-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Pf0oQE78CnKd4dez2AWmsCuifaWqG8ALSY37v4wOphvDfwKjed8u2Ti7r2NhC1WN SRRtU/QX18jMVkvcbPV2Cg== 0000950153-05-002392.txt : 20050916 0000950153-05-002392.hdr.sgml : 20050916 20050916160703 ACCESSION NUMBER: 0000950153-05-002392 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20041210 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050916 DATE AS OF CHANGE: 20050916 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BRILLIAN CORP CENTRAL INDEX KEY: 0001232229 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 050567906 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-50289 FILM NUMBER: 051089197 BUSINESS ADDRESS: STREET 1: 1600 NORTH DESERT DRIVE CITY: TEMPE STATE: AZ ZIP: 85281-1230 BUSINESS PHONE: 6023898888 MAIL ADDRESS: STREET 1: 1600 NORTH DESERT DRIVE CITY: TEMPE STATE: AZ ZIP: 85281-1230 8-K/A 1 p71218e8vkza.htm 8-K/A e8vkza
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K/A

Amendment No. 1

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

     
December 10, 2004
Date of Report (Date of earliest event reported)

BRILLIAN CORPORATION

(Exact Name of Registrant as Specified in Charter)
         
DELAWARE   000-50289   05-0567906
  		 
  		 
 
(State or Other
Jurisdiction of Incorporation) 		  (Commission File Number)   (IRS Employer
Identification No.)
     
1600 N. DESERT DRIVE
TEMPE, ARIZONA
85281
(Address of Principal Executive Offices) (Zip Code)
     
(602) 389-8888
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

     
o
  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
    
o
  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
    
o
  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
    
o
  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

TABLE OF CONTENTS

Item 1.01. Entry into a Material Definitive Agreement
Item 2.01. Completion of Acquisition or Disposition of Assets.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
EX-10.11
EX-10.12
EX-10.13
EX-10.14

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EXPLANATORY NOTE

     This Amendment No. 1 to Form 8-K of Brillian Corporation (the “Company”) amends the Company’s Form 8-K dated December 10, 2004, originally filed with the Securities and Exchange Commission on December 16, 2004 (the “Original Filing”). The Company is filing this Amendment No. 1 to refile certain exhibits in order to include certain information that was omitted from those exhibits in the Original Filing. No other changes have been made to the Original Filing. This Amendment No. 1 continues to speak as of the date of the Original Filing, and the Company has not updated the disclosures contained therein to reflect any events that occurred at a date subsequent to the date of the Original Filing.

Item 1.01. Entry into a Material Definitive Agreement

     On December 10, 2004, Brillian Corporation (the “Company”) entered into a series of agreements with JDS Uniphase Corporation (“JDSU”) pursuant to which the Company (i) sold certain assets to JDSU for $5.1 million, (ii) purchased or leased certain equipment and products from JDSU to be used in the production of light engines, and (iii) licensed from JDSU certain technology to be used in the production of light engines.

     Under the Share Purchase Agreement dated as of December 10, 2004, by and between the Company and JDSU, the Company sold to JDSU 500,000 shares of Series B Preferred Stock of ColorLink, Inc., a Delaware corporation (the “Shares”). The aggregate purchase price for the Shares was $5.1 million. The Company also assigned to JDSU all of its rights to the Investors’ Rights Agreement dated as of July 12, 2002, by and among the Company, Colorlink, Inc., and certain other parties. The Share Purchase Agreement is attached hereto as Exhibit 10.11.

     Under the Non-Exclusive License Agreement dated as of December 10, 2004, by and between the Company and JDSU, JDSU licenses to the Company certain proprietary technology and know-how to be used in the production of light engines. The license is a non-exclusive, royalty-bearing license. The Non-Exclusive License Agreement is attached hereto as Exhibit 10.12. An application has been submitted to the Securities & Exchange Commission for confidential treatment, pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, of portions of the Non-Exclusive License Agreement relating to the duration of the license, the technology and know-how subject to the license, and the royalty payment terms of the license. These portions have been omitted from Exhibit 10.12 filed with this Report.

     Under the Letter Agreement dated as of December 10, 2004, by and between the Company and JDSU, the Company agreed to purchase from JDSU certain products to be used in the production of light engines. The Letter Agreement is attached hereto as Exhibit 10.13. An application has been submitted to the Securities & Exchange Commission for confidential treatment, pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, of portions of the Letter Agreement relating to pricing. These portions have been omitted from Exhibit 10.13 filed with this Report.

     Under the Equipment Loan Agreement dated as of December 10, 2004, by and between the Company and JDSU, JDSU has loaned to the Company certain equipment to be used in the production of light engines. The Equipment Loan Agreement is attached hereto as Exhibit 10.14. An application has been submitted to the Securities & Exchange Commission for confidential treatment, pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, of portions of the Equipment Loan Agreement relating to the equipment being loaned. These portions have been omitted from Exhibit 10.14 filed with this Report.

Item 2.01. Completion of Acquisition or Disposition of Assets.

     The disclosure provided in Item 1.01 of this report is hereby incorporated by reference into this Item 2.01 with respect to the Share Purchase Agreement attached hereto as Exhibit 10.11.

 

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Item 9.01. Financial Statements and Exhibits.

  (a)   Financial Statements of Business Acquired.
 
      Not applicable.
 
  (b)   Pro Forma Financial Information.
 
      Not applicable.
 
  (c)   Exhibits.

     
Exhibit    
Number
   Exhibits
10.11
  Share Purchase Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation.
 
    
10.12
  Non-Exclusive License Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *
 
    
10.13
  Letter Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *
 
    
10.14
  Equipment Loan Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *

*   An application has been submitted to the Securities & Exchange Commission for confidential treatment, pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, of portions of this exhibit. These portions have been omitted from this exhibit.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

         
    BRILLIAN CORPORATION
 
        
Date: September 16, 2005
  By:   /s/ Wayne A. Pratt
     
 
      Wayne A. Pratt
Vice President and Chief Financial Officer

 

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EXHIBIT INDEX

10.11   Share Purchase Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation.
 
10.12   Non-Exclusive License Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *
 
10.13   Letter Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *
 
10.14   Equipment Loan Agreement dated as of December 10, 2004, by and between the Company and JDS Uniphase Corporation. *

*   An application has been submitted to the Securities & Exchange Commission for confidential treatment, pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, of portions of this exhibit. These portions have been omitted from this exhibit.

 

