect the
Company's business and results of operations.
The United States government regulates the export of high performance
computing systems such as the anticipated MTA system. There can be no assurance
that the U.S. government will grant any necessary export licenses for the sale
of MTA systems to foreign buyers. The Company's prospects for growth will depend
in part on its ability to obtain export licenses for foreign sales, the delay or
denial of which could materially and adversely affect the Company's business and
results of operations.
In order to expand its market beyond the very high performance scientific
market, and particularly beyond government agencies and research laboratories,
to engineering and other commercial markets, the Company must be able to attract
independent software vendors to port their software application programs so that
they will run on the MTA system. There can be no assurance that the Company will
be able to induce independent software vendors to port their applications, and
the failure to do so could materially and adversely affect the Company's
business and results of operations.
MANAGEMENT OF GROWTH; DEPENDENCE ON KEY PERSONNEL. If the Company is successful
in developing and marketing the MTA system, the Company believes it could
undergo a period of rapid growth which could place a significant strain on its
management, financial and other resources. The Company's ability to manage its
growth will require it to continue to improve its operational and financial
systems and to motivate and effectively manage its employees. If the Company
grows, it will have to implement new financial, budgeting, management
information and internal control systems. The success of the Company will depend
on the ability of management to implement effectively these changes and to
manage the Company's operations over the long term. Several senior management
personnel have not yet been identified, including a chief financial officer. The
Company's success also will depend in large part upon its ability to attract and
retain highly skilled technical personnel to provide technological depth and
support, to complete and enhance its first products and to develop new products.
In addition, marketing and sales personnel will be needed. Competition for
highly skilled management, technical, marketing and sales personnel is intense.
There can be no assurance that the Company will be successful in attracting and
retaining key management, technical, marketing and sales personnel, and its
failure to do so would materially and adversely affect the Company's business
and results of operations.
The Company is dependent on Burton J. Smith, the Company's Chairman of the
Board and Chief Scientist, and James E. Rottsolk, the Company's Chief Executive
Officer, and the loss of services of either could have a material impact on the
ability of the Company to achieve its business objectives. The Company has key
man life insurance policies on the lives of Messrs. Smith and Rottsolk in the
amount of $2 million and $1 million, respectively. The Company has no employment
contracts with either Mr. Smith or Mr. Rottsolk or with any other employee.
QUARTERLY PERFORMANCE MAY VARY SIGNIFICANTLY. In the event that the Company is
able to attain broad market acceptance of the MTA system, one or a few system
sales may account for a substantial percentage of the Company's quarterly and
annual revenue because of the anticipated high average sales price of the MTA
system models and the timing of purchase orders and product acceptances.
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Because a number of the Company's prospective customers receive funding from the
U.S. or foreign governments, the timing of orders from such customers may be
subject to the appropriation and funding schedules of the relevant government
agencies. The timing of orders and shipments also could be affected by other
events outside the control of the Company, such as changes in levels of customer
capital spending, the introduction or announcement of competitive products, the
availability of components, currency fluctuations and international conflicts or
economic crises. Because of these factors, revenue, expenses, net income or loss
and cash flow are likely to fluctuate significantly from quarter to quarter.
RAPID TECHNOLOGICAL CHANGE AND NEW PRODUCTS. The market for the Company's
products is characterized by rapidly changing technology, accelerated product
obsolescence and rapidly changing industry standards. The Company's success will
depend upon its ability to complete development of the MTA system and to
introduce new products and features in a timely manner to meet evolving customer
requirements. There can be no assurance that the Company will be successful in
these efforts. The Company's business and results of operations will be
materially and adversely affected if the Company incurs delays in developing its
products or if such products do not gain broad market acceptance. In addition,
there can be no assurance that products or technologies developed by others will
not render the Company's products or technologies noncompetitive or obsolete.
COMPETITION. The Company's competitors can be divided into two general
categories: established companies that are well-known in the high performance
computer market and new entrants capitalizing on developments in parallel
processing and increased computer performance through networking.
The high performance computer market is highly competitive and has been
dominated by Cray Research. Other participants in the market include IBM
Corporation ("IBM"), Intel Corporation ("Intel"), and foreign companies such as
Fujitsu, Ltd., Hitachi, Ltd., and NEC Corporation. Each of these competitors has
broader product lines and substantially greater research, engineering,
manufacturing, marketing and financial resources than the Company.
A number of companies, including IBM, Intel, Silicon Graphics, Inc.,
Fujitsu Ltd. and Convex Computer Corporation, have developed or plan to develop
massively parallel systems for the high performance computer market. Although to
date this kind of system architecture has been limited in applicability and
difficult to program, a breakthrough in architecture or software technology
could change this situation. There can be no assurance that such a breakthrough
will not occur, and such an advance would materially and adversely affect the
Company's business and results of operations.
There can be no assurance that the performance of the MTA system will be
competitive with the computer systems offered by the Company's competitors or
that the Company will be able to compete successfully over time against new
entrants or innovative competitors at the lower end of the market. Furthermore,
periodic announcements by the Company's competitors of new high performance
computer systems and price adjustments may materially and adversely affect the
Company's business and results of operations. The market has experienced a
recent consolidation as Convex Computer Corporation was absorbed by
Hewlett-Packard in 1995, Cray Research was acquired by Silicon Graphics, Inc. in
1996, and Intel has stated that it would no longer directly market high
performance computer systems.
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PROPRIETARY RIGHTS. The Company relies on a combination of copyright and trade
secret protection, non-disclosure agreements and licensing arrangements to
establish, protect and enforce its proprietary rights. Despite the Company's
efforts to safeguard and maintain its proprietary rights, there can be no
assurance that the Company will be successful in doing so or that the Company's
competitors will not independently develop or patent technologies that are
substantially equivalent or superior to the Company's technologies.
Although the Company is not a party to any present litigation regarding
proprietary rights, there can be no assurance that third parties will not assert
intellectual property claims against the Company in the future. Such claims, if
proved, could materially and adversely affect the Company's business and results
of operations. In addition, although any such claims may ultimately prove to be
without merit, the necessary management attention to and legal costs associated
with litigation or other resolution of such claims could materially and
adversely affect the Company's business and results of operations.
The laws of certain foreign countries do not protect intellectual property
rights to the same extent or in the same manner as do the laws of the United
States. Although the Company continues to implement protective measures and
intends to defend its proprietary rights vigorously, there can be no assurance
that these efforts will be successful.
SHARES ELIGIBLE FOR FUTURE SALE. Sale of substantial amounts of the Company's
Common Stock or Warrants in the public market or the prospect of such sales
could materially and adversely affect the market price of the Common Stock and
Warrants. As of November 26, 1996, the Company had outstanding 3,948,094 shares
of Common Stock, which will increase to 6,308,094 shares with the conversion of
the Series A Preferred Stock. In addition, the Company has outstanding Warrants
to purchase an additional 3,046,873 shares of Common Stock. In addition, as of
such date, the Company had granted options under its option plans to purchase an
aggregate of 1,825,620 shares of Common Stock and had granted H.J. Meyers & Co.,
Inc., an investment banking firm, the right to purchase 170,000 shares of Common
Stock and 85,000 Warrants exercisable for 102,850 shares of Common Stock (the
"Representative's Warrant") and the right to purchase 236,000 shares of Series A
Convertible Preferred Stock, convertible into 236,000 shares of Common Stock,
and 118,000 Warrants exercisable for 142,780 shares of Common Stock (the "Sales
Agent's Warrant"). Substantially all of the stock options to purchase Common
Stock and 1,996,823 shares of the outstanding Common Stock are subject to lockup
agreements under which the holders of such shares and options have agreed that,
until March 1997, they will not sell, assign, hypothecate or pledge any of such
shares of Common Stock of the Company owned by them, directly or indirectly,
except with the prior written consent of H.J. Meyers & Co., Inc. Each employee
of the Company is permitted, however, to sell up to 2,000 shares of Common Stock
free of such lockup restrictions. H.J. Meyers & Co., Inc., in its discretion,
could shorten or waive entirely the lockup period either for individual
shareholders or all shareholders. All of the shares purchased under the stock
option plans are available for sale in the public market, subject in some cases
to volume and other limitations, including the lockup agreements referred to
above.
Sales in the public market of substantial amounts of Common Stock
(including sales in connection with an exercise of certain registration rights
by one or more holders of approximately 1,705,000 shares of Common Stock) or the
perception that such sales could occur could depress prevailing
10
<PAGE> 12
market prices for the Common Stock and Warrants. The existence of the Warrants,
the Representative's Warrant, the Sales Agent's Warrant and any other options or
warrants may prove to be a hindrance to future equity financing by the Company.
Further, the holders of such warrants and options may exercise them at a time
when the Company would otherwise be able to obtain additional equity capital on
terms more favorable to the Company.
POSSIBLE VOLATILITY OF STOCK PRICE. The trading price of the Company's Common
Stock and Warrants could be subject to significant fluctuations in response to
variations in quarterly operating results, changes in analysts' estimates,
announcements of technological innovations by the Company or its competitors,
general conditions in the very high performance computer industry and other
factors. In addition, the stock market is subject to price and volume
fluctuations that affect the market prices for companies in general, and small
capitalization, high technology companies in particular, and are often unrelated
to their operating performance.
REDEMPTION OF WARRANTS. The Warrants are subject to redemption at $0.05 per
Warrant on 30 days' prior written notice to the Warrantholders (i) if the
closing bid price of the Common Stock as reported on Nasdaq averages in excess
of 150% of the then current purchase price for one share of Common Stock
underlying the Warrants over a period of 20 consecutive trading days ending
within 15 days of the notice of redemption, or (ii) with the prior written
consent of H.J. Meyers & Co., Inc. In the event the Company elects to redeem the
Warrants, such Warrants would be exercisable until the close of business on the
date fixed for redemption in such notice. If any Warrant called for redemption
is not exercised by such date, it will cease to be exercisable and the holder
will be entitled only to the redemption price. If the Company chooses to
exercise such right to redeem at a time which requires the consent of H.J.
Meyers & Co., Inc., H.J. Meyers & Co., Inc. may use its sole discretion in
determining whether to grant or withhold such consent. H.J. Meyers & Co., Inc.
is under no obligation to grant or withhold such consent under any
circumstances, regardless of the potential effect of such decision on the
Company, its shareholders or the Warrantholders. There can be no assurance that
if the Company chooses to exercise its right to redeem the Warrants at a time
that is not advantageous to the holders of the Warrants, H.J. Meyers & Co., Inc.
will withhold its consent to such redemption, or that if the Company chooses to
exercise its right to redeem the Warrants at a time that is advantageous to the
Company and the shareholders, H.J. Meyers & Co., Inc. will grant such consent.
POSSIBLE ILLIQUIDITY OF TRADING MARKET; REDUCTION IN PUBLIC FLOAT. The Common
Stock and the Warrants are quoted on the Nasdaq SmallCap Market (the "Market").
