-----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, I4eStL7zKyOFJts+V9EVHGbCvHfwbrAH/I7Wevrf4rV/XbbMnj+qtrLwZhaqj4eR T7xp5Q30DJ2NMSQQqqAH7g== 0001047469-98-007703.txt : 19980227 0001047469-98-007703.hdr.sgml : 19980227 ACCESSION NUMBER: 0001047469-98-007703 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980224 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980226 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DSP COMMUNICATIONS INC CENTRAL INDEX KEY: 0000934545 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 770389180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-13623 FILM NUMBER: 98549724 BUSINESS ADDRESS: STREET 1: 20300 STEVENS CREEK BLVD STREET 2: 4TH FLOOR CITY: CUPERTINO STATE: CA ZIP: 95014 BUSINESS PHONE: 4087772700 MAIL ADDRESS: STREET 1: 1999 HARRISON STREET STREET 2: SUITE 1300 CITY: OAKLAND STATE: CA ZIP: 94612 8-K 1 FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) FEBRUARY 24, 1998 ------------------ DSP COMMUNICATIONS, INC. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) DELAWARE - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 0-25622 77-0389180 - -------------------------------------------------------------------------------- (Commission File Number) (IRS Employer Identification No.) 20300 Stevens Creek Blvd., Cupertino, California 95014 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (408) 777-2700 - -------------------------------------------------------------------------------- (Registrant's telephone number, Including Area Code) - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) ITEM 5. OTHER EVENTS This Current Report on Form 8-K is being filed solely to re-file the Non-Exclusive Distribution Agreement dated as of January 1, 1994 between DSP Telecommunications Ltd. and Tomen Electronics Corp. (the "Distribution Agreement"), and the Development and License Agreement dated May 1, 1993 between Texas Instruments Incorporated and DSP Telecom, Inc. (the "License Agreement"), which Agreements were originally filed, in redacted form, as Exhibits 10.8 and 10.29, respectively, to the Company's Amendment No. 1 to Registration Statement on Form S-1 (File No. 33-87506), filed by the Company on January 18, 1995. Certain portions of (i) Section 11(c) of the Distribution Agreement and (ii) Attachment I to the License Agreement, are no longer deemed by the Company to require confidential treatment, and the Company is therefore re-filing the Agreements with such portions unredacted. The Company has requested an extension of confidential treatment for other portions of the Agreements. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. EXHIBIT NUMBER EXHIBIT TITLE - ------- ------------- 10.1* Non-Exclusive Distribution Agreement dated as of January 1, 1994, between DSP Telecommunications Ltd. and Tomen Electronics Corp. 10.2* Development and License Agreement dated May 1, 1993 between Texas Instruments Incorporated and DSP Telecom, Inc. - ------------------- * Confidential treatment has been applied for or granted for portions of these agreements. The portions redacted have been filed separately with the Securities and Exchange Commission. 2 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DSP COMMUNICATIONS, INC. (Registrant) Date: February 24, 1998 By: /s/ Gerald Dogon ---------------------------------- Gerald Dogon Executive Vice President and Chief Financial Officer 3 DSP COMMUNICATIONS, INC. EXHIBIT INDEX EXHIBIT PAGE NUMBER EXHIBIT TITLE NUMBER - ------ ------------- ------ 10.1* Non-Exclusive Distribution Agreement dated as 5 of January 1, 1994, between DSP Telecommunications Ltd. and Tomen Electronics Corp. 10.2* Development and License Agreement dated May 1, 25 1993 between Texas Instruments Incorporated and DSP Telecom, Inc. - ------------------- * Confidential treatment has been applied for or granted for portions of these agreements. The portions redacted have been filed separately with the Securities and Exchange Commission. 4 EX-10.1 2 EXHIBIT 10.1 EXHIBIT 10.1 NON-EXCLUSIVE DISTRIBUTION AGREEMENT BETWEEN DSP TELECOMMUNICATIONS LTD. HAVING A PRINCIPAL OFFICE 11 BEN GURION STREET GIVAT SHMUEL 51901 ISRAEL (HEREINAFTER CALLED "DSPT") AND TOMEN ELECTRONICS CORP. A JAPAN CORPORATION CORPORATION, GENERAL/LIMITED PARTNERSHIP (SOLE PROPRIETORSHIP) WHOSE PRINCIPAL OFFICE IS LOCATED AT 2-1-1, UCHISAIWAICHO, CHIYODA-KU, TOKYO, JAPAN (HEREINAFTER CALLED "DISTRIBUTOR") THIS AGREEMENT is made and entered into as of 1st day of January, 1994 between DSP TELECOMMUNICATIONS LTD. with place of business at 11 Ben Gurion Street, Givat Shmuel 51901, Israel and TOMEN ELECTRONICS CORP. (Distributor) with place of business at 2-1-1, Uchisaiwaicho, Chiyoda-Ku, Tokyo, Japan, which collectively are referred to hereinafter as "the parties". NOW THEREFORE, the parties hereto as follows: 1. DISTRIBUTOR SALES Distributor shall have the non-exclusive right to purchase Product (as hereinafter defined) from DSPT for resale through its distribution network in the country of JAPAN. Sales of such Product in the country of JAPAN to other than Distributor directly by DSPT's representatives, agents, or other authorized distributors shall not be of this Agreement. 2. PERFORMANCE (a) Performance under this Agreement shall be in accordance with the terms and conditions set forth herein and in Exhibit A (DSPT's current published Distributor Price List), Exhibit B (DSPT's Terms of Sale) and Exhibit C (Definitions). Exhibits are hereby incorporated fully into and made a part of this Agreement. In the event that any part of any Exhibit has been modified by, or are in conflict with the body of this Agreement, the language of the Agreement body shall prevail. (b) The relationship of DSPT and Distributor established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Distributor to create or assume any obligation on behalf of DSPT for any purpose whatsoever. All financial obligations associated with Distributor's business are the sole responsibility of Distributor. All sales and other agreements between Distributor and its customers are Distributor's exclusive responsibility and shall have no effect on Distributor's obligation under this Agreement. DSPT shall not create or assume any obligation on behalf of Distributor for any purpose whatsoever. 