EX-10.11 2 p71218exv10w11.txt EX-10.11 Exhibit 10.11 SHARE PURCHASE AGREEMENT This SHARE PURCHASE AGREEMENT (this "Agreement") is entered into as of December 10, 2004, by and between JDS UNIPHASE CORPORATION, a Delaware corporation ("Buyer") and BRILLIAN CORPORATION, a Delaware corporation ("Seller"). RECITALS A. Seller owns 500,000 shares of Series B Preferred Stock (the "Shares") of ColorLink, Inc., a Delaware corporation (the "Company"). B. Buyer and Seller desire that Buyer acquire the Shares on the terms and conditions hereinafter set forth. C. Buyer and Seller supply each other products, and certain disputes have arisen between Buyer and Seller that they wish to resolve in accordance with a Master Agreement to be executed between them concurrently with, and as a condition to, the Closing (as hereinafter defined). AGREEMENT NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows: ARTICLE I PURCHASE OF SHARES 1.1 PURCHASE OF SHARES. At the Closing (as hereinafter defined), Seller shall sell, convey, transfer, assign and deliver upon the terms and conditions hereinafter set forth, to Buyer, free and clear of all liens, pledges, claims, and encumbrances of every kind, nature, and description, and Buyer shall purchase and accept from Seller, the Shares. 1.2 PURCHASE PRICE. (a) PURCHASE PRICE. The purchase price for the Shares to be sold pursuant to Section 1.1 above shall be $5,100,000 (the "Purchase Price"). (b) PAYMENT OF PURCHASE PRICE. The Purchase Price less the sum of $362,664 for amounts owing from Brillian to JDSU at the date hereof for products previously shipped by JDSU to Brillian (the "Accounts Payable") shall be paid in full at the Closing by cash or wire transfer of same day funds. 1.3 TRANSFER OF RIGHTS. Effective upon transfer of the Shares to Buyer, Seller shall assign all of its rights to the Investors' Rights Agreement, dated as of July 12, 2002 (the "Rights Agreement"), by and among the Company, Seller (pursuant to an assignment from Three-Five Systems, Inc., Seller's predecessor in interest), Intel Corporation and Viewsonic Corporation. 1.4 CLOSING. The closing of the purchase and sale of the Shares (the "Closing") shall take place at the offices of Greenberg Traurig, LLP, located at 2375 East Camelback Road, Suite 700, Phoenix, Arizona 85016, at 10:00 a.m. local time, on December 10, 2004, or at such other time and place upon which the parties mutually agree (the "Closing Date") 1.5 ACTIONS AT THE CLOSING: (a) Seller shall deliver (or cause to be delivered) to Buyer a stock certificate representing the Shares accompanied by a stock power duly endorsed in blank against payment of the Purchase Price therefore in accordance with the provisions of Section 1.2 above; (b) Seller shall execute and deliver to Buyer an Assignment Separate from Certificate, substantially in the form attached hereto as Exhibit A (the "Assignment"); (c) Buyer shall deliver to Seller the Purchase Price less the Accounts Payable, in U.S. dollars by wire transfer of immediately available U.S. funds to the account designated by the Seller; (d) Buyer and the Seller shall execute and deliver to each other a cross-receipt evidencing the transactions referred to above in clauses (a) through (c) (the "Cross-Receipt"); and (e) Buyer shall receive from counsel to the Seller an opinion, substantially in the form attached hereto as Exhibit B, addressed to Buyer and dated as of the Closing Date (the "Legal Opinion"). 1.6 FURTHER ASSURANCES. Seller shall use its reasonable commercial efforts to obtain the consent of the Company to transfer all of Seller's rights to the Rights Agreement, including without limitation the board observer rights set forth in Section 2.6 in the Rights Agreement. In addition, from time to time after the Closing, Seller, at Buyer's request and without further consideration, agrees to execute and deliver or to cause to be executed and delivered such other instruments of transfer as Buyer may reasonably request to transfer to Buyer more effectively the right, title, and interest in or to the Shares and to take or cause to be taken such further or other action as may reasonably be necessary or appropriate in order to (i) effectuate the transactions contemplated by this Agreement, (ii) assist the Buyer in exercising all rights with respect thereto, and (iii) carry out the purpose and intent of this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Buyer, as of the date hereof, as follows: (a) ORGANIZATION. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. (b) CORPORATE POWER; AUTHORIZATION; BINDING OBLIGATION. Seller has all requisite corporate power and authority to enter into and perform its obligations under this 2 Agreement, to transfer, convey and sell to Buyer at the Closing the Shares to be sold by Seller hereunder and to carry out the transactions contemplated hereby. The Board of Directors of Seller has duly authorized the execution and delivery of this Agreement and the other transactions contemplated hereby and no other corporate proceedings on the part of Seller are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding obligation of Seller enforceable in accordance with its terms. The execution, delivery, and performance by Seller of this Agreement does not and will not conflict with, or result in any violation of or default under, with or without the giving of notice or the passage of time or both, (i) any provision of the Certificate of Incorporation or Bylaws of Seller, or (ii) any provision of any law, ordinance, rule, regulation, judgment, order, decree, agreement, instrument, or license applicable to Seller or to any of its properties or assets. No third party consent or other consent, approval, order, or authorization of, or registration, declaration, or filing with, any court, administrative agency, or commission or other governmental authority or instrumentality, domestic or foreign, is required by or with respect to Seller in connection with its execution, delivery, or performance of this Agreement. (c) TITLE TO SHARES. Seller has good and marketable title to the Shares free and clear of all voting trust arrangements, liens, security interests, pledges, charges, claims, or encumbrances of any nature whatsoever. (d) NO BROKER'S OR FINDER'S FEES. No agent, broker, investment banker, person, or firm acting on behalf of Seller is or will be entitled to any broker's or finder's fee or any other commission or similar fee in connection with any of the transactions contemplated herein. (e) OWNERSHIP. Other than the Shares held of record and beneficially by Seller, Seller does not hold of record or beneficially any other shares in the capital or other equity interests of either the Company or any Subsidiary (as defined below) of the Company which are issued and outstanding on the date hereof. For purposes of this Agreement, "Subsidiary" shall mean each corporation, partnership, limited liability company, joint venture or other entity in which the Company has, directly or indirectly, and equity interest therein. (f) NO OTHER AGREEMENTS. Except for (i) the Series B Convertible Preferred Stock Purchase Agreement, dated as of July 12, 2002 (the "Series B Agreement"), between the Company and Seller (pursuant to an assignment from Three-Five Systems, Inc., a Delaware corporation, Seller's predecessor-in-interest), and (ii) the Rights Agreement, there are no written or oral contracts, agreements, commitments, understandings or arrangements with respect to the Shares. 2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to Seller, as of the date hereof, as follows: (a) ORGANIZATION. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. (b) CORPORATE POWER; AUTHORIZATION; BINDING OBLIGATION. Buyer has all requisite corporate power and authority to enter into and perform its obligations under this Agreement. All corporate acts and other proceedings required to be taken by Buyer to authorize 3 the execution, delivery, and performance by Buyer of this Agreement and the transactions contemplated hereby, have been duly and properly taken. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms. The execution, delivery, and performance by Buyer of this Agreement does not and will not conflict with, or result in any violation of, any provision of the Certificate of Incorporation or Bylaws of Buyer, or any provision of any law, ordinance, rule, regulation, judgment, order, decree, agreement, instrument, or license applicable to Buyer or to its property or assets. No consent, approval, order, or authorization of, or registration, declaration, or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, is required by or with respect to Buyer in connection with its execution, delivery, or performance of this Agreement. ARTICLE III ADDITIONAL AGREEMENTS 3.1 EXPENSES. Whether or not the transactions contemplated hereby are consummated, all costs and expenses incurred by Buyer or Seller in connection with this Agreement and the transactions contemplated hereby, shall be paid by the party incurring such costs. 3.2 PRESS RELEASES. None of the parties hereto shall issue a press release or other publicity announcing the purchase of the Shares or any other aspect of the transactions contemplated hereby without the prior written approval of the other party, unless applicable law requires such disclosure. ARTICLE IV GENERAL PROVISIONS 4.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND AGREEMENTS. All representations, warranties, and agreements in this Agreement or any instrument delivered pursuant to this Agreement shall survive the Closing. 4.2 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4.3 GOVERNING LAW. This Agreement shall be governed in all respects, including validity, interpretation, and effect, by the laws of the State of Delaware. 4.4 CONFIDENTIALITY. Each party agrees to maintain the terms of this Agreement in strict confidence, and agrees that it will not disclose the terms of this Agreement to any other person (other than its attorneys and accountants) unless required by applicable law, rule or regulation or with the prior written consent of the other party. 4.5 BENEFIT. This Agreement shall inure to the benefit of and be binding upon the parties' respective agents, employees, officers, directors, shareholders, parents, subsidiaries, related entities, affiliates, attorneys, successors and assigns. 4.6 SEVERABILITY. All provisions contained herein are severable and in the event that 4 any of them shall be held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such provision shall be construed as if it were written so as to effectuate to the greatest possible extent the parties' expressed intent; and in every case the remainder of this Agreement shall not be affected thereby and shall remain valid and enforceable, as if such affected provision were not contained herein. 