The Market may be significantly less liquid than the Nasdaq National Market. The
number of shares of Common Stock and Warrants available for resale in the
trading market is limited because of trading restrictions on shares of Common
Stock and Warrants owned by affiliates and the lockup agreements. Moreover, if
the Company should continue to experience losses from operations, it may be
unable to maintain the standards for continued quotation on the Market, and the
Common Stock and the Warrants could be subject to removal therefrom. If such
removal were to occur, trading, if any, in the Common Stock and the Warrants
henceforth would be conducted in the over-the-counter market on an electronic
bulletin board established for securities that do not meet the listing
requirements for the Market, or in what are commonly referred to as the "pink
sheets." As a result, an investor would find it more difficult to dispose of, or
to obtain accurate quotations for the price of, the Company's securities. In
addition, such removal would subject the Company's securities to so-called
"penny stock" rules that
11
<PAGE> 13
impose additional sales practice and market making requirements on
broker-dealers who sell and/or make a market in such securities. Consequently,
removal from the Market could affect the ability or willingness of
broker-dealers to sell and/or make a market in the Company's securities and the
ability of purchasers of the Company's securities to sell their securities in
the secondary market. In addition, if the market price of the Company's Common
Stock falls to below $5.00 per share, the Company may become subject to certain
penny stock rules even if still quoted on the Market. While such penny stock
rules should not affect the quotation of the Company's Common Stock on the
Market, such rules may further limit the market liquidity of the Common Stock
and Warrants and the ability of investors to sell securities in the secondary
market.
NO ANTICIPATED DIVIDENDS. The Company has not previously paid any dividends on
its Common Stock and for the foreseeable future intends to continue its policy
of retaining any earnings to finance the development and expansion of its
business.
EFFECT OF ANTITAKEOVER PROVISIONS. Certain provisions of the Company's Restated
Articles of Incorporation and Restated Bylaws and the laws of the State of
Washington could have the effect of making it more difficult for a third party
to acquire, or of discouraging a third party from attempting to acquire, control
of the Company. Such provisions could limit the price that certain investors
might be willing to pay in the future for shares of Common Stock. The Company is
authorized to issue Preferred Stock, without shareholder approval, with rights
senior to those of the Common Stock and to impose various procedural and other
requirements that could make it more difficult for shareholders to effect
certain corporate actions.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION MATTERS. As permitted by the
Washington Business Corporation Act, the Company has included in its Restated
Articles of Incorporation a provision to eliminate the personal liability of its
directors for monetary damages for breach or alleged breach of their fiduciary
duties as directors, subject to certain exceptions. In addition, the Bylaws of
the Company provide that the Company is required to indemnify its directors
under certain circumstances, including those in which indemnification would
otherwise be discretionary, and the Company is required to advance expenses to
its officers and directors as incurred in connection with proceedings against
them for which they may be indemnified.
12
<PAGE> 14
RECENT EVENTS
The following summarizes significant events with respect to the Company in
1996.
1. PROTOTYPE DEVELOPMENT. In November 1996, the Company announced that its
prototype MTA system, consisting of one computational processor, one I/O
processor and a gigabyte of memory, was undergoing testing and had run its first
programs. The Company has encountered significant delays in the completion of
this prototype, largely due to the difficulties and in some cases failures by
third party suppliers to provide working hardware components. In particular, the
Company suffered significant yield problems and delays with its suppliers of
gallium arsenide integrated circuits, integrated circuit packages, printed
circuit boards and flex circuits. These difficulties caused the Company to
redesign certain components, including alternative integrated circuits for its
prototype and its production systems, leading to a further redesign of all
components of the MTA systems network, to cancel certain contracts with
suppliers of manufacturing components based upon the original designs and to
find alternative suppliers for certain components. A significant part of 1996,
particularly the first eight months, was spent resolving these problems. In
addition to creating delays in the fabrication of the prototype, these problems
caused increased demands upon the Company's financial resources. See "Use of
Cash Resources" below, and "RISK FACTORS - Development Status of the MTA System"
and "- Manufacturing Risks; Reliance On and Capacity Of Third Party Sole Source
Suppliers."
2. INITIAL ORDER. In November 1996 the Company announced that the
University of California at San Diego had ordered the first MTA system
production model for installation and evaluation at the San Diego Supercomputer
Center ("SDSC"), utilizing a grant from the National Science Foundation. The
agreement calls for the phased-in delivery of a MTA system of up to eight
resource modules, for a total consideration to the Company of $4 million.
Initial deliveries under this Agreement are scheduled for the first half of
1997. See "RISK FACTORS - Marketing Risks; Government Funding and Regulation."
3. USE OF CASH RESOURCES. Since its incorporation through September 30,
1996, the Company's principal sources of liquidity have been proceeds from the
sale of equity of approximately $26 million and the Advanced Research Projects
Agency ("ARPA") research funding of approximately $18.5 million. The Company has
received all $15.5 million allowed under its research contract with ARPA for the
initial system development and currently is billing ARPA under a research
contract awarded in September 1995. Billings under this contract are expected to
be approximately $200,000 in 1996. At September 30, 1996, the Company had $2
million in cash and no bank line of credit. The Company's current cash resources
are insufficient to meet its working capital requirements beyond the fourth
quarter of 1996, and although management believes it will be able to secure
requisite funding, there can be no assurance that any additional financing will
be available when needed or, if available, will be on satisfactory terms. See
"RISK FACTORS - Future Capital Needs."
13
<PAGE> 15
4. UNISYS CONTRACT. In December 1995, the Company entered into an agreement
with Unisys Corporation pursuant to which Unisys Advanced Development and
Manufacturing Services Division, located in San Diego, would manufacture and
deliver the Company's MTA systems through 1997 on a turnkey basis. The
arrangement provided to the Company the ability to produce MTA systems without
substantial capital investment and provided it with Unisys' expertise and
expansion capabilities. In mid-1996 Unisys informed the Company that it had, as
a corporate strategic matter, decided to terminate its manufacturing
capabilities. After extended discussions, the Company and Unisys entered into a
substitute agreement pursuant to which Unisys will provide integrated test and
packaging services until June 1997. While the new agreement relieved the Company
from paying significant fees to Unisys for turnkey services, the Company will be
required to finance its own inventory purchases for production of MTA systems.
See "RISK FACTORS Manufacturing Risks; Reliance on and Capacity of Third Party,
Sole Source Suppliers" and "- Future Capital Needs."
5. GOVERNMENT FUNDING. Since its founding the Company has received research
funding from ARPA of approximately $18.5 million, including all $15.5 million
under a 1995 research contract for initial system development of the MTA system.
Under a separate evaluation contract entered into in January 1995, ARPA had
options to purchase up to $20 million of MTA systems for early evaluation. In
the spring of 1996, ARPA informed the Company that it would not exercise these
options. The SDSC previously had submitted a proposal to ARPA to purchase the
first production MTA system under the evaluation contract; the Company and SDSC
have obtained alternative evaluation funding from the National Science
Foundation, as described under "Initial Order" above, and are continuing to seek
additional governmental funding for the purchase of additional resource modules.
In September 1995 the Company entered into a new research contract with ARPA for
the development of certain components of the next generation MTA system. Under
this agreement, ARPA will provide up to $1.75 million to fund the study of
reducing the cost of bandwith by utilizing advanced network and new
compiler technology. The agreement has an initial term of three years, during
which time the Company will perform specified research and development
activities in accordance with the work program set forth in the agreement and
provide periodic progress reports to ARPA. The Company anticipates billings of
approximately $200,000 in 1996 under this contract. See "RISK FACTORS -
Marketing Risks; Government Funding and Regulation."
6. MARKET FOR COMMON EQUITY. The Company's Common Stock and Warrants are
traded on the Nasdaq SmallCap Market under the symbols TERA and TERAW,
respectively. On November 26, 1996, there were 245 holders of record of the
Common Stock and 211 holders of record of the Warrants. The Company has not paid
cash dividends on its Common Stock or Warrants.
14
<PAGE> 16
The quarterly high and low sales prices since September 26, 1995, when the
Company's Common Stock and Warrants began trading publicly, are as follows:
<TABLE>
<CAPTION>
Quarter ended Common Stock Warrants
- ---------------------------- -------------------------------- -----------------------------------
High Low High Low
------------- ----------- ------------- ----------
<S> <C> <C> <C> <C>
September 30, 1995 6 1/2 5 1/4 1 1/2 3/4
December 31, 1995 5 7/8 3 7/8 1 5/8 1 1/8
March 31, 1996 5 31/32 3 3/4 1 11/16 5/8
June 30, 1996 7 1/8 4 1/8 3 3/8 1 1/4
September 30, 1996 5 7/8 3 5/8 2 1/4 1 1/8
</TABLE>
On November 27, 1996, the closing sale price for the Common Stock was $6-1/8 and
for the Warrants was $1-3/4.
These quotations reflect inter-dealer prices, without retail mark-up,
mark-down or commission, and may not represent actual transactions.
15
<PAGE> 17
CAPITALIZATION
The following table sets forth the capitalization of the Company (i) as of
September 30, 1996 and (ii) on a pro forma basis to reflect the conversion of
the Preferred Stock into Common Stock upon this Registration Statement being
declared effective by the Securities and Exchange Commission.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996 (1)
-------------------------
ACTUAL PRO FORMA
-------- ---------
(IN THOUSANDS)
<S> <C> <C>
Long-term portion of capital leases ........................ $ 269 $ 269
Shareholders' equity:
Convertible Preferred stock:
5,000,000 shares authorized; 2,360,000 shares
issued and outstanding; none pro forma shares ..... 6,887 --
Common Stock, $.01 par value:
25,000,000 shares authorized; 3,936,843 shares
issued and outstanding, actual, 6,296,843 shares
pro forma (2) ..................................... 19,105 25,992
Accumulated deficit ................................... (24,830) (24,830)
-------- --------
Total shareholders' equity ........................ 1,162 1,162
-------- --------
Total capitalization ......................... $ 1,431 $ 1,431
======== ========
</TABLE>
- ----------------------
(1) Does not include (i) 1,825,620 shares issuable upon exercise of
outstanding stock options, (ii) 3,046,873 shares of Common Stock issuable
upon exercise of outstanding Warrants, including the Warrants covered
hereby, (iii) 170,000 shares of Common Stock or the Warrants to
purchase an additional 102,850 shares of Common Stock issuable upon
exercise of the Representative's Warrant, or (iv) 236,000 shares of Series
A Convertible Preferred Stock (and the same number of shares of Common
Stock issuable upon conversion thereof) and Warrants to purchase an
additional 142,780 shares of Common Stock issuable upon exercise of the
Sales Agent's Warrant.
(2) If all of the Company's outstanding registered Warrants were exercised,
the Company would issue 3,046,873 shares of Common Stock and receive,
after offering expenses estimated at $50,000, approximately $18,054,973.
These numbers do not reflect additional proceeds, estimated at $3,485,970,
the Company would receive if the Representative's Warrant and the Sale
Agent's Warrant (including the underlying Warrants) were exercised in
full.
16
<PAGE> 18
SELLING SHAREHOLDERS
In connection with the Company's initial public offering, the Company
registered for resale a total of 458,398 previously issued Warrants and the
Common Stock issuable upon exercise of those Warrants from time to time by the
holders thereof.