3. TERM OF AGREEMENT The term of this Agreement shall be twelve (12) months, commencing as of the date first written above, subject to the terms and conditions of Article 14 herein entitled Termination. In the absence of any such termination, this Agreement shall continue from year, automatically renewing upon each anniversary date, subject to the same terms and conditions contained herein. 4. PRODUCT (a) Product covered by this Agreement is defined as the terms listed in DSPT's Distributor Price List attached as Exhibit A, as modified from time to time by DSPT upon written notice to Distributor. (b) Additional Product may be added to this Agreement through mutual agreement on the conditions applicable to each Product by both parties. (c) In the event that DSPT shall agree to supply Distributor with any Product not listed in, or under conditions not covered in, DSPT's Distributor Price List attached as Exhibit A under this Agreement, where such Product is concerned certain provisions of this agreement may not apply, if both parties so agree in writing. the provisions which may not apply include price of such Product must be determined prior to acceptance by DSPT of Distributor's purchase order for such Product. 5. PRICING (a) DSPT shall sell to Distributor, and Distributor shall buy from DSPT Product at the prices shown in Exhibit A hereto, with payment therefore to be made in U.S. dollars. Should this Agreement be terminated by either party, for any reason, prior to payment of amounts due hereunder or pursuant hereto, such amount shall be paid as and when due on accordance with the terms hereof. DSPT will provide Distributor with "suggested OEM resale pricing" for the Product as guidelines only. Distributor shall have the unilateral right to establish the prices at which it will sell Product to its customers. (b) The pricing shown in Exhibit A does not include any federal, state or local taxes that may be applicable to the Product, and is subject to change at any time by DSPT. DSPT shall provide Distributor with notice of any such change, and the effective date thereof, by furnishing written notice to Distributor thirty (30) days prior to such effective date. (c) In the event DSPT decreases the published Distributor price in any product shown in Exhibit A, DSPT will furnish Distributor with a listing of items affected, showing the old price and the new price. Distributor may apply for a credit equal to the difference between the price paid by the Distributor, less any prior credits granted by DSPT and the new decreased price for the product, multiplied by the quantity of such Product in Distributor's inventory on the effective date of the price reduction. Issuance of such credit by DSPT may be contingent upon DSP's verification of Distributor's inventory report. All such credits will forthwith be applied to Distributor's account for subsequent purchase of Product. All products shipped after the effective date of a price decrease will be invoiced at the new/lower price. (d) In the event DSPT increases the published price on any Product shown in Exhibit A, such Product shipped on or after the effective date of such price increase shall be invoiced at the price in effect at the time Distributor's purchase order is accepted by DSPT. (e) The price for each item on every purchase order issued by Distributor shall be based on the quantity ordered at the time of purchase order placement and on DSPT's published price list in Exhibit A, as amended from time to time by DSPT. (f) In the event that a price reduction is authorized prior to the completion of an order, or a special situation occurs, where prior approval for a price reduction is authorized, a special equivalent to the amount requested times the appropriate quantity will be credited in the form of a shipment of no-charge Product at the end of each month in which the appropriate invoice is paid by Distributor. 6. DELIVERY, TITLE AND RISK (a) Shipment of all Product shall be F.O.B. DSPT's point of shipment, freight collect. Title to; and risk of loss or damage to, product shall pass to Distributor, upon delivery to carrier at the shipping point. In the event of carrier's miss-delivery, DSPT shall aid the Distributor in dealing with the carrier in tracing the shipment and obtaining delivery. Shipment made more than five (5) days ahead of schedule of shipments made against canceled orders are made at DSPT's risk and Distributor is not responsible or liable for the Product, but Distributor will aid DSPT in tracing the shipment and obtaining delivery. (b) DSPT shall not be liable for delays in delivery or failure to manufacture due to causes beyond its reasonable control, such as but not limited to: acts of God, acts or omissions of Distributor, priorities, fire, strikes, floods, epidemics, quarantine restrictions, riots, war and delays in transportation. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. 7. EXPORT CONTROL (a) Distributor agrees and warrants to DSPT that unless prior authorization is obtained from the United States Department of Commerce, neither Distributor nor its subsidiaries shall knowingly: (1) export or re-export, directly or indirectly, any technical data (as defined in Part 779 of the U.S. Export Administration Regulations), including software, received from DSPT, or (2) disclose such technical data or, (3) export re-export, directly or indirectly, any direct product of such technical data, to any destination or country to which the export or release of such technical data or products is restricted or prohibited by U.S. law. Such countries or destinations presently include: Afghanistan, Albania, Bulgaria, Cambodia, Cuba, Czechoslovakia, Estonia, the German Democratic Republic (including East Berlin), Hungary, Laos, Latvia, Libya, Lithuania, Mongolian People's Republic, Nicaragua, North Korea, Peoples Republic of China, Poland, Romania, The Union of Soviet Socialist Republics and Vietnam and military police or apartheid-enforcing entities in Namibia and South Africa. (b) The foregoing assurance is furnished by Distributor to satisfy the general license GTDR written assurance requirements under Part 779 of the U.S. Export Administration Regulations. (c) Distributor further agrees to obtain any necessary export license or other documentations prior to export or re-export of any Product or technical data, including software, acquired from DSPT or any product of such technical data. Accordingly, otherwise dispose of any such Product or technical data directly or indirectly to any person, firm or entity, or country or countries, prohibited by U.S., Japan or applicable other country law. (d) Further, Distributor shall give notice to the need to comply with such law to any person, firm entity which it has reason to believe is obtaining any such technical data or Product from DSPT with intention or exportation. (e) Each party shall secure, at its sole expense, such licenses and export and import documents as are necessary for it to fulfill its obligations under this Agreement. (f) This Article shall survive the cancellation or termination of this Agreement. (g) Seller shall attempt to give prior written notice of any contingent tax which might be imposed by the U.S. Government, including any federal, state, or local taxes. 