4.7 AMENDMENT. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 5 IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the date first written above. BUYER: JDS UNIPHASE CORPORATION By: /s/ Christopher S. Dewees ------------------------------------ Christopher S. Dewees Senior Vice President SELLER: BRILLIAN CORPORATION By: /s/ Wayne A. Pratt ------------------------------------ Wayne A. Pratt Vice President and CFO 6 EXHIBIT A ASSIGNMENT SEPARATE FROM CERTIFICATE FOR VALUE RECEIVED and pursuant to that certain Share Purchase Agreement, by and among the undersigned ("Transferor") and JDS Uniphase Corporation ("Transferee"), dated December 10, 2004 (the "Agreement"), Transferor hereby sells, assigns and transfers unto Transferee 500,000 shares of the Series B Preferred Stock of ColorLink, Inc., a Delaware corporation (the "Company"), standing in Transferor's name on the Company's books and represented by Certificate No. B-1, and does hereby irrevocably constitute and appoint the Secretary of the Company to transfer said stock on the books of the Company with full power of substitution in the premises. Dated: December 10, 2004 Signature: BRILLIAN CORPORATION By: /s/ Wayne A. Pratt ------------------------------------- Wayne A. Pratt Vice President and CFO Address: 1600 N. Desert Drive Tempe, AZ 85281 EXHIBIT B FORM OF LEGAL OPINION OF COUNSEL TO SELLER 1. Seller is duly organized, validly existing and in good standing under the laws of Delaware. 2. Seller has the requisite corporate power and authority to conduct its business as it is currently being conducted, to execute and deliver the Agreement and to consummate the transactions contemplated thereby. 3. Seller has good and marketable title to the Shares, free and clear of all liens, security interests and encumbrances. 4. The Agreement has been duly authorized, executed and delivered by Seller. The Agreement constitutes the valid and legally binding obligation of the Seller, enforceable against Seller in accordance with its terms. 5. Neither the execution and delivery by Seller of the Agreement nor the consummation by Seller of the transactions contemplated thereby will, with or without the giving of notice or the passage of time or both, (a) violate the provisions of any law, rule or regulation applicable to Seller; (b) violate the provisions of the Certificate of Incorporation or Bylaws of Seller each as in effect on the date hereof; or (c) violate any judgment, decree, order or award of any court, governmental body or arbitrator specifically naming Seller of which we are aware. EX-10.12 3 p71218exv10w12.txt EX-10.12 EXHIBIT 10.12 [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. NON-EXCLUSIVE LICENSE AGREEMENT THIS NON-EXCLUSIVE LICENSE AGREEMENT ("Agreement") is made by and between JDS Uniphase Corporation, a Delaware corporation having offices at 1768 Automation Parkway, San Jose, CA 95131 ("Licensor"), and Brillian Corporation, a Delaware corporation having offices at 1600 N. Desert Drive, Tempe, AZ 85281 ("Licensee"). NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter recited, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows: I. DEFINITIONS: (a) "Effective Date" means the date upon which this Agreement is signed by the Licensor and the Licensee. (b) "Licensed Product" means a Light Engine incorporating or manufactured with the Licensed Technology, made or sold by Licensee. (c) "Light Engine" means the UltreX 3(R) Liquid Crystal on Silicon (LCOS) three-panel light engine architecture for Rear Projection Television (RPTV) applications. (d) "Licensed Patents" means the patents, utility models and applications therefor, and including any and all divisionals, continuations, re-examinations, renewals, provisionals, continuations in part, and re-issues, set forth in EXHIBIT A to this Agreement, and also any of the foregoing that are owned or licensable by Licensor and which would be necessary for Licensee to exercise any rights hereunder (including without limitation for Licensee to make and have made Light Engines as herein provided). (e) "Licensed Know-How" means the proprietary know-how and trade secrets owned or licensable by JDSU as set forth in EXHIBIT B to this Agreement and also all such proprietary know-how and trade secrets as necessary or desirable to exercise the rights and licenses granted hereunder (including without limitation for Licensee to make and have made Light Engines as herein provided). (f) "Licensed Technology" means the Licensed Patents and Licensed Know-How, including any updates or improvements thereto made by Licensor. (g) "Royalty Rate" means $[***] for each Licensed Product sold by Licensee. II. As of the Effective Date and continuing for the period defined in SECTION XIV, Licensor grants to Licensee a non-exclusive, non-transferable (except as provided in SECTION XIII), royalty-bearing (as described in SECTION IX), worldwide right and license under the Licensed Technology (i) to make, have made (solely by an authorized assembler of Licensee for incorporation in a Licensor branded television) and use Licensed Products and (ii) to sell, offer for sale and lease world-wide such Licensed Products solely as a subassembly of a Licensor branded television. Notwithstanding the foregoing, Licensee's rights hereunder to make or have Licensed Products shall not extend to the manufacture of any individual part, component or subsystem of a Light Engine, whether such part, component or subsystem is manufactured by Licensor or purchased by Licensor from a third -party supplier, and shall be limited to the assembly of such parts, components and subsystems into a complete Light Engine unit. (a) The right to have Licensed Products made by an authorized assembler of Licensee by set forth above shall only apply where (i) the authorized assembler is party to a written agreement with Licensee with terms at least as restrictive as those set forth herein, particularly with respect to confidentiality and revision control, (ii) the specifications for the Light Engine were created by Licensor or Licensee (and not by such authorized assembler), (iii) the authorized assembler is manufacturing no more than 15% of the Light Engines manufactured by Licensee hereunder and (iv) shall not apply to any products in the form manufactured or marketed by said authorized assembler prior to Licensee furnishing said specifications. Licensee shall be liable to Licensor for any unauthorized disclosure or misuse of Licensor confidential information or the Licensed Technology by its authorized assembler. III. TECHNOLOGY TRANSFER: Licensor agrees to i) transfer the Licensed Know-How in accordance with the Technology Transfer Schedule set forth in EXHIBIT C, and ii) to provide to Licensee access to the Licensed Know-How through the following databases: [***]. Licensor shall maintain the database and incorporate changes as may be mutually agreed upon. IV. CROSS LICENSES; THIRD-PARTY PATENT CLAIM: (a) The license which is granted herein to Licensee may in the future be affected by cross-license agreements between Licensor and other parties. At the Effective Date, Licensor is not party to any cross-license agreement that, to the actual knowledge of Licensor's executive officers and attorneys working within Licensor's legal group ("Licensor's Knowledge"), is necessary for Licensee to exercise its license rights hereunder. (b) In the event that Licensor or Licensee shall receive any claim or assertion that the Licensed Products infringe any third-party patents, the recipient party shall promptly give notice to the other party, and Licensor and Licensee agree to cooperate in good faith to evaluate, resolve and dispute any such third-party claim. In the event Licensor shall enter into any license or other agreement whereby a third-party patent is licensed to Licensor for Light Engine applications, Licensor shall use reasonable commercial efforts to cause such license agreement to be extended to Licensee on the same economic terms as are applicable to Licensor for any Licensed Products to be manufactured by or for Licensee pursuant to this Agreement. V. REPRESENTATIONS AND WARRANTIES; NO IMPLIED LICENSE: (a) Licensor represents to Licensee that: (i) to Licensor's Knowledge, no third party has asserted or made a claim in writing to Licensor that the use, manufacture or sale of Licensor's Light Engine Products infringes any patent or other intellectual property right of such third party; and (ii) Licensor has the right to convey all rights and licenses conveyed hereunder. (b) Nothing in this Agreement shall be construed or interpreted as a grant by implication, inference, estoppel, or otherwise of any license or other right under any patents, or background patents, or patent applications, or software, or know-how, or trade-secrets, other than the express license granted to the Licensed Technology herein. 1 Initialed: ____ /____ [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. VI. DISCLAIMER: (a) Except as otherwise expressly provided herein, nothing contained in this Agreement shall be construed as: (1) a warranty or representation by Licensor as to the scope or validity of any patents, patent applications, invention disclosures, design patents, utility model patents or other rights included in the Licensed Technology; or (2) a warranty or representation that any manufacture, sale, import, use, or other disposition of products produced by Licensee or services provided by Licensee will be free from infringement of patents, design patents, utility patents, or other rights of third parties; or (3) any obligation on Licensor to pay maintenance fees, pay for counsel or otherwise file or prosecute any patent application, maintain or renew any patent rights in any country for issued patents or patent applications, or to file for patent protection in any country for inventions, or to defend any patent or patent application; or (4) a duty or requirement on Licensor to bring, file, or prosecute actions or suits against third parties for the misappropriation of or infringement of the Licensed Technology; or (5) conferring any right to use in advertising, publicity or otherwise, any trademark, trade names, or any contraction, abbreviation, or simulation thereof, of Licensor. VII. SUBSEQUENTLY DEVELOPED TECHNOLOGY: Licensor shall maintain configuration control over Licensed Product. In the event that Licensee desires to make changes to Licensed Product or Licensed Technology, including any changes that would affect the form, fit, function, specification