As part of the 1996 Private Placement, the Company undertook to register
the resale of the shares of Common Stock underlying the shares of Series A
Convertible Preferred Stock and the Warrants, and the resale of the Warrants,
including the Series A Convertible Preferred Stock and Warrants issuable upon
exercise of the Sales Agent's Warrant. Pursuant to its terms, the Series A
Convertible Preferred Stock is automatically converted into shares of Common
Stock on a one-for-one basis upon the effectiveness of the Registration
Statement of which this Prospectus is part.
These shares of Common Stock and Warrants may be sold at any time or from
time to time if a current prospectus relating to such Common Stock and Warrants
is in effect and the securities have qualified for sale. The Company will not
receive any proceeds from the market sales of the shares of Common Stock or
Warrants, although it will receive proceeds from the exercise of such Warrants.
Sales of these shares of Common Stock and Warrants, or even the potential of
such sales, could have an adverse effect on the market prices for the Common
Stock and the Warrants. See "RISK FACTORS - Shares Eligible for Future Sales."
Except as indicated below, no Selling Shareholder is a director or
executive officer of the Company or has a material relationship with the
Company. The Selling Shareholders and the number of shares of Common Stock and
Warrants held by, excluding any shares of Common Stock or Warrants which they
may have purchased in the Company's initial public offering or in the market,
each are listed below.
<TABLE>
<CAPTION>
Selling Shareholder Common Stock Warrants(1)
- ------------------- ------------ -----------
<S> <C> <C>
American High Growth Equities
Retirement Trust 147,058 73,529
Bobby V. Abraham 15,000 13,413
Robert M. Arnold -- 2,523
James Bachesta -- 105
John T. Backus -- 1,892
AUER & Co. 99,558 49,779
Gerald V. Beemiller 7,352 3,676
BFG Investment Co. 400,000 200,000
Douglas P. Beighle -- 3,703
George L. Black, Jr. Trust 7,352 3,676
Preston Briggs -- 666
Alec W. and Cornelia A. Brindle -- 1,182
</TABLE>
17
<PAGE> 19
<TABLE>
<S> <C> <C>
Alan Bunin, M.D. -- 1,773
Cadence Design Systems Computer
Company -- 49,671
C.B. Equities Retirement Trust 60,000 30,000
William Chan and Evelyn Chan 14,704 7,352
John Chenault 14,704 7,352
Maytawee Coleman -- 74
Robert M. Colkitt & Mary Jean
Colkitt 82,350 41,175
Comiteau Family Partnership 30,588 15,294
Vincent F. Coviello, Jr. -- 9,697
Barry J. Cutler -- 1,655
David N. Cutler(3) -- 1,261
S. Joshua Davidson -- 1,182
Max R. Dechantsreiter -- 1,333
Richard W. Denman -- 7,407
Leon de Turenne -- 2,412
Diamond Import Group, Inc. 14,704 7,352
Daniel J. Evans(3) 11,764 5,882
Philip Evans 3,822 1,911
Leon Feldan 7,352 3,676
Feuers Family Trust -- 591
George Fink 7,352 3,676
First Portland Corporation -- 1,064
First Washington Profit Sharing Plan 15,000 7,500
William T. Frantz(4) 294,116 265,532
Earl Freeman 58,822 29,411
Dale D. and Randi Freidig -- 1,182
Phillip F. Frink, Jr. 10,000 8,703
</TABLE>
18
<PAGE> 20
<TABLE>
<S> <C> <C>
David A. Gavrich 7,352 3,676
Globe Corporation -- 2,365
Charles A. Graven 7,352 3,676
Terrence Gray 1,000 --
Girdhari S. and Chanda Gupta -- 615
Omkarnath R. Gupta 15,378 14,356
Omkarnath R. Gupta - IRA 43,726 21,863
Richard Hammons 23,694 11,847
Robert Rettig Henry -- 119
Minda Hevly -- 83
Ann M. Holmberg, D.D.S., Profit
Sharing Plan -- 1,261
John B. Jacobs -- 1,419
Simon Kahan -- 1,212
Laurence Kaplan -- 255
Douglas S. Kelbaugh and
Kathleen K. Nolan -- 633
John F. and Valerie T. Kieser -- 591
Gary Kline -- 222
Maxine L. Koblenz 3,000 1,925
Andy Kopser -- 895
Robert Kutnick 14,704 7,352
Dean C. Laurance -- 6,195
Joan Lawry -- 703
Charles M. Levin and Yvonne 14,704 7,352
Michelle Levin
Mike Levkovitz 7,352 3,676
Gainer Robert Lewis -- 7,447
Lyndhurst Properties Ltd. Profit -- 1,182
Sharing Plan
Philip Markiewicz 7,352 3,676
</TABLE>
19
<PAGE> 21
<TABLE>
<S> <C> <C>
Kenneth Mastrilli 14,704 7,352
Alan O. and Carrol W. Maxwell(4) 89,874 52,425
Alan O. Maxwell Keogh Plan &
Trust(4) 69,998 34,999
Carrol W. Maxwell(4) 7,260 3,630
John McAuliffe 16,176 8,088
John A. McMillan -- 2,365
McMurtry Family Trust 88,234 44,117
Meinl Bank 41,176 20,588
Merit Partners 7,352 3,676
H.J. Meyers & Co., Inc.(5) 236,000 118,000
John R. Miller -- 1,261
Steve S. Miller and Pamela S.
Cowan -- 1,182
James E. Navarre & Sarah Navarre 7,352 3,676
Dorothy L. Nelson 8,000 4,000
Phuoc Nguyen -- 65
Mark L. Niehaus -- 333
Harry J. O'Donnell, Jr. -- 3,406
Brian Ofria & Laura Ofria Family
Trust 14,704 7,352
Miles Ohlrich -- 759
Wayne Ohlrich -- 549
David Olsen -- 88
Paribas Bank 35,294 17,647
Quentin K. And Virginia W.
Peterson 14,000 7,000
Bruce Pirie -- 6,000
Jeffrey T. Pohlman and Linda J. 14,704 7,352
Pohlman
Pruzan Brothers Partnership -- 1,182
</TABLE>
20
<PAGE> 22
<TABLE>
<S> <C> <C>
Charles Puglisi 7,352 3,676
Mark and Jo Dee Ran 862 --
James R. Ratliff 14,704 7,352
Renshaw Investments, L.P. -- 2,365
John H. Resing Retirement Plan 14,706 7,353
Sue Rippe 2,000 --
Richard L. Rome -- 10,416
John C. Rosling -- 662
Robert H. Rosner IRA 7,352 3,676
Steven Rosner Money Purchase Plan 14,704 7,352
James E. Rottsolk(2)(4) -- 8,577
Alan J. Rubin 29,410 14,705
Richard M. Russell 14,704 7,352
Salem Church Partners -- 2,838
Harry A. Salzman & Deborah R. 14,704 7,352
Salzman
Hasmukh D. and Harsha H. Shah -- 630
Burton J. Smith(2)(4) -- 8,577
Michael J. Smith 7,352 3,676
Steven F. Sommers 14,704 7,352
Peter Spitalieri -- 18,518
Stoel Rives LLP -- 2,669
Susan B. Stoller -- 591
The Donald & Lucy Stoner Trust 14,704 21,543
C. Jairus Stratton, III -- 1,182
Snehal Sutaria and Dipti Sutaria 14,704 7,352
Swiss Bank Corporation 88,234 44,117
Ronald C. Thomas & Nancy L.
Thomas Family Trust 7,352 3,676
Wendy Thrash -- 492
Darwin Ting 29,410 14,705
</TABLE>
21
<PAGE> 23
<TABLE>
<S> <C> <C>
Frederick W. Titcomb -- 2,838
John W. Titcomb, Jr.(3)(4) -- 27,525
Tolchin Family Trust 14,704 7,352
Catherine Tompkins as custodian
for Laurie L. Tompkins 1,000 --
Catherine Tompkins as custodian
for Levi L. Tompkins 1,000 --
Cameron L. Truesdell -- 1,773
Jane and Larry Tucker 29,410 14,705
Glen and Nancy Utgaard -- 1,537
Ross Vincent -- 114
Dennis Vollrath -- 333
WB Technology Partners -- 10,786
WBW Trust Number One(4) 60,000 71,148
John H. Waechter 13,560 6,780
Steve Weinberg 7,352 3,676
Dr. Lawrence S. Wiseman IRA 29,410 14,705
Donald G. Witmer 7,352 3,676
Arnold Wong 7,352 3,676
Kerri L. and Gary F. Wood -- 44
Menno van Wyk 7,020 4,621
Hal Wyman -- 4,730
Lina Suet Ming Yam 14,704 7,352
--------- ---------
TOTALS 2,596,000 1,736,077
========= =========
</TABLE>
- -----------------------
(1) Each Warrant presently is exercisable into 1.21 shares of Common Stock at
an exercise price of $7.19 (a per share purchase price of $5.94) through
March 24, 1998, and 1.25 shares of Common Stock at an exercise price of
$8.43 (a per share purchase price of $6.74) thereafter through September
24, 2000.
(2) An officer and director of the Company.
(3) A director of the Company.
(4) A "beneficial owner" of more than 5% of the Company's Common Stock within
the meaning of Item 403 of Regulation S-B.
22
<PAGE> 24
(5) These shares of Common Stock and Warrants are issuable upon exercise of
the Sales Agent's Warrant, which may be exercised at $6.80 per unit, each
unit consists of two shares of Series A Convertible Preferred Stock
(convertible into shares of Common Stock on a one-for-one basis) and one
Warrant.
23
<PAGE> 25
PLAN OF DISTRIBUTION
The shares of Common Stock and Warrants may be sold from time to time by
the Selling Shareholders or by pledgees, donees, transferees or other successors
in interest. Such sales may be made on stock exchanges (including the Nasdaq
SmallCap Market) or otherwise at prices and at terms then prevailing or at
prices related to the then current market price, or in negotiated transactions.
These securities may be sold by one or more of the following methods: (a) block
trades in which the broker or dealer so engaged will attempt to sell the
securities as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal, in a market maker capacity or otherwise, and resale by such broker or
dealer for its account pursuant to this Prospectus; and (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
effecting sales, brokers or dealers engaged by the Selling Shareholders may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from the Selling Shareholders in amounts to be
negotiated immediately prior to the sale.
If any of the following events occurs, this Prospectus will be amended to
include additional disclosure before offers and sales of these shares of Common
Stock or Warrants are made: (a) to the extent such securities are sold at a
fixed price or by option at a price other than the prevailing market price, such
price would be set forth in the Prospectus; (b) if the securities are sold in
block transactions and the purchaser wishes to resell, such arrangements would
be described in the Prospectus; and (c) if the compensation paid to
broker-dealers is other than usual and customary discounts, concessions or
commissions, disclosure of the terms of the transaction would be included in the
Prospectus. The Prospectus also would disclose if there are other changes to the
stated plan of distribution, including arrangements that either individually or
as group that would constitute an orchestrated distribution of the securities.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of these shares of Common Stock or Warrants may not
simultaneously engage in market making activities with respect to any securities
of the Company for a period of at least two (and possibly nine) business days
prior to the commencement of such distribution. Accordingly, in the event that
any broker-dealer, including H.J. Meyers & Co., Inc., is engaged in a
distribution of these shares of Common Stock or Warrants, it will not be able to
make a market in the Company's securities during the applicable restrictive
period. However, no broker-dealer which is a market maker has agreed to and none
are obligated to act as broker-dealer in the sale of these shares of Common
Stock or Warrants and the Selling Securityholders will likely be required, to
sell such securities through a broker-dealer which is not a market maker. In
addition, each Selling Securityholder desiring to sell these shares of Common
Stock or Warrants will be subject to the applicable provisions of the Exchange
Act and the rules and regulations thereunder, including without limitation Rules
10b-6 and 10b-7, which provisions may limit the timing of the purchases and
sales of shares of the Company's securities by such Selling Securityholders.