8. ORDERING (a) All purchases of Products pursuant to this Agreement shall be effected by the issuance of Purchase Orders by Distributor to the terms and conditions of this Agreement. Such Purchase Orders CONFIDENTIAL TREATMENT REQUESTED shall state unit quantities, unit descriptions, applicable prices, requested delivery dates, F.O.B. point of shipment, payment terms and shipping instructions. Distributor shall endeavor to provide firm quantity and shipment releases consistent with DSPT's lead time for subject Products. (b) All Purchase Orders Issued by Distributor are subject to acceptance by DSPT at DSPT's home office in the U.S.A. 9. RESCHEDULING/CANCELLATION (a) For the purposes of this Article the following definitions shall apply: (i) "Standard Product" is defined as any Product which can be sold to any customer free of proprietary restrictions; and (ii) "Custom Product" is defined as any Product which has been developed for a specific customer and which is not free of proprietary restrictions regarding its use or sale. (b) Distributor may reschedule certain deliveries on existing orders for Standard Product upon written notice to DSPT according to the following schedule: Number of Days in Advance of DSPT's committed Delivery Date Permitted Rescheduling [**** ** ***** ****] [**** *******] [********* **** ** *** *******] [* *** **** **********] [*** ****** *****] [** *** **** **** *****] [**** **** ** * *** **] [***** ******* ***** **] [*** *****************] [******] [*** ******* *** ********** *****] [*** ************] [*********] (c) Distributor may reschedule certain deliveries on existing orders for Custom Product upon written notice to DSPT according to the following schedule: Number of Days in Advance of DSPT's Committed Delivery Date Permitted Rescheduling ------------------------------ ---------------------- [**** ** ***** ****] [**** *******] [********* **** ** *** *******] [* *** **** **********] [*** ****** ****] [** *** **** **** ******] [**** **** ** * *** **] [***** ******* ***** **] [*** ********* ********] [******] CONFIDENTIAL TREATMENT REQUESTED [*** ******* *** ********** ****] [*** ************] [*********] (d) Distributor may cancel deliveries on existing orders for Standard or Custom Product upon written notice to DSPT. In such event, Distributor shall pay a cancellation charge according to the following schedule. Cancellation Charge as of % of Cancelled order Value Number of Days in Advance of DSPT'S Committed Delivery Date Standard Product Custom Prodcut - ------------------------------ ------------------------------- [**** ** ***** ****] [****] [****] [********* **** ** *** *******] [***] [****] [*** ****** *****] [*** ******* *** ********** ****] [**] [******] [****** *****] (e) Notwithstanding the cancellation charges in paragraph (d) above, Distributor may, within [**** *** ******** ****] from the placement of any order with DSPT, cancel that order without penalty as long as DSPT has not shipped the order. 10. REPORTS Distributor shall send to DSPT within twenty (20) working days after the end of each month, a written report containing the following information by location: (a) A detailed inventory of all Products, at the end of said month, with quantities and prices paid. (b) A detailed Point of Sale (P.O.C.) activity report including the names of customers with programs, Products, quantities purchased, and the dollar amounts invoiced to said customers. (c) Sales projections and bookings targets for the next six (6) months. (d) "Design-in" status activity with Distributor's assigned accounts. 11. ADVERTISING AND PROMOTION (a) DSPT agrees to supply Distributor with its usual sales promotion and advertising materia, in quantities to be mutually agreed upon, without cost to Distributor and to support the efforts of Distributor with DSPT's usual advertising and other sales promotion efforts. All such material shall be returned to CONFIDENTIAL TREATMENT REQUESTED DSPT in good condition, except for reasonable wear, immediately upon demand by DSPT. (b) Distributor agrees to promote the sale of DSPT's Product, at its own expense, through various media advertising and other sales promotional efforts. Special advertising pr promotion programs may be agreed upon from time to time in which the parties will agree to some sharing of the costs. (c) A coop advertising program will be defined with a budget established which is equivalent to .2% of annual sales. 12. WARRANTY (a) DSPT agrees to extend the [*** ****] limited warranty to Distributor as stated in Exhibit B to a period of [******** **** ******] from date of shipment by DSPT to Distributor, or [*** *** ****] from date of shipment from Distributor to Distributor's customer, whichever comes first. (b) THE WARRANTY IN EXHIBIT B AS EXTENDED ABOVE IS EXPRESSED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND IN LIEU OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OD DSPT. (c) DSPT's LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO A REFUND OF THE DISTRIBUTOR'S PURCHASE PRICE. IN NO EVENT SHALL DSPT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OR WARRANTY. 13. RETURNS AND REPURCHASES (a) Within thirty (30) days after the initial twelve (12) month period of this Agreement, and within thiety (30) days following each successive twelve (12) month period thereafter, Distributor may return any slow or non-moving Product in a new and unused condition for credit to be applied against future purchases, at the net price paid less any prior credits granted by DSPT to the Distributor for such returned Product. For the purposes of this paragraph, "slow or non-moving Product" shall mean those Products for which Distributor's inventory turns (period unit sales divided by ending unit inventory) for the previous twelve (12) month period are less than six (6). (b) Products inventoried as new Products introduced by DSPT for original stocking orders of recommended stocking programs may by returned for credit to by applied against future purchases by the Distributor at the ecperation of the initial twelve (12) month period of stocking. These returns will not be subject to any offsetting order requirements. 