or qualification of the Licensed Product, Licensee shall notify Licensor of the change in writing, prior to implementation of such change. Licensor shall modify the relevant database based upon such changes as are mutually agreed upon. Licensor shall own all right title and interest in and to any inventions, discoveries, or improvements made by Licensee to the Licensed Products or Licensed Technology, which shall be deemed Licensed Technology for purposes of this Agreement. Licensee agrees to provide any necessary documentation requested by Licensor in order to perfect Licensor's rights as set forth herein. VIII. MARKING: Licensor agrees to clearly mark Licensed Product with the applicable Licensor patent numbers in accordance with instruction provided from time to time by Licensor. IX. ROYALTIES: (a) In consideration of the licenses herein granted by Licensor, Licensee agrees to pay Licensor as follows: (1) from the Effective Date continuing through [***] Licensor agrees to waive the payment of royalties on all Licensed Products sold and delivered by Licensee , and (2) during the period commencing on [***] and continuing for the term of this Agreement as specified in Section XIII, Licensee will pay to Licensor royalties on all Licensed Products leased, sold, or otherwise disposed of by Licensee at the Royalty Rate. (b) All royalty payments shall be made to Licensor in U.S. dollars. If Licensee fails to make such payments on or before the required dates, a supplemental royalty equal to one percent (1%) of the amount due shall be paid by Licensee for each month, or part of a month, that the payment is late. (c) Licensed Products shall be deemed to be sold, leased, or otherwise disposed of, when billed by Licensee. Once royalty has been accounted for, for any Licensed Product, no further royalty shall be payable thereon under this License Agreement. X. ACCOUNTING FOR ROYALTIES AND TAXES: (a) All computations relating to determination of the amounts of royalties due and payable pursuant to this Agreement shall be made in accordance with generally accepted accounting principles. Upon the reasonable request of Licensor, Licensee shall permit access to their books and records for the sole purpose of verifying the calculation of royalties due and payable pursuant to this Agreement. Licensor shall seek permission for an audit no more than once each fiscal year and shall bear the costs of the audit. All information concerning the use, lease, sale, or other disposition of Licensed Products, including without limitation, quantities of Licensed Products sold, customers, and other confidential business information of Licensee shall be made available to Licensor to the extent necessary to verify the calculation of royalties. (b) All royalties to be paid under Section VIII, in respect of the licenses granted pursuant to this Agreement, shall be paid on a fiscal quarterly basis, commencing on [***], and continuing on each January 1st, April 1st, July 1st and October 1st respectively, thereafter. (c) All payments of royalties pursuant to Section VIII of this Agreement, shall be made within thirty (30) days of the end of the fiscal quarterly period during which said royalties accrued, or within thirty (30) days of any shorter period as provided for herein, whichever occurs first. Royalties accounted for in any currency other than United States dollars shall be converted to United States dollars by using the prevailing rate of exchange for such currency and United States dollars quoted in the New York Foreign Exchange Market on the last business day of the reporting period in question. (d) On or before the date on which each royalty payment is payable, Licensee shall furnish to Licensor a written statement in the English Language, certified by an authorized representative of Licensee, concerning the computation of royalties due to or payable to Licensor, in respect of the applicable fiscal quarterly period. Each such certified statement payable under this Agreement to be readily determined and, in particular, shall set forth the following: (1) the total quantity of Licensed Product sold or otherwise disposed of for such fiscal quarterly reporting period; and (2) such additional information as Licensor may reasonably prescribe from time to time to enable Licensor to ascertain the computation of royalties. (e) All taxes imposed as a result of the existence of this Agreement or the performance hereunder shall be paid by the party required to do so by applicable law, provided however, that if so required by applicable law, Licensee shall withhold the amount of any national taxes on the payment to be made by Licensee to Licensor pursuant to this Agreement, and shall promptly effect payment thereof to the appropriate tax authorities, and shall transmit to Licensor official tax receipts or other evidence issued by said appropriate tax authorities sufficient to enable Licensor to support a claim for the United States income tax credit in respect of any such taxes so withheld and paid. XI. WAIVER OF REMEDIES: Subject to those warranties set forth in Section IV(a) hereof, Licensee explicitly releases, disclaims and waives all rights and remedies of law and all warranties, obligations, and liabilities of Licensor, express or implied, arising by law or by other means, with respect to any bug, defect, error omission, deficiency, or nonconformity in the Licensed Technology , including remedies which arise 2 Initialed: ____ /____ [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. under any: (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; or (b) IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; or (c) ANY THIRD-PARTY CLAIM OF PATENT, COPYRIGHT OR OTHER INFRINGEMENT; or (d) TORT CLAIMS, WHETHER OR NOT ARISING IN WHOLE OR IN PART FROM FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY. XII. LIMITATION OF LIABILITY: OTHER THAN FOR DAMAGES ARISING FROM A BREACH OF SECTION II(a), SECTION XV(a) ("CONFIDENTIALITY"), OR FOR OBLIGATIONS ARISING UNDER SECTION IV ("REPRESENTATIONS AND WARRANTIES; NO IMPLIED LICENSE"), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. XIII. ASSIGNMENT: Neither this License Agreement nor any of the rights and benefits inuring herein to Licensee shall be assignable to any other person or party without the express prior written consent of Licensor. Any assignment in violation of this Section XII shall be null and void and be of no force and effect. XIV. TERM & TERMINATION: (a) Except as otherwise provided in this Section XIV, the licenses granted pursuant to this Agreement shall remain in force until 30 September 2005. Upon the earlier to occur of: (i) Licensor notifies Licensee in writing that it will no longer offer for sale complete Light Engines (directly or through its contract manufacturer) (the "LE Notice"), or (ii) Licensor is not offering for sale complete Light Engines (directly or through its contract manufacturer) prior to 30 September 2005, and provided that (x) this Agreement has not previously terminated, and (y) that Licensee is not then in material default of this Agreement (such earlier event hereinafter referred to as an "Early Trigger"), Licensee shall have the right, at its option and exercisable by Licensee on written notice to Licensor (1) within fifteen (15) days of receipt of the LE Notice with respect to an Early Trigger pursuant to Section XIV(a)(i) above, or (2) on or prior to 30 September 2005 with respect to an Early Trigger pursuant to Section XIV(a)(ii) above, to (A) extend this Agreement to 30 June 2006, subject to termination pursuant to Sections XIV(b), XIV(c) or XIV(d) below (such extended license hereinafter referred to as, the "Extended License"), and/or (B) extend this Agreement in perpetuity, subject to termination pursuant to Sections XIV(b), XIV(c) or XIV(d) below (such extended license hereinafter referred to as, the "Perpetual License"). (b) In the event that Licensee exercises its rights to the Extended License or the Perpetual License and Licensee is making the Licensed Products directly without a third-party contractor or assembler, the Royalty Rate shall remain as set forth in this Agreement. In the event that Licensee exercises its rights to the Perpetual License and Licensee has the Licensed Products made by Fabrinet or another authorized assembler as set forth in Section II above, this Agreement shall be modified and amended to: (i) delete the terms "to make" in Section II(ii) above, (ii) eliminate the 15% limitation on the amount of Light Engines that Licensee can have manufactured by a third party authorized assembler; and (iii) modify the royalty during such extension period to be an amount equal to the greater of: (x) $50 per unit, or (y) 5% of the Light Engine Revenue derived by Licensee from the sale of each television unit incorporating a Light Engine (where "Light Engine Revenue" shall mean that portion of the total revenue of Licensee from the sale of a television unit equal to that percentage of the total cost of goods sold of such television unit that is attributable to the total completed Light Engine). In the event the Royalty Rate is modified pursuant to Section XIV(b)(ii) above, then every six months following the effective date of the Perpetual License, the parties shall negotiate in good faith a fixed dollar amount for the Royalty Rate that they deem to be equal to such modified Royalty Rate. On or after 30 September 2007 the Perpetual License shall terminate immediately following any calendar month during the extension period for which Licensee shall pay Licensor the applicable royalty on less than 1,000 Light Engine units per month as determined on a rolling twelve month basis. In the event Licensee exercises the option for the Extended License and/or Perpetual License pursuant to this Section XIV(b), such election shall serve as a full release of all claims against Licensor for any acts or omissions by Licensor for periods prior to 1 October 2005. (c) If Licensee fails to make any payment fully or timely as required by this Agreement, or in the event of any other material breach of this Agreement by either party, and if such failure or other material breach is not corrected within thirty (30) days after written notice complaining thereof is given to the defaulting party, then this Agreement may be terminated forthwith in its entirety by written notice to that effect from the complaining party, provided that such termination shall not affect any royalty or other obligation arising prior to such termination. (d) If at any time during the term of this Agreement: (i) either party consolidates with or merges with or into another corporation, company, or