The Selling Shareholders, such brokers or dealers, and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant to
this Prospectus.
24
<PAGE> 26
EXPERTS
The financial statements of the Company as of December 31, 1994 and 1995
and for each of the two years in the period ended December 31, 1995,
incorporated by reference into this Prospectus, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports with respect
thereto. Such financial statements have been so incorporated in reliance on the
reports of such firm given upon their authority as experts in accounting and
auditing.
LIMITATION OF LIABILITY AND INDEMNIFICATION
The Company's Restated Articles of Incorporation provide that, to the
fullest extent permitted by the Washington Business Corporation Act, the
Company's directors will not be liable for monetary damages to the Company or
its shareholders. The Company's Restated Bylaws provide that the Company will
indemnify its directors and, by action of the Board of Directors, may indemnify
its officers, employees and other agents of the Company to the fullest extent
permitted by applicable law, except for any legal proceeding that is initiated
by such directors, officers, employees or agents without authorization of the
Board of Directors. See "Risk Factors - Limitations on Liability and
Indemnification Matters."
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
25
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All expenses in connection with the issuance and distribution of the
securities being registered will be paid by the Company. The following is an
itemized statement of these expenses:
<TABLE>
<S> <C>
Registration fee ............. $ 6,465.38
Nasdaq listing fee ........... $ 7,500.00
Legal fees ................... $15,000.00
Accountant's Fees ............ $10,000.00
Printing Fees ................ $ 6,000.00
Miscellaneous ................ $ 5,034.62
----------
Total ........................ $50,000.00
==========
</TABLE>
Item 15. Indemnification of Officers and Directors.
Article XII of the Company's Articles of Incorporation and Section 11
of the Company's Bylaws require indemnification of directors, officers,
employees and agents of the company to the fullest extent permitted by the
Washington Business Corporation Act (the "Act"). Sections 23B.08.500 through
23B.08.000 of the Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act.
Section 23B.08.320 of the Act authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article XI of the Company's Articles of Incorporation contains
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Company and its shareholders.
Item 16. Exhibits.
3.1 Restated Articles of Incorporation of the Company(1)
3.2 Restated Bylaws of the Company(1)
3.3 Statement of Rights and Preferences of the Series A
Convertible Preferred Stock of the Registrant, as filed with
the Secretary of State of the State of Washington on May 14,
1996(2)
4.1 Warrant Agreement, dated as of September 25, 1995, between the
Company and First Interstate Bank of Washington, N.A.(1)
4.2 Warrant Agreement, dated May 14, 1996, between the Company and
First Interstate Bank of Washington, N.A.(2)
II-1
<PAGE> 28
5 Opinion of Stoel Rives LLP(1)(3)
10.1 Agreement, dated August 16, 1996, between Unisys Corporation
and the Company
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Stoel Rives LLP (included in Exhibit 5)(1)(3)
24 Power of Attorney
- ------------------
(1) Incorporated by reference to the Company's Registration Statement on
Form SB-2 (Registration No. 33-95460-LA), filed on August 3, 1995
(2) Incorporated by reference to Post-Effective Amendment No. 2 to the
Company's Registration Statement on Form SB-2 (Registration No.
33-95460-LA), filed on August 14, 1996.
(3) Incorporated by reference to the Company's Registration Statement on
Form S-3 (Registration No. 333-12759), filed on September 26, 1996.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, as amended;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement (or the most
recent post-effective amendment thereof)
that, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement; and
(iii) To include any additional or changed
material information with respect to the
plan of distribution;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is incorporated by reference from periodic
reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act.
(2) That, for the purpose of determining any liability
under the Securities Act, each post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered that remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be
II-2
<PAGE> 29
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Seattle, State of
Washington, on December 6, 1996.
TERA COMPUTER COMPANY
By: /s/ James E. Rottsolk
___________________________________
James E. Rottsolk
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed by the following
persons in the capacities indicated below on the 6th day of December, 1996:
Signature and Title
<TABLE>
<S> <C>
/s/ Burton J. Smith* /s/ Daniel J. Evans*
________________________________________ __________________________________
Burton J. Smith Daniel J. Evans, Director
Chairman of the Board of Directors
/s/ James E. Rottsolk /s/ Kenneth W. Kennedy*
________________________________________ __________________________________
James E. Rottsolk Kenneth W. Kennedy, Director
Chief Executive Officer, Chief Financial Officer,
Chief Accounting Officer, and Director
/s/ David N. Cutler* /s/ John W. Titcomb, Jr.*
________________________________________ __________________________________
David N. Cutler, Director John W. Titcomb, Jr., Director
*By /s/ James E. Rottsolk
___________________________________
James E. Rottsolk
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 31
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EX. NO. DESCRIPTION PAGE NO.
<S> <C> <C>
3.1 Restated Articles of Incorporation of the Company(1) --
3.2 Restated Bylaws of the Company(1) --
3.3 Statement of Rights and Preferences of the Series A Convertible
Preferred Stock of the Registrant, as filed with the Secretary of
State of the State of Washington on May 14, 1992(2) --
4.1 Warrant Agreement, dated as of September 25, 1995, between the
Company and First Interstate Bank of Washington, N.A.(1) --
4.2 Warrant Agreement, dated May 14, 1996, between the Company --
and First Interstate Bank of Washington, N.A.(2)
5 Opinion of Stoel Rives LLP(1)(3) --
10 Agreement, dated August 16, 1996, between Unisys Corporation
and the Company --
23.1 Consent of Deloitte & Touche LLP --
23.2 Consent of Stoel Rives LLP(1)(3) --
24 Power of Attorney(1)(3)
</TABLE>
- -------------------
(1) Incorporated by reference to the Company's Registration Statement
on Form SB-2 (Registration No. 33-95460-LA), filed on August 3,
1995.
(2) Incorporated by reference to Post-Effective Amendment No. 2 to
the Company's Registration Statement on Form SB-2 (Registration
No. 33-95460-LA), filed on August 14, 1996.
(3) Incorporated by reference to the Company's Registration Statement
on Form S-3 (Registration No. 333-12759), filed on September 26,
1996.
<PAGE> 1
Exhibit 10.1
CONFIDENTIAL TREATMENT
REQUESTED PURSUANT TO
RULE 406 FOR SELECTED
PORTIONS OF THIS EXHIBIT
Tera Computer Company
and
Unisys Corporation
Date: August 16, 1996
________________
Agreement No.: 0100
_____
Revision: A
<PAGE> 2
CONTENTS
<TABLE>
<S> <C>
1. AGREEMENT ....................................................... 1
2. RECITALS ........................................................ 1
3. DEFINITIONS ..................................................... 1
4. EFFECTIVE DATE AND TERM ......................................... 2
4.1 TERM ........................................................ 2
5. PRODUCTS ........................................................ 2
5.1 PRODUCT LIST ................................................ 2
6. SPECIFICATIONS .................................................. 3
7. ORDERS, SHIPPING, & ACCEPTANCE ................................. 3
7.1 PURCHASE ORDERS ............................................. 3
7.2 DELIVERY .................................................... 3
7.3 SHIPPING AND FOB ............................................ 3
7.4 FORECAST .................................................... 4
7.5 LEAD TIME AND SCHEDULING OF SHIPMENTS ....................... 4
7.6 RESCHEDULING OF PURCHASE ORDERS ............................. 4
7.7 CANCELLATION ................................................ 4
7.8 SOURCE INSPECTION, ACCEPTANCE, AND REJECTION ................ 5
7.9 REJECTION ................................................... 5
8. PRICE, PAYMENT, AND MATERIAL HANDLING ........................... 5
8.1 PROTOTYPE AND NON RECURRING ENGINEERING COSTS ............... 5
8.2 PAYMENT SCHEDULE ............................................ 5
8.3 PRICE SCHEDULE - ASSEMBLY ONLY ............................. 6
8.4 PAYMENT TERMS ............................................... 6
8.5 TERA PROVIDED MATERIAL ...................................... 6
8.6 COST TARGET ................................................. 6
8.7 MAINTAINING RECORDS, ACCESS TO PROPERTIES AND INSPECTIONS ... 6
8.8 SUBCONTRACT MANAGEMENT ...................................... 6
8.9 DISCLOSURE TO SUBCONTRACTORS ................................ 6
8.10 APPROVED SOURCES ........................................... 7
8.11 TAXES ...................................................... 7
8.12 DISCREPANT MATERIAL/ QUALITY ASSURANCE SYSTEM .............. 7
8.13 SERIALIZATION/TRACKING PLAN ................................ 7
9. WARRANTIES AND INDEMNITIES ...................................... 7
9.1 PATENT INDEMNITY ............................................ 7
9.2 BUYER INDEMNITY ............................................. 8
9.3 WARRANTIES .................................................. 8
9.4 WARRANTY EXCLUSIONS ......................................... 8
9.5 DISCLAIMER .................................................. 8
9.6 REMEDY LIMITATION ........................................... 8
9.7 SUPPORT UNDER WARRANTY ...................................... 9
9.8 SELLER RECALLS .............................................. 9
10. LIMITATION OF LIABILITY ........................................ 9
10.1 SELLER LIABILITY LIMITATION ................................ 9
10.2 TERA LIABILITY LIMITATION .................................. 9
10.3 MEDICAL USE EXCLUSION ...................................... 9
10.4 GOVERNMENT CONTRACT CLAUSE ................................. 10
11. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY RIGHTS ....... 10
11.1 PROPRIETARY INFORMATION MARKING ............................ 10
11.2 RIGHTS IN PROPRIETARY INFORMATION .......................... 10
11.3 DUTY OF CARE ............................................... 10
11.4 DURATION OF OBLIGATION ..................................... 10
11.5 JUDICIALLY ORDERED DISCLOSURE .............................. 11
11.6 DISPOSITION OF PROPRIETARY INFORMATION ..................... 11
12. TRADEMARKS, TRADE NAMES AND PUBLICITY .......................... 11
12.1 LICENSING LIMITATION ....................................... 11
12.2 PUBLICITY LIMITATION ....................................... 11
13. TERMINATION .................................................... 11
13.1 TERMINATION FOR CAUSE ...................................... 11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
13.2 OUTSTANDING PURCHASE ORDERS AND MATERIAL DISPOSITION ....... 12
13.3 INTELLECTUAL PROPERTY RIGHTS ............................... 12
14. MISCELLANEOUS .................................................. 12
14.1 INSURANCE .................................................. 12
14.2 CHANGES .................................................... 13
14.3 RESPONSIBILITY FOR PROPERTY ................................ 13
14.4 EXPORT REGULATIONS ......................................... 13
14.5 INDEPENDENT CONTRACTOR ..................................... 13
14.6 ACCESS TO SAN DIEGO MANUFACTURING FACILITY ................. 14
14.7 NON INTERFERENCE ........................................... 14
14.8 GOVERNING LAW .............................................. 14
14.9 ASSIGNMENT ................................................. 14
14.10 FORCE MAJEURE ............................................. 14
14.11 PROGRESSIVE DISPUTE NEGOTIATION PROCEDURES ................ 14
14.12 AGENCY PRODUCT SUBMISSIONS ................................ 15
14.13 HEADINGS .................................................. 15
14.14 INQUIRIES ................................................. 15
14.15 NON WAIVER ................................................ 15
14.16 NOTICES ................................................... 16
</TABLE>
EXHIBIT "A" PRODUCT SPECIFICATIONS
EXHIBIT "B" PROPERTY LISTING
-ii-
<PAGE> 4
1. AGREEMENT
THIS AGREEMENT, effective August 16, 1996, (Effective Date) is made by and
between Tera Computer Company, a Washington Corporation having a place of
business at 2815 Eastlake Avenue East, Seattle, WA, 98102-3027 (hereinafter
Tera), and Unisys Corporation, a Delaware Corporation, having a place of
business at 10850 Via Frontera, San Diego, CA 92127 (hereinafter Unisys).