14. TERMINATION (a) Either party may at any time terminate this Agreement with or without cause upon ninety (90) days written notice after having a review meeting with the other party to discuss the termination. It is expressly understood and agreed that the rights of termination set forth above are absolute and that both parties hereto have considered the making of expenditures in preparing for performance under this Agreement and possible losses incident and resulting to them in the event of its termination. Therefore, in agreeing to said terms of termination, it is with full knowledge of such possibilities and either party hereto shall not be responsible to the other for damage, or otherwise, by reason of the fact of termination of the Agreement. (b) Distributor warrants that all identifying signs, literature, logos and other evidence provided by DSPT upon termination of this Agreement. Distributor will cease production of any such materials upon termination, and shall cease advertising that there is any business relationship between the parties. (c) Should this Agreement be terminated by either party prior to payment of amounts due hereunder or pursuant hereto, such amount shall be paid as and when due in accordance with the terms hereof. (d) In event of termination of this Agreement without cause, all orders received and accepted by DSPT as of the date of such termination notice shall be unaffected by such notice. DSPT will accept orders from Distributor os contractually obligated to furnish its customers and does not have in its inventory provided Distributor notifies DSPT of any and all such transactions in writing within (30) days of the termination date. (e) If this Agreement is terminated by DSPT without cause, by Distributor with cause, or by Distributor for any reason during the first twelve (12) months term of this Agreement, DSPT shall repurchase at Distributor's option, any of all Products remaining in Distributor's inventory, provided that Distributor requests such repurchases in writing within thirty (30) days of such termination, subject to the following: (1) If price to be paid for the repurchase of said inventory shall be the net amount of Distributor cost at the time of purchase less any subsequent price credits issues by DSPT. (2) All Products must be new, unused, undamaged, and in good merchantable condition after inspection and testing by DSPT will supply proper packaging material. (3) All Products will be shipped F.O.B. Distributor's designated facility, freight collect. (f) If this Agreement is terminated by DSPT with cause, by Distributor without cause, following the first twelve (12) months term of this Agreement, DSPT shall repurchase at DSPT's option, CONFIDENTIAL TREATMENT REQUESTED all unsold Products remaining in Distributor's inventory subject to the following: (1) The price to be paid for the repurchase of said inventory shall be the net amount of Distributor's cost at time of purchase less any subsequent price credits issued. (2) All Product must be new, unused, undamaged, and in good merchantable condition after inspection and testing by DSPT. (3) All Product will be shipped F.O.B. Distributor's designated facility, freight collect. 15. ACCOUNTING (a) Terms of Payment: [****] discount for [***** *** ****] payment, net [****** **** ****] (b) Billbacks (Rebills) DSPT and Distributor shall be jointly responsible for reconciling their accounts in a timely manner, Distributor adjustments, debit memos, and Billbacks must be forwarded to DSPT within [***** **** ****] of the transaction date. DSPT must reply to any such adjustment, debit memo, and billback-in writing within [***** **** ****] of the date of notification. Any other entries will be considered valid and closed to further negotiations. The only exception to this policy will be for formal DSPT audit findings. (c) DSPT Audits DSPT may request audits of physical inventory and books of record pertaining to DSPT Product of annual basis. No audit shall be retroactive more than fifteen (15) months. Audit findings will be submitted to the Distributor in writing within ninety (90) days from the day the audit stated. Therefore, when the audit findings are received by the Distributor, no item will be more than eighteen (18) months old. 16. GENERAL (a) This Agreement, including any Exhibits hereto attached or incorporated by reference, constitutes the sole and entire Agreement between DSPT and Distributor concerning the subject matter hereof, supersedes all prior communications or agreements written of oral, and is intended as a complete and exclusive statement of the terms of the Agreement between the parties. Except as explicitly permitted herein, this Agreement may be modified only in writing, signed by authorized representatives of both parties. (b) Both parties represent and warrant to each other that each has the right and power to enter into this Agreement, and that there are no outstanding assignments, grants, licenses, encumbrances, obligations or agreements, either written, oral or implied, inconsistent with this Agreement. (c) The transfer, delegation or assignment by either party of this Agreement, or any of its duties, obligations, or rights hereunder, without the prior written consent of the other party shall be void. (d) IN NO EVENT SHALL DSPT BE LIABLE TO DISTRIBUTOR OR ANY OTHER ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES HOWEVER CAUSED, WHETHER OR NOT DSPT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF DSPT ARISING OUT TO THIS AGREEMENT AND/OR SALE OF PRODUCTS HEREUNDER. (e) DSPT shall not be liable or delays in delivery or failure to manufacture due to causes beyond its reasonable control, such as but not limited to inability to obtain necessary labor, materials, or manufacturing facilities. (f) Distributor agrees that DSPT owns all right, title, and interest in the product lines that