other entity, notwithstanding that such party may be the surviving entity of such consolidation or merger; or (ii) Licensee sells or otherwise transfers substantially all of its business or assets relating to Licensed Products; then the other party may terminate this Agreement at any time upon notice to the other party. XV. MISCELLANEOUS PROVISIONS: (a) CONFIDENTIALITY: Each party (the "Disclosing Party") may from time to time disclose to the other party (the "Receiving Party") certain non-public information regarding the business of the Disclosing Party (collectively, "Confidential Information"). The Disclosing Party shall mark all Confidential Information as "Confidential", "Proprietary" or the like. The Receiving Party agrees not to use the Confidential Information except for purposes of exercising its rights or fulfilling its obligations under his Agreement, and agrees not to disclose such Confidential Information to any third party (other than by Licensee under obligation of confidence). Licensee agrees that all Licensed Know-How and the data contained on the databases set forth in Section III are deemed Confidential Information of Licensor, irrespective of the marking of such information. Confidential Information of Licensor. The provisions of this SECTION XV(a) shall not apply to any disclosure of information which: (1) Is made with the prior written consent of the Disclosing Party; or (2) Is made to any governmental body or any other statutory authority or regulatory authority or court having jurisdiction to call therefor; or (3) Is made as otherwise may be required by law; or (4) is disclosed to independent legal counsel, accountants or consultants where there is a business need to know. Prior notification of any disclosure pursuant to items (ii) and (iii) above shall be provided by the Receiving Party to the Disclosing Part Licensor. 3 Initialed: ____ /____ [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. (b) CHOICE OF LAW: This Agreement shall be construed and interpreted in accordance with the laws of the State of New York without regard to principles of conflicts of laws. (c) WAIVER: The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse similar subsequent failure to perform any such term or condition by the other party. (d) SUCCESSOR'S AND ASSIGNS: This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns subject to Section XII above. (e) COUNTERPARTS: This Agreement may be executed in one or more counterparts for the convenience of the parties hereto, all of which together shall constitute one and the same instrument. (f) THIRD PARTIES: Except as specifically set forth or referred to in this Agreement, nothing herein expressly or implied is intended or shall be construed to confer upon or give to any other person other than Licensee and Licensor and their successors or assigns, any rights or remedies under or by reason of this Agreement. (g) INVALID PROVISIONS: Should any clause, sentence, paragraph, section, or article of this Agreement be judicially declared invalid, unenforceable, or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, and the parties hereto agree that the part or parts of this Agreement that are so held to be invalid, unenforceable, or void shall be deemed to have been stricken from this Agreement, and the remainder of this Agreement shall have the same force and full effect as if such part or parts had never been included herein. (h) SURVIVAL: The following provisions shall survive the expiration or termination of this Agreement: SECTION I ("DEFINITIONS"), SECTION IV ("CROSS LICENSES; THIRD-PARTY CLAIM"), SECTION IV ("REPRESENTATIONS AND WARRANTIES; NO IMPLIED LICENSE"), SECTION VI ("DISCLAIMER"), SECTION XI ("WAIVER OF REMEDIES"), SECTION XI ("LIMITATION OF LIABILITY"), SECTION XIV ("TERM AND TERMINATION; CROSS DEFAULT"), SECTION XV ("MISCELLANEOUS PROVISIONS"), SECTION XVI ("ENTIRE AGREEMENT") and SECTION XVII ("NOTICE"). XVI. ENTIRE AGREEMENT: This Agreement sets forth the entire understanding between the parties as to the subject matter hereof and merges all prior discussions between them. XVII. NOTICE: Any notice, request, instruction, or other communications or other document to be given hereunder by any party hereto to any other party hereto shall be in writing and delivered personally, telecopied, or sent by recognized overnight delivery service, and shall be deemed given when so delivered personally, telecopied (with appropriate confirmation of receipt), or received, as follows: If to Licensor: JDS Uniphase Corporation 1768 Automation Parkway San Jose, CA 95131 Attn: General Counsel Fax: 408-546-4350 Phone: 408-546-5000 If to Licensee: Brillian Corporation 1600 N. Desert Drive Tempe, AZ 85281 Attn: IN WITNESS WHEREOF, this Agreement is accepted by the undersigned, which are respectively duly authorized representatives of Licensor and Licensee. JDS Uniphase Corporation Brillian Corporation By:__/s/ Christopher S. Dewees_________ By:__/s/ Wayne A. Pratt___________ Print Name: Christopher S. Dewees Print Name: Wayne A. Pratt Title: Senior Vice President Title: Vice President and CFO Date: December 10, 2004 Date: December 10, 2004 4 Initialed: ____ /____ [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. EXHIBIT A LICENSED PATENTS [***] [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. EXHIBIT B LICENSED KNOW-HOW The Licensed Know-How includes, but is not limited to, technical data, drawings, work instructions, bills of material, specifications, design information, test requirements, process information, alignment techniques, and other information available on the following JDSU proprietary databases related to the Light Engine to which Licensee will be granted access: [***] Licensee shall be granted read only access and agrees that any changes required to the database will be handled in accordance with the change control process outlined in the Supply Agreement executed in conjunction with this Agreement. FILE CODES: [***] 2 of 4 [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. EXHIBIT C [*** 5 pages omitted] FILE CODES: [***] 3 of 4 EX-10.13 4 p71218exv10w13.txt EX-10.13 EXHIBIT 10.13 [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION [JDS UNIPHASE LOGO] 10 December 2004 Brillian Corporation 1600 North Desert Drive Tempe, AZ 85281 Attention: Wayne A. Pratt Vice President, Chief Financial Officer Subject: LETTER AGREEMENT Dear Mr. Pratt: This Letter Agreement ("AGREEMENT") by and between JDS Uniphase Corporation ("JDSU") and Brillian Corporation ("Brillian) sets out the terms for the sale by JDSU and purchase by Brillian of (i) the kernel material and projection lenses as listed on Page 1 of Exhibit A (shipped to Brillian but not invoiced by JDSU prior to the effective date of this Agreement), (ii) a quantity of one hundred fifty (150) kernel material kits as listed on Page 2 of Exhibit A, and (iii) a quantity of six hundred fifty (650) Light Engine Development Kits as listed on Pages 3,4, and 5 of Exhibit A (collectively "Products") as further defined below. JDSU and Brillian do hereby agree as follows: 1. EXHIBITS. The description of the Products subject to this Agreement is provided in Exhibit A attached hereto. The purchase of Products shall be governed by the terms and conditions attached to this Agreement as Exhibit B. This Agreement shall be governed by and construed in accordance with Section 9 of Exhibit B. 2. PURCHASE ORDER. Brillian shall issue a purchase order in the total amount of $1,368,814.18 which is hereby deemed accepted by JDSU in accordance with the terms of this Agreement covering (i) the kernel material and projection lenses as listed on Page 1 of Exhibit A (shipped to Brillian but not invoiced by JDSU prior to the effective date of this Agreement) at a total price of $140,266.18, (ii) a quantity of one hundred fifty (150) kernel material kits as listed on Page 2 of Exhibit A at a price of $390.32 per kit for a total price of $58,548, and iii) six hundred fifty (650) Light Engine Development Kits at a price of $1,800 per kit (each kit consisting of the items in the Bill of Materials and Commodity Materials listed on Pages 3, 4, and 5 of Exhibit A) for a total price of $1,170,000. The Product shall be delivered to Brillian within sixty (60) days from the issue date of the purchase order in accordance with a mutually acceptable shipping schedule. This Agreement shall only cover the purchase order issued by Brillian for the limited quantities described herein. 3. ENTIRE AGREEMENT. This Agreement, including Exhibits A and B, expresses the entire understanding and agreement for both JDSU and Brillian with respect to the subject matter Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 1 covered in this Agreement and supersedes any and all previous agreements with reference to such subject matter (except any non-disclosure agreement between the parties). No addition, deletion or change to this Agreement shall be valid, unless in writing and signed by both Brillian and JDSU. 4. EXECUTION. This Agreement may be signed by manual or facsimile signature in several counterparts, each of which when executed shall be deemed to be an original; such counterparts together shall constitute one and the same document. Please indicate your concurrence with this Agreement by signing in the space indicated below. YOURS VERY TRULY, AGREED AND ACCEPTED: JDS UNIPHASE CORPORATION BRILLIAN CORPORATION /s/ Christopher S. Dewees /s/ Wayne A. Pratt NAME: Christopher S. Dewees NAME: Wayne A. Pratt TITLE: Senior Vice President TITLE: Vice President and CFO DATE: December 10, 2004 DATE: December 10, 2004 Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 2 [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION EXHIBIT A SEE SEPARATELY ATTACHED SPREADSHEETS [*** 5 pages omitted] Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 3 EXHIBIT B JDS UNIPHASE TERMS AND CONDITIONS OF SALE These Terms and Conditions of Sale and Software license (collectively "Terms") are Exhibit B to the Letter Agreement ("Agreement") between JDS Uniphase Corporation, ("JDSU") and Brillian Corporation ("CUSTOMER") dated ________ . 1. PRODUCTS 1.1 "Products" shall mean the Products identified in the Agreement. 2. ORDERS: Customer has issued and JDSU has accepted a written order from Customer (the "PURCHASE ORDER"). 