2. RECITALS
Unisys and Tera entered into an Agreement on December 5, 1995, wherein Unisys is
providing Manufacturing Services to Tera ("hereafter Manufacturing Services
Agreement"); and
Unisys and Tera now wish to replace the Manufacturing Services Agreement with
this Agreement wherein Unisys will provide Assembly and Test Services of
Application Specific Integrated Circuit (ASIC) devices ("hereafter ASIC
Agreement"); and
NOW THEREFORE, in consideration of the premises, and the covenants and promises
of the parties set forth herein, and other good and valuable consideration, the
parties intending to be legally bound, it is agreed as follows:
3. DEFINITIONS
Words shall have their normally accepted meanings as employed in the Agreement.
The terms "herein" and "hereof", unless specifically limited, shall have
reference to the entire Agreement. The word "shall" is mandatory, the word "may"
is permissive, the word "or" is not exclusive, the words "includes" and
"including" are not limiting, and the singular includes the plural unless
otherwise specified. The following terms shall have the described meanings:
3.1 "Assembly" shall mean the process of packaging semiconductor device
Products.
3.2 "Build Package" shall mean a package of data used to manufacture Products
meeting requirements of the Specification and defining the requirements of
Services to be provided by Unisys. The Build Package may include electronic
data, electrical testing requirements, mechanical drawings, component
definition, material definitions, quality requirements, and referenced
specifications, together with such other items as necessary to fully define
Tera's requirements.
3.3 "Delivery Date" shall mean the Product shipping date mutually agreed to and
specified on the Purchase Order or the date that Services or test results are
delivered to Tera.
3.4 "Documentation" shall mean tangible embodiment of Information in eye
readable or machine readable form.
3.5 "Proprietary Information" shall mean information, written, visual, or oral,
or samples of, concerning the disclosing party's current or future products,
business plans, financial information, marketing plans or customer lists, or
other information which is clearly marked as confidential or proprietary,
including but not limited to data, knowledge, know-how, designs, programs
formulas, compilations, and methods, and media embodying same.
3.6 "Manufacturing Process" shall mean the processes by which Unisys can
manufacture Products for Tera.
1
<PAGE> 5
3.7 "Product" shall mean certified (see "Product Certification:) Application
Specific Integrated Circuits (ASIC) in packaged unit form, except "Prototypes",
designed by Tera and manufactured by Unisys for Tera.
3.8 "Product Certification" shall mean "Product manufactured using a certified
process, operators and materials.
3.9 "Prototypes" shall mean initial working development units of the "Product"
that conform to the mutually agreed upon prototype specifications.
3.10 "Services" shall mean the fabrication, assembly and test of the "Product".
3.11 "Specification" shall mean mutually agreed upon data in eye readable or
machine readable form that define physical, mechanical and electrical
characteristics and tolerances of the Products, materials, components, or
applicable Manufacturing Processes for Products or to define Services.
3.12 "Subcontractor" shall mean a manufacturer or supplier under contract with a
party to buy from or build and supply materials or services to such party.
3.13 "Tooling" shall mean drawings, materials, or other physical devices
provided by Tera or made in whole or in part by Unisys and used in
manufacturing, shipping, or testing the Products.
3.14 "Unit Price" shall mean the price for each unit of a specified "Product"
identified in Section 5 and 8, and is the price for assembly and test exclusive
of die and packages.
4. EFFECTIVE DATE AND TERM.
4.1 TERM
This Agreement shall commence on August 16, 1996 and shall remain in effect
through July 30, 1997 and shall be renewed automatically for one (1) year terms
thereafter unless expressly terminated in writing by either party with six (6)
months notice prior to the renewal date hereof.
5. PRODUCTS.
5.1 PRODUCT LIST
The Tera Products covered by this agreement include:
PART NAME PART NO. INTERPOSER NO.
- --------- -------- --------------
MC 32500000 20004100
MD 32500010 20004120
MN 32500020 20004090
MR 32500030 20004110
RF 32500040 20004130
AM 32500050 20004060
ALB 32500060 20004040
C 32500070 20004070
IST 32500080 20004200
SSW 32500090 20004150
TAG 32500100 20004160
ICACHE 32500110 20004080
ALR 32500120 20004050
AA 32500130 20004030
PART NAME PART NO. INTERPOSER NO.
- --------- -------- --------------
IX 32500140 20004000
SNX 32500150 20004140
NM 32500160 20004010
ND 32500170 20004020
SDBC 32500200 20004400
MS2P 32500210 20004210
HO 32500290 20004170
HI 32500300 20004180
NO 32500310 20004190
M5P/MASTER 32500510 20000510
M5P2 32500530 20004230
S5P/SLAVE 32500550 20000550
S5P2 32500570 20004220
Scan3 32500800 20000200
2
<PAGE> 6
The parties may, from time to time, add new Products and specifications, as
applicable, for the new Product or may remove a Product from the terms of this
Agreement, but only by a mutually agreeable amendment to this Agreement.
6. SPECIFICATIONS.
Attached hereto as Exhibit "A" is an outline of the Specifications for the
Product. All Products provided hereunder shall be manufactured in accordance
with the mutually agreed upon Specifications. Tera recognizes that the quality
of Products manufactured using artwork or other materials furnished by Tera
depends on, among other things, the quality of such materials. Unisys shall not
be responsible for any defects in such Products caused by a defect in the
artwork or other material by Tera.
Any changes to the Specification or Build Package will not be effective until
the change is documented in a change order that is agreed upon and is signed by
both parties hereto. Changes may be accepted by either party subject to charges
specified in a change order agreed upon between the parties. With respect to
such change order, and subject to mutual agreement of both parties, Tera shall
pay for all work in process that does not meet the Specifications set forth in
the change order, any special tooling not previously purchased, any inventory
that is purchased by Unisys pursuant to the Build Package that cannot be used to
meet the requirements specified in the change order, and any other direct costs
to Unisys that are associated with the change order.
7. ORDERS, SHIPPING, & ACCEPTANCE
7.1 PURCHASE ORDERS
Tera will order Products by issuing written, facsimile or electronic purchase
orders. Each purchase order will specify items such as: Products, quantity,
delivery, destination, any additional Specifications/Acceptance Criteria (as
applicable), and price. The following statement shall be on the face of Tera's
Purchase Order:
This P.O. issued under the terms and conditions of Agreement 0100 ,
Revision A, dated: August 16, 1996.
7.2 DELIVERY
Unisys shall prepare and pack the Products to prevent damage and deterioration,
and comply with carrier tariffs. Charges for preparation and packing are
included in the Unit Price unless separately specified on the purchase order.
Shipments or deliveries, as specified in this Agreement, shall be strictly in
accordance with: the specified quantities, without shortage or excess; the
specified schedules, neither more than three (3) business days ahead nor more
than two (2) business days behind schedule; and the other requirements of this
Agreement. Unisys shall promptly notify Tera of any anticipated or actual delay,
the reasons thereof, and the actions being taken by Unisys to overcome or
minimize the delay. If requested by Tera, Unisys shall, at Unisys expense, ship
via expedited transportation to avoid or minimize the delay to the maximum
extent possible.
7.3 SHIPPING AND FOB
Unisys shall comply with Tera's directions regarding shipment, including without
limitation the choice of carrier, method of shipment and destination, and shall
be responsible for placing the Products in the hands of the carrier. Unisys
shall at Tera's request, obtain insurance against all losses or damages to the
Products in shipment, in amounts specified by Tera, and cost of such insurance
shall be billable to Tera. Unit Price does not include freight or insurance.
Products will be shipped freight collect if authorized by Tera in advance, or
freight prepaid by Unisys, and Tera will pay the appropriate freight and
insurance charges. Risk of loss and title to the Products shall pass to Tera
upon delivery of the Product
3
<PAGE> 7
to the carrier. Unisys will provide copies or originals of all shipping
documents to Tera on Tera's request, and will cooperate with and assist Tera in
the filing of any claims against the carrier. The FOB point shall be Rancho
Bernardo, California.
7.4 FORECAST
Tera will provide Unisys with a rolling twelve (12) month Product forecast
containing anticipated orders for delivery within that twelve (12) month period.
7.5 LEAD TIME AND SCHEDULING OF SHIPMENTS
Standard lead time for Products is three (3) weeks for a volume not to exceed
500 units per month. Volumes exceeding this limit shall be mutually addressed as
required. The estimated shipping date stated in the purchase orders assumes
timely receipt of the Tera supplied materials; the applicable Build Package and
necessary drawings and artwork or data bases, all of which must be complete and
in sufficient detail to permit Unisys to begin production, and may not be
changed except by written agreement signed by an authorized representative of
each party. There may be occasions when Tera needs to issue purchase orders with
less than the standard lead times. On these occasions, if weekend, holiday, or
overtime costs are required, Unisys may advise Tera that additional compensation
would be required to accomplish these needs. This amount will be referred to as
"Short Lead Time Premium". If mutual agreement is reached on the additional
compensation, a change order to Tera's purchase order will be issued to reflect
the premium charge. If no agreement is reached, Unisys shall not be required to
honor Tera's purchase order requirements for shorter lead times than the
established standard lead times.
7.6 RESCHEDULING OF PURCHASE ORDERS
Unless otherwise agreed between the parties, Tera may reschedule delivery of any
products on a Purchase Order with Unisys within the following guidelines with no
additional charge:
0-21 calendar days from scheduled ship date: No changes
22-60 calendar days from scheduled ship date: pushout up to 30 calendar days
Tera shall not push out any orders beyond the originally scheduled calendar
quarter unless mutually agreed to by both parties. Only one reschedule per
purchase order is allowed. Any efforts to reschedule Products inside the three
(3) week minimum lead time are subject to "Short Lead Time Premium" and mutual
agreement by both parties.