include the Product now or hereafter subject to this Agreement, and in all of DSPT patents, trade marks, trade names, inventions, copyrights, know-how and trade secrets relating to the design, manufacture, or operation of the Products. The use by Distributor of any of these property rights is authorized only for the purposes herein set forth, and upon termination of this Agreement for any reason such authorization shall cease. (g) Distributor acknowledges that by reason of its relationship to DSPT hereunder, it may have access to certain information and materials concerning DSPT business, plans, customers, technology, and products that are confidential and of substantial value to DSPT, which value would be impaired if such information were disclosed to third parties. Distributor agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by DSPT. Only items marked confidential by DSPT shall not publish any technical description of the Products beyond the description published by DSPT. In the even of termination of Agreement, there shall be no use or disclosure by Distributor of any confidential information of DSPT. Distributor shall not manufacture or have manufactured any devices, components or assemblers utilizing any of DSPT's confidential information. (h) All notices required to be given hereunder shall be given in writing by personal delivery or by a certified letter to the respective address as may be designated in writing by either party and delivered to the other party. Notice given by certified mail shall be deemed given five (5) days after mailing date to the current address of the party. The current addresses of the parties are as follows: DSPT: DSP TELECOMMUNICATION LTD. 11 Ben Gurion Street Givat Shmuel 51901 ISRAEL Distributor: TOMEN ELECTRONICS CORP. 2-1-1, Uchisaiwaicho Chiyoda-ku, Tokyo, Japan (i) This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of California, U.S.A. (j) Any dispute between the parties arising out of this Agreement shall be submitted to final and binding arbitration of San Jose, California, under the then current Arbitration Rules and supervision of the American Arbitration Association, upon written notification and demand by either party hereto. The American Arbitration Association shall be requested to submit a list of prospective arbitrators expericnced in commercial contracts involving the semiconductor industry, and the parties shall select a single arbitrator from such list to conduct the arbitration. The arbitrator may not award punitive or exemplary damages, and the decision and award of the arbitrator shall be final and binding and may be entered and any court of competent jurisdiction. The parties hereto agree to pay their own attorneys' fees associated with the arbitration, and to pay the other costs and expenses of the arbitration as the rules of the American Arbitration Association provided. The provisions of California Code of Civil Procedure Section 1283.05 permitting the taking of depositions and obtaining discovery shall be applicable to any arbitration. (k) The terms and conditions herein contained together with the Exhibits attached hereto and incorporated by reference constitute the entire and final Agreement between the parties with respect to the subject matter hereof, supersede all previous communications, representations, understanding or agreements, either oral of written, between the parties with respect to such subject matter, and shall take precedence over any additional or conflicting terms which may be contained in either party's Quotations, Purchase Orders, Acknowledgements or invoices. (l) No agreement or understanding varying or extending any of the terms or provisions hereof shall be binding on either party unless in writing and signed by duly authorized representative of both parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. DSP TELECOMMUNICATION LTD. ("DISTRIBUTOR") (DSPT) TOMEN ELECTRONICS CORP. By: \s\ Gideon Barak By: \s\ J. Ishikawa ----------------------- ------------------------ Printed Name: Gideon Barak Printed Name: J. Ishikawa -------------- --------------- Title: President Title: President -------------------- ---------------------- Date: December 1, 1993 Date: February 15, 1994 -------------------- ---------------------- EXHIBIT A DSP TELECOMMUNICATION LTD. DISTRIBUTOR PRICE LIST TO BE PROVIDED CONFIDENTIAL TREATMENT REQUESTED EXHIBIT B DSP TELECOMMUNICATIONS INC. ("SELLER") TERMS AND CONDITIONS OF SALE 1. GENERAL: The terms and conditions of sale contained herein apply to all quotations mad and purchase orders entered into by the Seller. The said terms and conditions may in some instances conflict with some of the terms and conditions affixed to the form order blank and/or specified by the Buyer. Therefore, acceptance of the Buyer's order is made only on the express understanding and condition that insofar as the terms and conditions of this acceptance conflict with any terms and conditions of the Buyer's order, the terms and conditions of this acceptance shall govern, Irrespective of whether the Buyer accepts these conditions by written acknowledgement, by implication, or acceptance and payment of goods ordered thereunder. Seller's failure to object to provisions contained in amy communication from Buyer shall not be deemed a waiver of the provisions contained herein must specifically be agreed to in writing by the general manager of the Sellers before becoming binding on either the Seller or the Buyer. All orders or contracts must be approved and accepted by the Seller at his home office. The said terms and conditions of sale shall be applicable whether or not they are attached to or enclosed with the products to be sold or sold hereunder. 2. PRICES: Irrespective of any prices quoted by Seller or listed on Buyer's order, and order is accepted only at the prices shown on Seller's acknowledgement. Prices quoted for the items described on said acknowledgement are firm and not subject to audit or price redetermination. Prices are subject to revision only when interruptions, engineering changes or changes in the quality are caused or requested by Buyer. 