3. PRICES: All prices are (a) FCA JDSU factory [Incoterms, 2000] (shipping costs and risk of loss from the FCA point of shipment are the responsibility of Customer) and (b) exclusive of Taxes (as defined herein) and all handling or other charges including without limitation insurance, brokerage fees, transportation or special packaging ("CHARGES") and (c) in U.S. currency unless otherwise specified by JDSU. All sales are final. Title to Products shall pass from JDSU to Customer upon delivery to the shipping carrier at the FCA point. Any tax or other charge which JDSU is liable to collect on behalf of any governmental authority ("TAXES") as a result of the sale, use or delivery of Products, including without limitation, duties, value added and withholding taxes (but not including taxes on JDSU's income), is the responsibility of the Customer, and if paid by JDSU shall be charged to Customer as a separate item on the invoice, to the extent possible. 4. TERMS OF PAYMENT: Net one hundred twenty (120) days from the date of shipment. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, JDSU may, at its discretion, withhold shipment (including partial shipments) of any order and may, at its option, require Customer to pre-pay for further performance or shipments. All payments not received when due shall be subject to an additional charge of one and one half percent (1.5%) per month (annual rate 19.56%) of the unpaid amount or the maximum rate permitted by law, whichever is less, until the date of payment. Customer grants JDSU a security interest in Products (excluding services) purchased under this Agreement to secure payment for those Products purchased. If requested by JDSU, Customer agrees to execute financing statements to perfect such security interest. There is no set-off right for the Customer. 5. PERFORMANCE AND SHIPPING: Performance and shipping dates specified or communicated by JDSU to the Customer are approximate dates (however JDSU shall make commercially reasonable efforts to meet such dates) and the failure to perform or ship on such dates, despite such efforts, shall not be considered a breach by JDSU. JDSU shall be permitted to make partial shipments of Products. Delivery shall be deemed made upon transfer of possession to the carrier at the FCA point. All claims for shortage of Products ordered or for incorrect charges must be presented to JDSU within ten (10) days after receipt by Customer of the particular shipment of Products. Customer shall be responsible for all Charges. Unless given written instruction, JDSU shall select the carrier. JDSU shall not be liable for damages or penalty for delay in delivery or for failure to give notice of any delay, and the carrier shall not be deemed to be an agent of JDSU. Notwithstanding any provision of this Agreement, each Product shall be deemed accepted by Customer upon delivery. Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 4 6. CANCELLATION: The Customer may not cancel, terminate, suspend performance of, or issue a hold on, the Purchase Order, in whole or in part, without the prior written consent of JDSU, which consent, if given, shall be upon terms that will compensate JDSU for any loss or damage therefrom, including but not limited to any work in process or services performed, the price of Products shipped to, manufactured for, or held separately for, the Customer, and loss of profits, incurred costs, and a reasonable allocation of general and administrative expenses relating to the Products. 7. LIMITED PRODUCT WARRANTY: Notwithstanding any provision to the contrary (but subject to the operation of any law to the extent it cannot be excluded), JDSU's sole and exclusive obligations to the Customer for any Product (other than Software, as defined and warranted below) made by JDSU and sold hereunder are to repair returned Product or provide a replacement Product, at JDSU's sole option, for any Product which has been returned to JDSU under the RMA procedure (as defined below) and which in the reasonable opinion of JDSU is determined to be defective in workmanship, material or not in compliance with the JDSU specification applicable to the Product and has in fact failed under normal use on or before, one (1) year from the date of original shipment of the Product. All Products, which are prototypes, experimental, alpha, beta, field trial or unqualified Products, are not warranted. All third parties' Products or components (including software) sold by JDSU carry only the original manufacturer's warranty to the extent such warranty is transferable to Customer. JDSU will coordinate the return of Product or components supplied by third parties in accordance with the applicable manufacturer's warranty provided such Product or components are returned to JDSU in accordance with the RMA procedure set forth in Section 8. Any Product repaired or replaced under warranty is only warranted for the period of time remaining in the original warranty for the Product. JDSU reserves the right, at its sole option, to issue a credit note or cash refund for any defective Product as an alternative to repair or replacement. The warranty provided herein shall extend to any Product which has proved defective and has failed through normal use, but excludes and does not cover any Product or parts thereof which has been accidentally damaged, disassembled, modified, misused, repaired or reworked (by any party other than JDSU or its authorized agents), improperly stored or handled, used in conjunction with another product that is electronically or mechanically incompatible or of an inferior quality, or used in applications which exceed the Product specifications or ratings, neglected, improperly installed or otherwise abused or is used in hazardous activities. Customer must claim under the warranty in writing not later than thirty (30) days after the claimed defect is discovered. The Customer must make all claims under these warranties and no claim will be accepted from any third party. The warranties set forth herein are non-transferable. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT OR OTHER RELATED DOCUMENTATION (INCLUDING WITHOUT LIMITATION ANY SPECIFICATIONS) TO THE CONTRARY, THE PROVISIONS OF WARRANTIES SET FORTH HEREIN CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY DEFECTIVE OR NONCONFORMING PRODUCTS OR SERVICES. 8. RETURN MATERIAL AUTHORIZATION PROCEDURES: JDSU will only accept Products returned under the JDSU Return Material Authorization process ("RMA"). Customer shall obtain a RMA number from JDSU prior to returning any Product and return the Product prepaid and insured to JDSU to the FCA point. Where any Product is returned without an itemized statement of claimed defects, JDSU will not evaluate the Product but will return it to the Customer at the Customer's expense. Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 5 9. SOFTWARE LICENSE AND WARRANTY: For software developed by JDSU and contained in any Product and all related documentation (collectively "Software"), JDSU does not transfer ownership (which shall remain solely with JDSU) but only grants the Customer a perpetual, non-exclusive license to use the Software only in conjunction with a single unit of JDSU Product.. Such license is transferable only with the transfer of ownership of the Product in which it is used. Except for making a backup or archival copy or as permitted by law and provided that the said copies contains all of the JDSU proprietary notices contained in the original Software, Customer shall not (a) modify, translate, reproduce, copy, reverse engineer, decompile or disassemble all or any portion of the Software, (b) distribute, market, disclose, rent, lease or create derivative works, or sublicense the use of, the Software to any third party, or (c) permit or authorize anyone within Customer's reasonable control to do any acts in (a) or (b). JDSU warrants that the Software under normal use and service as originally delivered to Customer will function substantially in accordance with the functional description set out in the Product specification and/or user manual supplied with the Software for a period of ninety (90) days from the date of shipment. JDSU's sole liability and Customer's sole remedy for a breach of this Software warranty shall be JDSU's commercially reasonable efforts to rectify the non-conformity or, if after repeated efforts JDSU is unable to rectify the non-conformity, JDSU shall accept return of the Product containing the non-conforming Software and shall issue a credit to Customer for all amounts paid by Customer for the corresponding Product. This warranty is void if failure of the Software has resulted from accident, misuse, abuse, misapplication or modification. JDSU's Software is provided to non-Department of Defense (DOD) agencies of the United States Government with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to the restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the Government's rights in Software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202. If Customer breaches any provision of this Agreement with respect to any Software, then (a) JDSU may terminate Customer's license for the Software and related documentation by delivering to Customer notice thereof, and (b) upon receipt of the notice, Customer shall destroy or deliver to JDSU all copies of the Software. 10. LIMITATION OF LIABILITY: EXCEPT FOR THE WARRANTIES STATED HEREIN FOR THE CUSTOMER, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESS, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO THE CUSTOMER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE PRODUCTS WILL BE FREE FROM INFRINGEMENT OR VIOLATION OF ANY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OF THIRD PARTIES; OR (C) THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF JDSU IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 6 DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FOR PURPOSES OF THIS PROVISION, EACH PARTY INCLUDES SUCH PARTY'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS. IN NO EVENT SHALL THE TOTAL COLLECTIVE CUMULATIVE LIABILITY OF EITHER PARTY, ITS EMPLOYEES, OFFICERS, AGENTS AND DIRECTORS EXCEED THE AMOUNT PAID TO JDSU FOR PRODUCTS FROM WHICH SUCH LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM. 11. EXPORT RESTRICTIONS: Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Customer will indemnify and hold JDSU harmless for any violation or alleged violation by Customer of such laws, rules, policies or procedures. Customer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Products or any technical data (including processes and services) received from JDSU, without first obtaining any license required by the applicable government, including without limitation, the United States Government and/or any other applicable competent authority. Customer also certifies that none of the products or technical data supplied by JDSU will be sold or otherwise transferred to, or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology. 