7.7 CANCELLATION
Unless otherwise agreed between the parties, Tera may cancel delivery of any
Products on purchase orders with Unisys within the following guidelines:
Number of calendar days from Cancellation charge
scheduled shipment at expressed as a
time of receipt of notice percentage of Unit Price
0-21 calendar days 100%
22-45 calendar days 50%
Over 45 calendar days 0%, Mutually agreed upon
unique or long lead materials only
Tera shall pay for any supplier cancellation charges, supplier restocking
charges, and for any special materials made obsolete by the cancellation.
4
<PAGE> 8
7.8 SOURCE INSPECTION, ACCEPTANCE, AND REJECTION
Tera reserves the right to inspect all work in process and final Product and
accept or reject such Product or component which is not strictly in conformance
with all of the requirements of this Agreement.
7.9 REJECTION
In the regular course of its business, Tera may reject, refuse acceptance or
revoke acceptance ("rejection" herein) of any or all of the Products or any
tender thereof which are not strictly in conformance with all of the
requirements of this Agreement. Tera shall notify Unisys of such rejection in
writing. At Unisys risk and expense, all such non-conforming Products will be
evaluated within twenty four (24) hours of such notification. All repair,
replacement and other correction shall be accomplished via a Returned Good
Authorization number issued by Unisys within a (2) business day period following
notification of such rejection. Any Product shall be repaired or replaced within
ten (10) business days from date of issuance of Returned Goods Authorization
number, and all required Tera supplied materials are available. Repairs or
replacements shall be accompanied by a written notification specifying that such
items are repaired or are replacements. Any Products repaired or furnished in
replacement shall be subject to all the provisions of this Agreement to the same
extent as Products initially furnished.
8. PRICE, PAYMENT, AND MATERIAL HANDLING.
8.1 PROTOTYPE AND NON RECURRING ENGINEERING COSTS
Costs for the Prototype development, and the Non Recurring Engineering costs
associated with them are as follows:
<TABLE>
<S> <C>
Development of 600 and 380 pin, 50 mil pkg. $*
Development of 420 pin, 40 mil pkg. $*
Development of SCAN 3 pkg. $*
Test Fixturing (Includes probe cards) $*
Test Characterization $*
Upgrade of Facility for Manufacturing $*
Non Recurring Engineering for Board & Subassembly $*
Prototype Support $*
System Mechanical Engineering (Support through August, 1996) $*
ASIC Assembly (includes first 350 ASIC units, assembly only) $*
Board Assembly $*
TOTAL $*
</TABLE>
8.2 PAYMENT SCHEDULE
Payment for the prototype and non recurring engineering charges set forth in 8.1
above are as follows:
<TABLE>
<CAPTION>
Payment Amount Date Due Comments
<S> <C> <C> <C>
Initial payment $* 12-04-95 Start up costs
Payment #2 $* 03-28-96 Non-demo benchmark
prepayment
Payment #3 $* 06-28-96 Start up costs
</TABLE>
* Information Omitted Pursuant to Confidential Treatment Request
5
<PAGE> 9
8.3 PRICE SCHEDULE - Assembly only
<TABLE>
<CAPTION>
Quantity Price
-------- -----
<S> <C>
351 - 560 $*
561 - 875 $*
*Information Omitted Pursuant to Confidential Treatment Request
</TABLE>
Should an interposer cleaning step be required it will be added at $ * each to
the above prices.
Follow-on ASIC assembly, test production Unit Pricing and lead time to be
mutually agreed to by December 31, 1996, in an amendment to this Agreement. The
SC3 packaged devices will have a separate price schedule.
8.4 PAYMENT TERMS
Tera shall issue payment within net thirty (30) calendar days after the receipt
and acceptance of Unisys conforming Product. Unisys shall not issue any invoice
prior to the scheduled or actual delivery date, whichever is later.
Payment will be made after shipment of Product and receipt of correct invoice.
Unisys shall promptly repay to Tera any amounts paid in excess of amounts due
Unisys.
8.5 TERA PROVIDED MATERIAL
Tera shall provide to Unisys on a consigned basis, ASIC device dice in wafer
form and packages as listed in Section 5 to this Agreement. Unisys and Tera,
jointly acknowledge the objective to achieve Product Certification. Unisys shall
not be liable for damage to components or materials resulting from malfunction,
failure or inability to meet specified performance requirements; or for failure
of any testing program to screen any defective components or materials.
Unisys shall not be responsible for delays, loss, or destruction of parts or
materials where unavoidable or beyond its control, but shall notify Tera of any
such loss or destruction. If any such case occurs, Unisys shall be excused from
performance without liability to Tera except for return of payment to Tera for
which Tera has not received consideration.
8.6 COST TARGET
Tera and Unisys shall mutually agree to a cost target for ASIC device
manufacturing services for the Production devices. In the event that there is a
cost improvement over the target cost, Tera and Unisys shall share the savings
equally.
8.7 MAINTAINING RECORDS, ACCESS TO PROPERTIES AND INSPECTIONS
Unisys agrees to maintain financial records in accordance with generally
accepted accounting principles consistently applied throughout the periods
indicated and permit reasonable access during normal business hours to Tera's
authorized representative to visit, audit, and inspect the properties of Tera in
Unisys possession, and all records related to Tera's Product, its manufacture,
and Product direct material costs.
8.8 SUBCONTRACT MANAGEMENT
Unisys is responsible for the management of its
subcontractors/suppliers/vendors. Unisys shall ensure that each lower tier
subcontract contains all applicable specifications, special requirements, and
clauses needed to comply with the requirements of this Agreement. Any technical,
schedule, or cost problems encountered by Unisys or its subcontractors shall be
promptly reported to Tera.
8.9 DISCLOSURE TO SUBCONTRACTORS
Notwithstanding the limitations of Section 11 Unisys is authorized to disclose
to bona fide subcontractors such information as may be necessary to permit them
to perform their contracts with Unisys, provided
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that such subcontractors agree to maintain such information in confidence and to
protect such information from disclosure to others to the same extent required
of Unisys under Section 11.
8.10 APPROVED SOURCES
Unisys shall procure materials from Tera's documented approved sources of
supply. Any proposed substitutions shall constitute a deviation and require the
completion of a deviation authorization, accepted by Tera, before making such
substitution.
Unisys shall use its own specifications and sources of supply for any materials
required for the assembly of "Product" not specified by Tera.
8.11 TAXES
The Unit Price excludes all taxes upon sale of Products which Unisys is required
to pay or collect from Tera. Unisys shall separately state on all invoices any
taxes imposed by federal, state, or local governments applicable to furnishing
the Products or Services. If purchase orders claim exemption for taxes upon the
sale, and Unisys accordingly does not collect such taxes from Tera, Tera agrees
to indemnify Unisys against liability for payment of such taxes. Tera shall
furnish an appropriate exemption certificate as requested by Unisys. Tera shall
pay or reimburse Unisys for the gross amount of any present or future sales,
use, excise, value-added, or other tax applicable to the furnishing of any
Products or Services hereunder, excepting, however, any taxes based on Unisys
income. In the alternative, Tera shall provide Unisys with tax exemption
evidence acceptable to the taxing authorities.
8.12 DISCREPANT MATERIAL/ QUALITY ASSURANCE SYSTEM
Unisys agrees to maintain a Discrepant Material and Quality Control System that
meets the requirements of ISO9001.
8.13 SERIALIZATION/TRACKING PLAN
Unisys agrees to maintain an ASIC serialization/tracking plan that will support
identification of wafer and wafer site to the packaged component.
9. WARRANTIES AND INDEMNITIES
9.1 PATENT INDEMNITY
Unisys agrees to indemnify and hold harmless Tera, its subsidiaries, third
parties and end users, from any liability, damage or expense including but not
limited to legal expenses, arising out of a claim of U.S. patent infringement,
copyright infringement or misappropriation of trade secrets based solely upon
the use or sale of Products; and, such indemnification shall be limited to the
Unisys Assembly process. Unisys agrees to defend or settle at Unisys expense,
all suits or proceedings arising out of any of the foregoing, provided that Tera
shall give Unisys prompt written notice of all suits or threats of suit against
Tera, its Subsidiaries, Third Parties and End Users. In any event, Tera at its
own expense, shall have the right to participate in the defense of any such
action through Tera's own counsel. If any item is held to be an infringement or
misappropriation for which Tera is indemnified by Unisys, and its use is
enjoined, Unisys shall:
a) procure for Tera and its customers the right to utilize the Product
granted herein, or
b) replace or modify it so it becomes non-infringing (without
compromising Tera's intended use of said Products), or
c) if neither of the foregoing is feasible, with the approval of Tera,
remove said Goods and refund the purchase price and the transportation and
installation cost thereof less depreciation.
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Unisys will not be liable to the extent the infringing item has been modified by
any of the parties indemnified thereunder and such modification is the cause of
any such infringement or misappropriation, or if the infringement is due to the
combination of the Product with product not sold or licensed by Unisys
thereunder.
9.2 BUYER INDEMNITY
Tera agrees to indemnify and hold harmless Unisys and its subsidiaries from any
liability, damage or expense including but not limited to legal expenses,
arising out of a claim based upon representations, act, or negligence of Tera,
it subsidiaries or third parties in connection with the promotion, sale or
licensing of Product to end users or a claim of any end user made directly
against Unisys or it subsidiaries based on promotion, sale or licensing of the
Product to end users by Tera, its subsidiaries or third parties. Tera agrees to
defend or settle, at Tera's expense, all suits or proceedings arising out of any
of the foregoing; provided that Unisys shall give Tera prompt written notice of
all suits or threats or suit against Unisys and its Subsidiaries. In any event,
Unisys, at it own expense, shall have the right to participate in the defense of
any such action through its own council.
The obligations of Tera under this Section 9.1 shall be limited to the extent
the claim indemnified against is not a result of any violation by Unisys of its
obligations under this Agreement, or is not a result of any act or negligence of
Unisys.
9.3 WARRANTIES
Unisys warrants to Tera that for a period of twelve (12) months after shipment
to Tera the Product shall: (a) conform in all respects to all of the
requirements and Specifications in this Agreement; and (b) be free from all
defects in workmanship. Because the use to which these Products may be put and
the manner of storage and handling are beyond control of Unisys, this warranty
is limited to defects that can be proven to be present at the time of shipment
or delivery of the Products to the carrier
9.4 WARRANTY EXCLUSIONS
Unisys shall have no obligation under this Section 9 to repair or replace
Products when the defects result from accident, disaster, neglect, abuse,
misuse, transportation, alteration, or improperly performed repairs or
activities once Product has been consigned to carrier and is out of the control
of Unisys.
Warranties granted hereunder are given to and enforceable only by Tera. No
warranties shall be assignable or transferable to subsequent purchasers or
lessors.
9.5 DISCLAIMER
THE WARRANTIES OF THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS, OR IMPLIED, AND UNISYS
DISCLAIMS ALL WARRANTIES OF MERCHANTABILTY AND FITNESS FOR A PARTICULAR PURPOSE,
AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
9.6 REMEDY LIMITATION
The remedies provided in this Section 9 are Tera's sole remedies for any failure
of Unisys to comply with its warranty obligations.