3. TAXES: All prices are quoted, all orders accepted, and all billings rendered exclusive of all federal, state and local excise, sales, use and similar taxes. Consequently, in addition to the prices specified herein, the amount of any present or future excise, sales, use or similar tax applicable to the sale of the product hereunder shall be paid by Buyer, or in lieu thereof Buyer. Shall provide Seller with a tax exemption certificate, to the taxing authorities. such taxes, when receives a proper tax-exemption certificate from Buyer prior to shipment. 4. TERMS AND METHOD OF PAYMENT: Where Seller has extended credit to Buyer, terms of payment shall be net [****** **** ****] from date of invoice. No discounts are authorized. The amount of credit may be changed or credit whitdrawn by Seller at any time. On any order on which credit is not extend by Seller, With Order (in whole or part), C.O.D.' or Sight Draft attached to Bill of Lading or other shipping documents, with all costs of collection for the account of Buyer. If in the judgement of the Seller, the financial condition of the Buyer at any time does not justify continuation of production or shipment on the terms of payment originally specified, the Seller may require full or partial payment in advance and, in the event of the bankruptcy or insolvency of the Buyer or in the event any proceeding is brought entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges. Each shipment shall be considered a separate independent transaction, and payment therefore shall be made accordingly. If shipments are delayed by the Buyer, payments shall become due on the date when the Seller is prepared to make shipment. If the work covered by the purchase order is delayed by the Buyer. The Seller reserves the right to shop to its order and make collection by sight draft with bell of lading attached. 5. TITLE AND DELIVERY: All sales are made F.O.B. point of shipment. Seller's title passes to Buyer and Seller's liability as to delivery ceases upon making delivery of material purchased hereunder to carrier at shipping point in good condition, the carrier acting as Buyer's agent. All claims for damages must be filed with the carrier. All shipments will normally be made by Parcel Post, Railway Express, Air Express or Air Freight. Unless specific instructions from Buyer specify which of the foregoing methods of shipment is to be used, the Seller will exercise his own discretion. Shipping dates are approximate and are based upon receipt from Buyer of all necessary information. Seller shall not be responsible for any failure to perform arising from causes beyond its control. These causes shall include but not be restricted to fire. storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, epidemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes, or failure or delays in transportation, inability to secure raw materials or machinery for the manufacture of its devices, acts of God, acts of the Federal Government or any agency thereof, and judicial action. In the event of any such delay the date of delivery shall, at the request of the Seller, be deferred for a period equal to the time lost by reason of the delay. In the event of any delay by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order. If despite any default by Buyer's Seller elects to continue to make shipments, its action shall not constitute a waiver of any default by Buyer or in any way affect Seller's legal remedies of any such default. Right of possession of the products sold hereunder shall remain with Seller and such products shall remain personal property until all pay payments hereunder (including deferred payments whether evidence by notes or otherwise) shall have been made in full in each, and Buyer agrees to do all acts necessary to perfect and maintain such right and title in Seller. 6. ASSIGNMENTS: The Buyer shall not assign his order or any interest therein or any rights thereunder without the prior written consent of Seller. 7. PATENTS: Buyer shall indemnify, defend and hold Seller harmless against any expenses, damages or costs resulting from any suit or proceeding brought for infringement of patents or trademarks or unfair competition arising from compliance with Buyer's designs or specifications or instructions. With respect to products manufactured solely to Seller's designs or specifications, Seller shall defend any suit or proceeding brought against Buyer so far as based on a claim that any such products, or any parts thereof, furnished hereunder constitutes an infringement of any patent of the United States, if notified promptly of such claim in writing and given authority, information and assistance (at Seller's expenses) for the defense of same, and Seller shall pay all damages and costs awarded therein against Buyer. In case said products or any parts thereof, are in such suit held to constitute infringement and the use of said products or parts is enjoined, Seller shall, in its sole discretion, at its own expense, wither procure for the Buyer the right to continue using said products or parts or replace same with noninfringing products, or modify them so they become noninfringing, or remove said products and refund the purchase price and the transportation costs thereof. The foregoing states the entire liability of the Seller of patent infringement by the said products or any part thereof. Seller shall not be liable for any costs or damages incurred by Buyer as a result of any suit or proceeding brought against the Buyer and Buyer will indemnify, defend and hold Seller harmless from any expenses, damages or costs resulting from any suit or proceeding brought against Seller, either severally, or jointly with Buyer, so far as such suit or processing brought against Seller, wither severally, or jointly with Buyer, so far as such suit or proceeding is based on claims (a) that use of any product or any part thereof, furnished hereunder, in combination with products not supplied by Seller or (b) that a manufacturing or other process utilizing any product, or any part thereof furnished hereunder, constitute either direct or contributory infringement of any patent of the United States. Sale of products or any parts thereof, hereunder confers on the Buyer no license under any patent rights of Seller governing or relating to (a) the structure of any devices to which the products or parts may be applied, or (b) a process or machine in connection with which they may be used. 8. WARRANTIES AND ADJUSTMENTS: (a) Standard Products Warranty and Adjustments. Standard products of Seller are warranted to CONFIDENTIAL TREATMENT REQUESTED be free from defects in materials and workmanship