12. RIGHTS IN INTELLECTUAL PROPERTY AND TOOLING: All right, title, and interest in and to the designs, models, patterns, specifications, copyrights, patents, trade secrets, trade-marks and other intellectual property in the Products and related materials shall remain vested in JDSU or its third party suppliers. Customer shall not copy, make extracts from, translate or otherwise modify any of the Products or related documentation provided by JDSU. All right, title and interest in and to any inventions, discoveries, improvements, methods, ideas, computer and other apparatus programs and related documentation, other works of authorship fixed in any tangible medium of expression, mask works, or other forms of intellectual property, whether or not subject to statutory protection, which are made, created, developed, written, conceived or first reduced to practice by JDSU solely, jointly or on its behalf, in the course of, arising out of, or as a result of work performed under an order, and any related tooling, set-up, fitting-up and preparation charges whether or not invoiced, shall belong to and be the sole and exclusive property of JDSU. Customer agrees not to reverse engineer all or any portion of any Product nor allow or assist others to do so. Customer acknowledges the goodwill associated with JDSU's trade-marks, and shall not obscure, remove or alter of any trademarks, patent numbers, labels, serial numbers affixed to any Product, related documentation or packaging, without the express prior written consent of JDSU. 13 GENERAL TERMS: 13.1 The validity, interpretation and performance of this Agreement shall be governed by and construed under the applicable laws of the State of New York and the United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 7 laws. The parties specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. 13.2 Neither party shall be liable for delay or failure in performance whatsoever due to acts of God, shortage of supplies, transportation difficulties, labor disputes, riots war, fire, explosion, epidemics, or other occurrences beyond such party's reasonable control or due to unforeseen circumstances. 13.3 Waiver by either party of any provision herein must be in writing and shall not be deemed to be a waiver of such provision or other provision in the future. 13.4 Each party shall hold confidential and shall not use, disclose or permit others to use any confidential information identified as such in writing or orally by the other partyJDSU or information which such party knows or ought to reasonably know is confidential, proprietary or trade secret information of the other party, including, without limitation, trade secrets embodied in Products. 13.5 Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Customer (by operation of law or otherwise) without the prior written consent of JDSU, which consent shall not be unreasonably withheld. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties. 13.6 In the event that any of the terms of this Agreement, apart from payment, become or are declared to be illegal by any court of competent jurisdiction, such terms shall be null and void and shall be deemed deleted from this Agreement, but only to the extent that such term is illegal, it being the intent and agreement of the parties that the Agreement shall be deemed amended by modifying such term to the extent necessary to make it legal while preserving its intent or, if that is not possible, by substituting therefore another term that is legal and achieves the same objective. All remaining terms of this Agreement shall remain in full force and effect. 13.7 Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. JDSU neither assumes nor authorizes any third party, person or entity to assume or accept any liability or obligation, or to make any commitment for JDSU with regard to JDSU services or the Products. 13.9 This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, apart from existing non-disclosure agreements, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. This Agreement may only be modified by a written document executed by authorized representatives of JDSU and Customer. Exhibit B Letter Agreement Final JDSU CONFIDENTIAL 8 EX-10.14 5 p71218exv10w14.txt EX-10.14 Exhibit 10.14 [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. [JDS UNIPHASE LOGO] EQUIPMENT LOAN AGREEMENT THIS EQUIPMENT LOAN AGREEMENT ("AGREEMENT") is entered into as of December 10, 2004 ("EFFECTIVE DATE") between JDS Uniphase Corporation, a company incorporated and registered under the laws of the State of Delaware, with offices at 1768 Automation Parkway, San Jose, California 95131 ("JDSU"), and Brillian Corporation, a company incorporated and registered under the laws of the State of Delaware, with offices ("PREMISES") located at 1600 N. Desert Drive, Tempe, Arizona 85281 ("CONSIGNEE") (each, a "PARTY" and collectively, the "PARTIES"). In consideration of the mutual promises and covenants herein contained, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. EQUIPMENT PROVIDED. Subject to the terms and conditions of this Agreement, JDSU will supply and loan the Equipment set out in Schedule A hereto ("EQUIPMENT") to Consignee and Consignee agrees to accept the supply and loan of the Equipment. 2. TERM. This Agreement shall commence on the Effective Date and end on 30 September 2005 ("TERM"), unless terminated earlier in accordance with any provision of this Agreement. In the event that JDSU is not offering for sale complete UltreX3(R) Liquid Crystal on Silicon (LCOS) three panel architecture light engines ("Light Engines") prior to the expiration of this Agreement, the parties agree to negotiate, in good faith either (i) an appropriate extension to the Term of this Agreement or (ii) pricing and terms and conditions for the purchase of the Equipment by Consignee. 3. PERMITTED USE. JDSU grants Consignee a limited license to use the Equipment only for the manufacture of Light Engines manufactured in conjunction with the license and supply agreements executed contemporaneously with this Agreement for use in Consignee's televisions only. Equipment may not be used for manufacturing Light Engines to be sold on a stand alone basis or in televisions other than those sold by Consignee. Consignee acknowledges and agrees that Consignee is only a bailee of the Equipment on the terms and conditions set out in this Agreement, and that Consignee accepts full responsibility for the Equipment, including its use in accordance with any operation instructions provided or government regulations. Consignee will not pledge or otherwise encumber the Equipment. In the event the premises in which the Equipment is installed are encumbered in any way (e.g. a financial institution has a security interest in the premises), Consignee shall provide notice to any party having such an interest that (a) the Equipment is installed within such premises; (b) the Equipment is the property of JDSU; (c) any encumberance over the premises itself does not extend to the Equipment; and d) JDSU retains its rights of recovery and repossession of the Confidential Page 1 of 7 Equipment Loan Final Equipment. Consignee shall immediately report to JDSU: (i) any seizure or attachment of the Equipment by Consignee's creditors; (ii) any petition in bankruptcy, insolvency, receivership or similar proceedings filed by, or against, Consignee; or (iii) any application for a suspension of its debt obligations or arrangement, composition or similar agreement for the benefit of Consignee's creditors. 4. NO TRANSFER OF OWNERSHIP. Nothing in this Agreement shall be deemed to convey any title or ownership interest in the Equipment, and Consignee will not remove any sticker from the Equipment giving notice of JDSU's ownership of the Equipment. Ownership and all right, title and interest in and to any patents, copyrights, trade secrets, trademarks, trade names, service marks, information concerning JDSU or a subsidiary or affiliate of JDSU and their businesses which is in Consignee's knowledge, possession or control or any other proprietary rights relating to any Equipment ("PROPRIETARY INFORMATION") are and shall remain vested solely in JDSU. 5. NON FIXTURE. If the Equipment or any part thereof is or becomes attached to the Premises, the Equipment shall be deemed not to be a fixture and may be removed by JDSU at any time in accordance with the provisions of this Agreement and, upon default of this Agreement, JDSU shall be entitled to enter the Premises at any time for such purpose and shall not be liable to Consignee or any other person in respect of loss or damage arising in respect of such entry or removal; provided, however, that JDSU shall use reasonable care in conducting such entry or removal. The Consignee agrees to waive all rights for action of trespass under applicable law. 6. PROHIBITED USES. Consignee shall use the Equipment only for the permitted use as described in Section 3. Any use or activity by or on behalf of Consignee associated with Equipment that is not expressly permitted by this Agreement is prohibited. Without limiting the generality of the immediately preceding sentence, Consignee agrees not, and not to allow others, to (i) modify, alter, disassemble, cut, destroy, cleave, crush or reverse-engineer Equipment; (ii) sell, rent, loan, donate, give any guarantee or security interest in, transfer possession or purport to transfer title in any way of, Equipment to any third party; (iii) allow any employee, agent or contractor not adequately trained to work with Equipment or not involved in the testing or demonstration of the Equipment to have access to the Equipment; or (iv) use or transport the Equipment outside of the Premises without written permission from JDSU. Consignee may request making modifications or changes to the Equipment, at its own cost, subject to the prior written approval of JDSU. All requests for modifications or changes shall include a detailed written description of such modifications or changes. 