9.7 SUPPORT UNDER WARRANTY
During the warranty period, Tera shall contact Unisys to request repair or
replacement under warranty for Product failure due to a defect in workmanship,
or the manufacturing process defects. Unisys shall promptly repair or replace
such component at no cost to Tera within a reasonable time period. Unisys will
bear all shipping costs, and risk of loss of material in transit in both
directions.
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9.8 SELLER RECALLS
Unisys will bear all shipping costs and risk of loss of material in transit in
both directions for return of all recalls if Unisys notifies Tera of a recall
due to material, manufacturing, or Assembly issues. Replacement will be at
Unisys expense or, if unable to replace, Tera will be credited for the full
amount of the purchase price.
10. LIMITATION OF LIABILITY.
10.1 SELLER LIABILITY LIMITATION
IN NO EVENT WILL UNISYS BE LIABLE FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUES,
PROFITS OR SAVINGS ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH
THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF UNISYS KNEW OR SHOULD HAVE
KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR (B) CLAIMS, DEMANDS OR ACTIONS
AGAINST TERA BY ANY PERSON, EXCEPT AS PROVIDED IN THIS PARAGRAPH. EXCEPT FOR
UNISYS OBLIGATIONS UNDER THIS PARAGRAPH, UNISYS LIABILITY FOR ANY AND ALL
CAUSES, WHETHER BASED ON NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR OTHER LEGAL
THEORY, SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY TERA FOR THE SPECIFIC
PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. TERA ACKNOWLEDGES AND AGREES THAT
THE PURCHASE PRICE FOR THE PRODUCTS AND SERVICES REFLECTS THE ALLOCATION OF
RISKS AND THE LIMITATIONS OF UNISYS LIABILITY HEREUNDER.
10.2 TERA LIABILITY LIMITATION
IN NO EVENT WILL TERA BE LIABLE FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUES,
PROFITS OR SAVINGS ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH
THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF TERA KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (B) CLAIMS, DEMANDS OR ACTIONS
AGAINST UNISYS BY ANY PERSON, EXCEPT AS PROVIDED IN THIS PARAGRAPH.
10.3 MEDICAL USE EXCLUSION
It is agreed that the Products or the services shall not be used or intended for
use in life support devices or systems where malfunction of failure of the
Product can reasonably be expected to result in death or personal injury. Life
support devices or systems are those which: a) are intended for surgical implant
into the body; b) support or sustain life and whose failure to perform, when
properly used in accordance with instruction for use, can reasonably be expected
to result in significant injury to a user. If it is later determined that a
Product or services performed hereunder is used or is to be used in a life
support device or system, Tera hereby expressly agrees to do so at its own risk
and further agrees to indemnify Unisys for any and all damages that may be
incurred due to or resulting from use of the component in a life support device
or system.
10.4 GOVERNMENT CONTRACT CLAUSE
It is agreed that the Products and Services which are to be provided by Unisys
must meet all the terms and conditions that are expressly recited in this
Agreement only; additional terms required for government contracting shall be
the responsibility of Tera.
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11. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
11.1 PROPRIETARY INFORMATION MARKING
Whenever used in this Agreement, the term "Proprietary Information" will mean
information (written, visual, or oral), or samples of, concerning the disclosing
party's current or future products, business plans, financial information,
marketing plans or customer lists, including but not limited to data, knowledge,
know-how, designs, programs formulas, compilations, and methods, and media
embodying same, or other information which is clearly marked as confidential or
proprietary. Notwithstanding the foregoing, the term "Proprietary Information"
will not include any information which (a) was known by the receiving party
prior to receiving the same directly or indirectly from or in connection with
the disclosing party, and without any restriction as to use or disclosure, (b)
is independently developed by the receiving party without use of the Proprietary
Information, (c) is at any time rightfully received from a third party which has
the right and transmits it to the receiving party without any obligation of
confidentiality, or (d) is or becomes a part of the public domain through no
fault or action of the receiving party. Neither party will remove, obscure or
alter any notice of confidentiality, patent, copyright, trade secret or other
proprietary right without the other party's prior written authorization.
11.2 RIGHTS IN PROPRIETARY INFORMATION
Tera and Unisys acknowledge that any Proprietary Information received from the
other party is valuable trade secret, confidential and proprietary information
of the disclosing party. Title, or the right to possess proprietary information,
as between the parties shall, except as otherwise provided herein, remain with
the party which furnishes it to the other party. No rights are granted by either
party to the other with respect to Proprietary Information, except as expressly
stated herein. Neither party shall use, disclose or copy any Proprietary
Information of the other party except for the purposes of and to the extent
necessary for performance under this Agreement, except as expressly stated
herein.
11.3 DUTY OF CARE
Each party shall exercise the degree of care, in no case less than reasonable
care, sufficient to preclude disclosure of the other party's Proprietary
Information to any third party, unless authorized by the disclosing party, and
shall permit disclosure only to its personnel who are involved with the
Agreement and have agreed in writing to be bound by the confidentiality
provisions of this Agreement. The access and use restrictions imposed by each
party under this Section 11.3 will be at least as stringent as those applied to
the receiving party's most valuable confidential and proprietary information.
11.4 DURATION OF OBLIGATION
For a period of five (5) years from the date of disclosure of the Proprietary
Information, each party shall have the obligations stated in this Section 11
regarding Proprietary Information both during and after the expiration,
termination or cancellation of this Agreement, and shall be released from such
obligations only as Proprietary Information is:
(a) at any time in the public domain other than by breach of this
Agreement on the part of the receiving party; or
(b) at any time rightfully received from a third party which has the
right and transmits it to the receiving party without any
obligation of confidentiality; or
(c) independently developed by personnel of the receiving party who
have not had access to Proprietary Information of the other party;
or
(d) rightfully known to the receiving party without any limitation on
use or disclosure prior to receipt thereof from the furnishing
party, as substantiated by tangible evidence antedating disclosure
by the furnishing party to the receiving party.
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11.5 JUDICIALLY ORDERED DISCLOSURE
Neither party is restricted from disclosing Proprietary Information of the other
party pursuant to a judicial or governmental order, but any such disclosure
shall be made only to the extent so ordered and provided only that the party
receiving an order: (1) notifies the other party in a timely manner so that it
may intervene in response to such order, or (2) if timely notice cannot be given
then seeks to obtain a protective order from the court or government for such
information.
11.6 DISPOSITION OF PROPRIETARY INFORMATION
Each party shall promptly return or destroy and certify destruction of all
Proprietary Information furnished by the other party along with all copies
thereof in its possession including copies stored in any computer memory or
storage medium upon demand of the disclosing party or upon the expiration,
termination, or cancellation of this Agreement, whichever first occurs.
12. TRADEMARKS, TRADE NAMES AND PUBLICITY.
12.1 LICENSING LIMITATION
Nothing contained in this Agreement shall be construed as licensing either party
to use any trademark or trade name owned by or used by the other party without
the prior written consent of the other party.
12.2 PUBLICITY LIMITATION
Tera or Unisys shall not, except as may be required by law or federal
regulation, or except with the prior written permission of the other party,
publicly advertise the Agreement or disclose its contents.
13. TERMINATION
13.1 TERMINATION FOR CAUSE
In the event of a material breach of this Agreement by either party, the other
party may, upon not less than sixty (60) calendar days' prior written notice to
the party in breach, terminate this Agreement unless the breach is cured prior
to the end of the notice period. If a material breach is not cured within sixty
(60) calendar days after the notice of default, the other party may pursue its
remedies as follows. Neither party shall exercise these rights without having
first attempted to resolve any dispute in accordance with the provisions of the
Progressive Dispute Negotiation Procedures set forth in Section 14.11.
(a) If Unisys is in material breach of its obligations under Section 9,
WARRANTIES AND INDEMNITIES, Tera's sole and exclusive remedies
shall be as set forth therein.
(b) If Tera is in material breach Unisys may terminate this Agreement
and (1) require Tera to take delivery of and to pay for all
finished Products scheduled for shipment at the time of Tera's
default; (2) discontinue all work-in-process unless Tera requests
completion and delivery and provides assurances of payment therefor
acceptable to Unisys; (3) recover from Tera all costs incurred by
Unisys for raw materials and labor for unfinished Products ordered
by Tera, to the extent that Unisys is unable to return such raw
materials for credit, or apply such raw materials and labor to the
completion of Products for purchase by Tera or other Unisys
customers; (4) recover from Tera all amounts due, but unpaid, for
Products previously shipped to Tera and, (5) pursue any and all
other remedies at law to which Unisys may be entitled.
Should any provision of this Agreement be finally determined to contravene any
applicable law or governmental regulation, such provision shall be automatically
terminated and performance thereof by both parties shall be waived to the extent
of such contravention. Should such provision be considered by either party to be
an essential element of this Agreement, the parties hereto agree to negotiate a
new, applicable provision in good faith.
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13.2 OUTSTANDING PURCHASE ORDERS AND MATERIAL DISPOSITION
Notwithstanding anything in this Agreement to the contrary, Tera, at its option,
may require Unisys to fulfill the terms of any purchase order that has been
accepted by Unisys as of the date of any cancellation, expiration, or
termination of this Agreement. All completed work, raw materials, parts,
work-in-progress, capital tooling, maintenance parts, and consumable supplies in
Unisys possession, which are owned by Tera shall be returned, or disposed of as
directed by Tera in writing. Unisys shall return all proprietary and
confidential tapes, documentation, and any and all related design material which
are owned by Tera to Tera.
13.3 INTELLECTUAL PROPERTY RIGHTS
Unisys grants to Tera a royalty-free, non-exclusive, non-transferable, worldwide
perpetual license under Unisys intellectual property rights, to use and license
others to use, Unisys designs, Manufacturing Processes, drawings, libraries, and
technical data to permit Tera's establishment of a viable alternative source. In
the event this Agreement is allowed to expire, or is canceled or terminated for
any material breach, excluding bankruptcy proceedings under 7 U.S.C. #365(n) and
warranty and indemnity as set forth in Section 9, WARRANTIES AND INDEMNITIES
above, Unisys shall provide reasonable assistance to Tera in locating and
developing a compatible alternate source for Product. Pending the availability
of such alternate source, Unisys shall strive to provide an uninterrupted supply
of Product to Tera. Tera shall use this royalty free, non-exclusive license for
its sole use in Tera's Products. Unisys shall, upon direction of Tera, protect
and preserve property encompassed in this paragraph in the possession of Unisys.
Payment for completed Products delivered to and accepted by Tera shall be in an
amount agreed upon by Unisys and Tera, however, such amount shall not exceed the
Unit Price, and Unisys obligation thereunder to carryout Tera's direction as to
delivery, protection, and preservation shall not be contingent upon prior
agreement as to such amount.