and to meet the applicable specifications when tested to published specifications for a period of [*** ****] from date of shipment. THE FOREGOING IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. The liability of Seller under this warranty is limited solely in replacing, or repairing, or issuing credit (at the discretion of Seller) for such products that become defective or fail to meet the specifications during the schedule period, or prior to the date Buyer uses or resells such products, whichever date sooner occurs, provided that, Seller will not be liable under this warranty unless (i) Seller is promptly notified in writing by Buyer upon discovery of defects or failure too meet specifications, (ii) the defective unit is received by seller for adjustment no later than [**** *****] following the last day of the warranty periods, and (iv) Seller's examination of such unit shall disclose, to its satisfaction, that such defects or failure have not been caused by misuse, neglect, improper installation, repair, alteration or accident. Any authorization for repairs or alteration must be in writing or prevent voiding warranty. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OF PROFITS, LOSS OF USE OR DAMAGES OF ANY KIND BASED UPON A CLAIM FOR BREACH OF WARRANT. This warranty excludes developmental products, which are covered by separate warranty. (b) Developmental Products Warranty. Developmental products of Seller are warranted to be free from defects in materials and workmanship and to meet the applicable preliminary specifications. Upon receipt by Buyer. THE FOREGOING IS IN LIEU OF ANY OTHER WARRANTY EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. The liability of Seller under this warranty is limited solely to replacing, or issuing credit (which will be negotiated by both parties) for such products as are defective at the time they are received by Buyer, provided that Seller will be liable under this warranty unless (i) Seller is promptly notified in writing upon discovery of defects by Buyer, (ii) the defective unit is returned to Seller for adjustment no later than [**** ***** **** *****] following the date on which such products are first shipped by Seller, and (iv) Seller's examination of such unit shall disclose, to its satisfaction, that such defects have not been caused by misuse, neglect, improper installation, repair, alteration or accident. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OF PROFITS, LOSS OF USE, OR DAMAGES OF ANY KIND BASED UPON A CLAIM FOR BREACH OF WARRANTY. Technical Advice. Seller's warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Seller's rendering of technical advice or service in connection with Buyer's order or the products furnished hereunder. 9. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS OR GOODWILL) OR SPECIAL DAMAGES RESULTING FROM ITS PERFORMANCE OR PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR SUCH PARTY'S NEGLIGENCE. EXHIBIT C DEFINITIONS A. TERMINATION FOR CAUSE Any of the following events or occurrences are defined as a breach of the Agreement, giving the injured party the right to terminate the Agreement for cause, such termination exercisable by the injured party at its option. The waiver of any instance of breach under the Agreement shall not constitute waiving of the right to terminate the Agreement for any subsequent or like breach. (1) Any proceeding in bankruptcy or insolvency filed by or against either party, or appointment of a Receiver or Trustee for such party or of a substantial assignment for the benefit of the creditors of either party without the prior written consent of the other party. (2) Failure by either party to substantially perform any material covenant, obligation or warranty set forth in the Agreement; or violation by either party of any material covenant, obligation, agreement or warranty set forth in the Agreement. (3) Any significant change in ownership of wither party that adversely affects the relationship of the parties. B. TERMINATION WITHOUT CAUSE Termination without cause is the termination of the Agreement, by either party, upon the unilateral action of the terminating party for its primary convenience and interest, for reasons other than those defined as breach. C. DISCONTINUANCE Product will be considered discontinued by manufacture if it is removed from DSP'T Distributor Price List upon advance written notice to Distributor. D. TAXES When DSPT has the legal obligation to collect federal, state, or local taxes, the appropriate amount shall be added to Distributor's invoice and paid by Distributor unless Distributor provides manufacturer with a valid tax exemption certificate acceptable to the appropriate taxing authority. EX-10.2 3 EXHIBIT 10.2 EXHIBIT 10.2 DEVELOPMENT AND LICENSE AGREEMENT TEXAS INSTRUMENTS INCORPORATED, acting through its Semiconductor Group ("TI") and DSP TELECOMMUNICATIONS INC. ("DSPT") agree that this Agreement shall have an effective date of May 1, 1993, and shall include Attachments I and II. The parties agree as follows: 1. DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: a. "ROM Code" shall mean the DSPT implementation of software which DSPT provides to TI hereunder in object code format, including any updates, revisions or enhancements that DSPT deems necessary and DSPT makes to that software and provides to TI. b. "ROM 320" shall mean the masked ROM version of TI's 320 device which TI shall produce incorporating the ROM Code. c. "TI Subsidiaries" shall mean any company fifty percent (50%) or more of whose capital stock is owned by TI. 2. SCOPE This Agreement contemplates the development and sale by TI of masked ROM versions of TI's TMS320 devices which incorporate the ROM Code developed by DSPT. TI and DSPT shall execute project Amendments to this Agreement in the basic format as is included in Attachment I for each masked ROM TMS320 device to be developed and sold pursuant to this Agreement. 