7. COSTS. Consignee will bear all costs and expenses associated with Consignee calibration of the Equipment. Consignee is responsible for the ongoing maintenance of the Equipment at its own cost. Consignee shall bear all risk of loss regarding, and be liable for any damage to, the Equipment (reasonable wear and tear excepted). Applicable shipping and insurance costs shall be borne by Consignee. Consignee must, at its cost, insure the Equipment against loss or damage for its replacement value, and consistent with best practices, maintain comprehensive general liability insurance Confidential Page 2 of 7 Equipment Loan Final against claims for personal injury or death arising out of the operations and use of the Equipment by the Consignee, its officers, employees, agents and contractors during the term of this Agreement, and will deliver to JDSU, upon request, proof of such insurance policies. Consignee shall pay to JDSU the new replacement cost of the Equipment that is lost, stolen, destroyed or damaged beyond repair. JDSU is entitled to receive all moneys which may become payable by the insurer under any such policy of insurance or by any other person in respect of damage to or loss of the Equipment. Consignee covenants that all moneys received from the insurer or from any other person in respect of any matter above shall if received by Consignee be paid forthwith by Consignee to JDSU and until so paid shall be held by Consignee on trust for JDSU. Consignee shall pay to JDSU a reasonable calibration and refurbishing fee in the event that ownership labels, calibration seals or anti-tamper notices affixed to the Equipment are removed or defaced. Any item, article, accessory, document or thing supplied in conjunction with the Equipment (including operation manuals) not returned to JDSU upon termination or expiration of this Agreement shall be paid for by Consignee with a fee determined by JDSU being charged to Consignee. FCA point shall be FCA JDSU facility and risk of loss shall transfer at the FCA point (for delivery and return). 8. NO WARRANTY. ALL EQUIPMENT IS PROVIDED TO CONSIGNEE "AS IS," AND JDSU DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, RIGHT, TITLE OR INTEREST, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. CONSIGNEE BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF EQUIPMENT. WITHOUT LIMITATION, CONSIGNEE ASSUMES ALL RISKS AND LIABILITIES FOR THE EQUIPMENT, AND FOR THE USE, OPERATION OR STORAGE THEREOF, AND FOR INJURIES OR DEATHS OF PERSONS AND DAMAGE TO PROPERTY, HOWSOEVER ARISING, FROM OR INCIDENT TO SUCH USE, OPERATION OR STORAGE, WHETHER SUCH INJURY OR DEATH BE OF AGENTS OR EMPLOYEES OF CONSIGNEE OR OF THIRD PARTIES, AND SUCH DAMAGE BE TO PROPERTY OF CONSIGNEE OR OF OTHERS. 9. LIMITATION OF LIABILITY. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JDSU, ITS OFFICERS AND DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS AND THEIR REPRESENTATIVES BE LIABLE TO CONSIGNEE OR ANY THIRD PARTY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, DAMAGE TO PROPERTY, LOSS OF PRODUCTION OR PROFIT, ARISING FROM ANY CAUSE WHATSOEVER INCLUDING, WITHOUT LIMITATION, FROM ANY PERSONAL INJURY OR DEATH, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE Confidential Page 3 of 7 Equipment Loan Final POSSIBILITY OF SUCH COSTS OR DAMAGES. THIS SECTION AND THE LIMITATIONS SET FORTH HEREIN, SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. 10. INDEMNITY. Consignee shall indemnify and hold JDSU and its officers, directors, employees, contractors, agents and representatives, harmless from and against any and all claims, suits, actions, proceedings, losses, damages, penalties, liability, costs (including reasonable attorneys' fees), or any other expenses of whatever nature, including, without limitation, related to damage to property, personal injury and/or death arising out of any act, default, misrepresentation or any omission on the part of Consignee (including negligence), its agents, employees or Consignee representatives, or any third party. Consignee agrees to provide proper training, disclose hazards, and issue safety notices, to all employees, agents and subcontractors having access to Equipment. Without limiting the foregoing, Consignee shall indemnify, save and hold JDSU and its officers, directors, employees, contractors, agents and representatives harmless from and against all claims, suits, actions, proceedings, losses, damages, penalties, liability, costs (including reasonable attorneys' fees), or any other expenses of whatever nature, howsoever arising or incurred because of or incidental to the Equipment or the use, operation or storage or alleged use, operation or storage thereof. 11. CONFIDENTIALITY. Consignee must keep confidential any information about the existence and terms of this Agreement, information obtained under or pursuant to this Agreement, information concerning or in any way connected with JDSU, the business relationship between the Parties (including but not limited to business and technical discussions and other exchanges of information relating to the testing and evaluation of Equipment by Consignee) and must not disclose any such information to any person except any director, officer, employee, adviser or associated entity of Consignee that has a clear need to use that information or pursuant to any applicable law or order or rule of any court, regulatory body, governmental agency or stock exchange without the prior written consent of JDSU, which consent shall not be unreasonably withheld. 12. EXPORT COMPLIANCE. Consignee represents and warrants that Consignee shall, at all times, comply with all applicable laws, governmental orders and regulations and obtain all licenses, permits and approvals required by any government regarding the use or export/import of the Equipment. Consignee shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Equipment or any technical data (including processes and services) received from JDSU, without first obtaining i) the written permission of JDSU and ii) any license required by the applicable government, including without limitation, the United States Government and/or any other applicable competent authority. Consignee also certifies that none of the Equipment or technical data delivered to Consignee by JDSU under this Agreement will be delivered to or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology. Confidential Page 4 of 7 Equipment Loan Final 13. NOTICES. Any notice or consent required to be sent pursuant to this Agreement shall be in writing and shall be deemed to be validly given by the delivery to its recipient, or where a facsimile number is provided, by facsimile transmission, with an original to follow by overnight courier. Any written notice is deemed to have been received, if sent by personal delivery, at the time of its delivery, or if transmitted by facsimile transmission followed by overnight courier on the first (1st) business day following its sending. In the case of a notice to JDSU, a copy must also be sent to JDS Uniphase Corporation of 1768 Automation Parkway San Jose, California 95131 U.S.A, facsimile number +408 546 4350, Attention: General Counsel. 14. TERMINATION. JDSU may terminate this Agreement at any time prior to the end of the Term by providing six (6) months prior written notice to Consignee, which notice shall specify a date on which such earlier termination is to be effective. On the date specified for termination or on expiration of this Agreement, Consignee agrees to: (a) immediately cease using the Equipment if it had not already done so; (b) immediately return to JDSU all Equipment in original condition, minus normal wear and tear, and all written materials and technical data describing, relating to, showing or derived from the Equipment or its use, failing such return JDSU may repossess the Equipment and charge Consignee for all of its costs and expenses incurred in doing so. Consignee consents to JDSU, its servants and agents entering Consignee's premises where the Equipment is located, using such force as is necessary to repossess the Equipment. JDSU will not be liable for any damage to property caused by any person in collecting the Equipment. The Consignee agrees to waive all rights for action of trespass under applicable law. In the event that Consignee does not return the Equipment within the time periods described herein, in addition to any repossession rights JDSU may or may not exercise, JDSU may, at its option, charge Consignee a late fee equal to ten percent (10%) of the list price for the Equipment for each thirty (30) day period Consignee is late in returning Equipment. All other obligations which by their nature would survive termination of this Agreement shall survive termination. 15. GENERAl. This Agreement shall enure to and bind the Parties and their respective legal representatives, successors, assigns, subsidiaries and any party claiming by, through or under either Party. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, apart from existing non-disclosure agreements and the license and supply agreements executed contemporaneously with this Agreement, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. No amendment of any provision of this Agreement shall be valid and binding unless the same shall be in writing and signed by the Parties. Consignee shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of JDSU, acting in its sole discretion. Waiver by JDSU of any provision herein must be in writing and shall not be deemed to be a waiver of such provision in the future or of any other provision. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. In the event that any of the terms of this Agreement become or are declared to be illegal by any court of competent jurisdiction, such terms shall be null and void and shall be deemed Confidential Page 5 of 7 Equipment Loan Final deleted from this Agreement, but only to the extent that such term is illegal, it being the intent and agreement of the parties that the Agreement shall be deemed amended by modifying such term to the extent necessary to make it legal while preserving its intent or, if that is not possible, by substituting therefor another term that is legal and achieves the same objective. All remaining terms of this Agreement shall remain in full force and effect. This Agreement may be signed by manual or facsimile signature in several counterparts of like form, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. 16. GOVERNING LAW. This Agreement shall be construed and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law. IN WITNESS WHEREOF, the Parties have executed this Agreement. Executed as a Agreement. JDS UNIPHASE CORPORATION BRILLIAN CORPORATION /s/ Christopher S. Dewees /s/ Wayne A. Pratt - ----------------------------------- --------------------------------- Name: Christopher S. Dewees Name: Wayne A. Pratt Senior Vice President Vice President and CFO Date: December 10, 2004 Date: December 10, 2004 Confidential Page 6 of 7 Equipment Loan Final [***] = CONFIDENTIAL PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. SCHEDULE A EQUIPMENT [* * *] Additional equipment, to be provided by Brillian shall be set forth in the License Agreement as part of the technology transfer. Confidential Page 7 of 7 Equipment Loan Final -----END PRIVACY-ENHANCED MESSAGE-----