In the event of the commencement of a case against Unisys under the U.S.
bankruptcy laws, whether voluntary or involuntary, Tera may elect to retain its
rights under this Agreement pursuant to 11 U.S.C. #365(n). In this regard, the
designs, Manufacturing Processes, drawings libraries, and technical data
licensed to Tera under Section 12.1(c) shall be deemed to be "intellectual
property" within the meaning of 11 U.S.C. # 101. Unisys obligations under this
Agreement shall be binding on Unisys successors including any trustee or debtor
in possession that may succeed to Unisys rights under this Agreement.
14. MISCELLANEOUS
14.1 INSURANCE
Unisys agrees to carry at all times, a minimum level of insurance of the
following kinds listed below:
<TABLE>
<S> <C> <C>
1. Workers Compensation Statutory limits in each state in
which Unisys is required to provide
Worker's Compensation coverage.
2. Employer's Liability $500,000
3. Blanket General Liability $5,000,000 combined single unit
including completed products and
services and combined single unit
(umbrella).
</TABLE>
Blanket General Liability shall be reviewed annually to assure appropriate
amount of coverage is maintained to protect Tera owned property and materials.
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14.2 CHANGES
Any change in the (a) Product technical requirements and descriptions,
specifications, statement of work, drawings or designs: (b) shipment or packing
methods; (c) place of delivery; (d) amount of Tera furnished material or
property; or (e) Product production methods and processes which may affect form,
fit, function, interchange ability, reliability, or safety of the Products,
shall require the prior mutual, written consent of Tera and Unisys, which
consent shall not be unreasonably withheld. If any such changes causes an
increase or decrease in the cost of or the time required for performance of this
Agreement, an equitable adjustment in the prices and schedules of this Agreement
shall be made to reflect such increase or decrease and this Agreement shall be
modified in writing accordingly. Unless otherwise agreed to in writing, any
Unisys claim for adjustment must be delivered to Tera in writing within forty
five (45) calendar days after a such change.
14.3 RESPONSIBILITY FOR PROPERTY
Unless otherwise specified, Unisys assumes responsibility for any theft, loss,
or damage, other than ordinary wear and tear, for tooling, materials, parts,
data, and any other property of Tera's, upon its delivery to Unisys or its
manufacture or acquisition by Unisys on Tera's behalf. Property owned by Tera
and provided to Unisys for Unisys use in relation to the manufacture and
delivery of Products will be identified in Exhibit "B", hereto. Unisys agrees to
update this listing quarterly for the first year, and annually thereafter and
amend it to this Agreement. All tooling, fixturing, and equipment paid for
directly, or indirectly through Non Recurring Engineering Charges are the
property of Tera.
Unisys will on Tera's request affix suitable labels that indicate Tera's
ownership of tooling, fixtures, equipment, materials, parts, data, and any other
property of Tera's covered by this Section , and such property. Unisys will on
request execute and deliver to Tera for filing in any relevant jurisdiction one
or more UCC-1 Financing Statements, indicating Tera's ownership of such property
and its consignment or bailment to Unisys pursuant to this Agreement.
Upon Tera's request, Unisys shall promptly return such property to Tera in the
condition received by Unisys, ordinary wear and tear accepted. Unisys agrees
that it is obligated to return such property to Tera, notwithstanding any
pending dispute between the parties, including but not limited to disputes
related to the quality or quantity of Products delivered and disputes related to
amounts owed by one party to the other.
14.4 EXPORT REGULATIONS
Tera acknowledges that if the Products purchased hereunder are to be exported,
they may be subject to the US Commerce Department or State Department Export
Regulations, and Tera accepts full responsibility for and agrees to fully comply
with such regulations, including obtaining export licenses and re-export
permission, and agrees to hold Unisys harmless from all claims, damages, fines,
or charges that may arise due to Unisys failure to so comply.
14.5 INDEPENDENT CONTRACTOR
In providing Products or Services hereunder, Unisys is acting as an independent
contractor and not as an agent of Tera. Neither party has the authority
hereunder to assume or create any obligation or responsibility, express or
implied, on behalf of, or in the name of the other party hereto, in any way
whatsoever.
14.6 ACCESS TO SAN DIEGO MANUFACTURING FACILITY
Unisys shall provide free access to the manufacturing areas and Manufacturing
Processes designated for manufacture and Assembly of Products for designated
Tera employees.
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14.7 NON INTERFERENCE
Each Party agrees not to hire, or seek to hire any employee of the other during
the Term of this Agreement or for a period of six (6) months after termination
hereof without prior written consent and approval of both parties.
14.8 GOVERNING LAW
This Agreement shall be governed by the laws of the State of Washington except
with respect to conflict of laws and constitutes the complete agreement between
the parties. Each party will comply with all applicable federal, state, and
local laws, regulations and ordinances including, but not limited to, the
regulations of the U.S. Government relating to export and re-export of software
and technical data. The parties agree to comply with the letter and spirit of
all laws, ordinances, codes, rules, regulations, license and permit provisions,
guidelines, and directives of any other, state or federal governmental authority
having appropriate jurisdiction over environmental protection.
14.9 ASSIGNMENT
A party's rights under this Agreement may not be assigned in whole or in part by
operation of law or otherwise without the other party's prior express written
consent, and any attempted assignment of any rights, duties or obligations
hereunder without such consent shall be void; provided, however, that if Unisys
sells substantially all of its assets required to complete its obligations under
this Agreement, Tera shall, at its sole discretion, have the option to terminate
this Agreement, or to require the Purchaser of such assets of Unisys to assume
all of Unisys obligation under this Agreement.
14.10 FORCE MAJEURE
Neither party shall be liable or be in breach of this agreement if the
performance of this Agreement or of any obligation hereunder (except payment of
monies due) is prevented, restricted or interfered with by any act or condition
beyond the reasonable control of the party affected thereby, including without
limitation: fire or other casualty or accident; strikes or labor disputes; war
or other violence; unavailability of or delays in procuring materials, power or
supplies; or any law, order, proclamation, regulation, ordinance, demand or
requirement of any governmental or intergovernmental agency or body. The party
so affected shall be excused from such performance to the extent of such
prevention, restriction or interference and shall promptly give notice of such
prevention, restriction, or interference to the other party. If such Force
Majeure prevents or delays the performance of Unisys hereunder, Tera may, at its
option, either (a) delete from this Agreement any quantities of the products it
otherwise should have purchased from Unisys but for such Force Majeure event and
shall receive credit, or (b) may extend the Agreement for a period of time equal
to the period of Force Majeure of Unisys.
14.11 PROGRESSIVE DISPUTE NEGOTIATION PROCEDURES
This section will govern any dispute between the parties arising from or related
to the subject matter of this Agreement that is not resolved by agreement
between the respective personnel of the parties for day to day administration
and performance of the Agreement. Prior to filing of any suit with respect to
such a dispute (other than a suit seeking injunctive relief with respect to
intellectual property rights), the party believing itself aggrieved (the
"Invoking Party") will call for progressive management involvement in the
dispute negotiation by written notice to the other party. Such a notice will be
without prejudice to the Invoking Party's right to any other remedy permitted by
this Agreement.
The parties will use their best efforts to arrange personal meetings or
telephone conferences, as needed, at mutually convenient times and places
between negotiators for the parties at the following successive management
levels, each of which will have a period of allotted time, as specified below,
in which to attempt to resolve the dispute.
Level TERA UNISYS Allotted Time
----- ---- ------ -------------
First Program Program 10 business days
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Manager Manager
Second Division VP Division VP 20 business days
Third Designated Designated 30 business days
Corporate Corporate
Officer Officer
No resolution of disputes involving intellectual property or patents will be
undertaken without first consulting and obtaining the consent of the
Intellectual Property/legal counsel of both parties. The allotted time for the
first level negotiators will begin on the effective date of the Invoking Party's
written notice.
If resolution is not achieved by negotiators at any given management level at
the end of their allotted time, then the allotted time for the negotiators at
the next management level, if any, will begin immediately. If resolution is not
achieved by negotiators at the final level within the allotted time, the parties
agree within forty-five (45) calendar days to select a form of alternative
dispute resolution (ADR) from informal non binding arbitration, private judging,
mini-trial, summary jury trial, moderated settlement conference, mediation or
other, and negotiate and ADR agreement for an ADR process. The ADR agreement
shall at least include provisions governing the ADR procedure, rules, discovery,
timing and cost allocations. In no event will such ADR process result in the
imposition of any element of punitive damages in the event of any awards.
If the ADR agreement is not agreed to by the parties within the time as set
forth in this Section 14.11 hereof, then either party may bring suit to resolve
the dispute in a court of competent jurisdiction. In the event of any material
breach between the parties hereto relating to this Agreement or the breach of
this Agreement, the prevailing party in any resulting litigation shall be
entitled to recover from the other party thereto the costs and expenses,
including reasonable attorneys fees, incurred in taking or defending such
action, including on any appeal.
14.12 AGENCY PRODUCT SUBMISSIONS
If Tera seeks regulatory or safety agency approval for Product, Unisys shall
cooperate and fully support Tera. Such cooperation primarily shall consist of
providing design and test data to support the submission.
14.13 HEADINGS
The Section headings are provided for ease of reference and do not form a part
of the Agreement, and shall not be used in interpretation or governing the
meaning of the Agreement.
14.14 INQUIRIES
If any governmental agency contacts Unisys to inquire about or investigate any
product manufactured by Unisys or Tera, Unisys shall use its best efforts to
give notice thereof to Tera within 24 hours of receipt of such contact.
14.15 NON WAIVER
These terms and conditions set forth the entire understanding between the
parties with reference to the subject matter hereof. The failure of either party
to enforce at any time any of the provision hereof shall not constitute a waiver
of such provision or a waiver of the right to enforce any or all provision at
another time. Any modification to this Agreement shall be by mutual agreement,
shall be in writing, and attached as an addendum to this Agreement.
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14.16 NOTICES
Any notice given under this agreement shall be written or sent by facsimile.
Written notice shall be sent registered or certified mail, postage prepaid,
return receipt requested, or by any other overnight delivery service which
delivers to the noticed destination, and provides proof of delivery to sender.
Any facsimile notice must be followed within three (3) business days by written
notice. All notices shall be effective when first received at the following
addresses:
If to Tera: If to Unisys:
- ----------- -------------
Tera Computer Company Unisys Corporation
2815 Eastlake Ave. E. 10850 Via Frontera
Seattle, WA 98102 San Diego, CA 92127
Attn: Carol Zimmerman Attn: Robert Belzman
16
<PAGE> 20
In WITNESS WHEREOF, The authorized representatives of the parties have executed
this agreement under seal as of the date(s) set forth below.
DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE INCLUDED HEREIN.
<TABLE>
<CAPTION>
TERA COMPUTER COMPANY UNISYS CORPORATION
<S> <C>
By: _______________________________ By: ___________________________
Printed: __________________________ Printed: ______________________
Title: _____________________________ Title: _________________________
Date: _____________________________ Date: _________________________
</TABLE>
17
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Post Effective Amendment No. 3 on
Form S-3 to Form SB-2 Registration Statement of Tera Computer Company of the
reports of Deloitte & Touche LLP dated January 30, 1996 appearing in the Annual
Report on Form 10-KSB of Tera Computer Company for the year ended December 31,
1995, and to the reference to Deloitte & Touche LLP under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
Seattle, Washington
December 5, 1996