3. RESPONSIBILITIES For each ROM 320 TI is to develop, DSPT shall provide the following items to TI: a. Executable object code software for the ROM release according to the system specification; b. Document source for product brochure; c. Document source for product data sheet; d. Document source for appropriate application reports; e. Demonstration/evaluation modules. The ROM Code shall be furnished by DSPT to TI in an agreed upon code format. The data shall be transmitted to TI on floppy disk (MS-DOS Compatible) or via upload to TI's bulletin board (713) 274-2323. Upon receipt and verification of the ROM Code, TI will generate the necessary tooling to manufacture ROM Coded TMS320 Devices. TI shall be responsible for developing the ROM 320, and pursuant to the marketing limitation provisions set forth in Attachment II, marketing the ROM 320 through TI's channels of distribution to a DSPT customer listed in Attachment II. Except as specifically authorized under this Agreement TI agrees not to use the ROM Code provided to TI hereunder to manufacture and sell any products to any customer including DSPT's customers listed on Attachment II. 4. OWNERSHIP/LICENSES a. DSPT shall have and retain all rights, title and interest in the ROM Code which it provides pursuant to this Agreement. Subject to the terms and conditions of this Agreement and the Amendment(s), DSPT agrees to; and hereby grants to TI a nonexclusive, worldwide, non-transferable license to incorporate the ROM Code into ROM 320 devices, manufacture the ROM 320 devices, and distribute those ROM 320 devices to the companies listed on Attachment II at the prices listed therein. Further, TI shall be restricted from, and shall restrict others from, reverse assembling or decompiling the ROM Code or otherwise using the ROM Code, ROM 320, or TI's relationship with DSPT to appropriate for itself or others the underlying software or technology. b. TI shall be solely responsible for determining the price and terms of its sales of ROM 320's. c. TI shall include DSPT's copyright notice on the ROM 320 devices produced hereunder along with TI's standard copyright and other markings. d. TI shall have and retain all rights, title and interest in the ROM 320 devices produced by TI pursuant to this Agreement, provided that such rights shall not be construed to conflict with DSPT's ownership of the ROM Code. e. TI agrees that in the event of breach of either the license restrictions or the copy right obligations identified in this Agreement, DSPT shall have the right to enforce such restrictions and obligations in law or at equity at DSPT's option. These restrictions and obligations, and DSPT's right to enforce them, shall survive the termination of this Agreement for any reason. 5. ROYALTIES TI agrees to pay DSPT the royalties specified in the particular project Amendment. Such royalties shall be payable quarterly. Ti will provide DSPT with a statement certified by the responsible TI Business Manager showing (a) the quantity sold by TI, its subsidiaries and affiliates during such period. While this Agreement is in effect and for two (2) years after its termination, TI shall keep accurate records reflecting the performance of its obligations under this Agreement, and DSPT, at its expense, shall have the right no more than one (1) time per year to have an independent Certified Public Accountant, mutually agreeable to TI and DSPT, inspect and audit TI's books and records pertaining to TI's distribution of the particular ROM 320. If the audit reveals that TI has under paid royalties by an amount equal to or greater than ten percent (10%) of the royalties owed, then TI shall bear all expenses reasonably incurred by DSPT in connection with the audit. 6. NONRECURRING ENGINEERING DSPT or TI shall pay nonrecurring engineering costs, if applicable, as specified in the particular project Amendment. 7. PROPRIETARY INFORMATION In the event that either party hereto wishes to disclose to the other party information which it deems proprietary, such disclosing party shall notify the receiving party in writing of its desire and if the receiving party wishes to accept such information, the parties, prior to disclosure, shall execute a separate agreement to cover such disclosure. 8. TERMINATION a. This Agreement and the license contained herein shall continue in full force and effect unless and until terminated as set forth below. Upon termination under Paragraph 8.c. below for TI's default or for TI's convenience under Paragraph 8.b., TI's license to distribute ROM 320's shall terminate and, TI immediately shall cease further distribution of ROM 320's and shall return the ROM Code to DSPT (except that TI may retain one archival copy of the ROM Code). b. Either party may terminate this Agreement in whole or in part for its convenience upon sixty (60) days prior written notice to the other party. c. Either party has the right to terminate this Agreement and any licenses it has granted hereunder if the other party is in default of any obligation hereunder and such default is not cured within thirty (30) days of the defaulting parties' receipt of notice of such default (or such additional cure period as the nondefaulting party may authorize). Default shall include, without limitation, failure to comply with any of the material terms and conditions hereof and violating the terms of any licenses granter hereunder. d. Upon expiration or termination by DSPT under Paragraph 8.b. above or by TI after following the provisions of Paragraph 8.c. above, TI's licenses as set forth in Paragraph 4 shall survive as to any project Amendments executed hereunder and the royalty obligations as set forth in Paragraph 5 above shall also survive such expiration or termination. e. The termination of this Agreement shall not be deemed to affect any orders which have already been entered and acknowledged by TI prior to the date of such termination. 9. TI SALES TO DSPT It is understood and agreed that DSPT may order ROM 320 devices directly from TI. 10. WARRANTIES AND INDEMNITY a. DSPT represents and warrants that DSPT has no knowledge that the ROM Code infringes any patents, copyrights, trade secrets, trademarks, or other proprietary rights of any third party. b. DSPT shall defend any suit or proceeding brought against TI insofar as such suit or proceeding is based on a claim that any goods manufactured and supplied by DSPT to TI constitute direct infringement of any duly issued United States patent or copyright and DSPT shall pay all damages and costs finally awarded therein against TI, provided that DSPT is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at DSPT's expense) necessary to defend or settle said suit or proceeding. DSPT shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with TI's specifications, or from a combination with, an addition to, or a modification of the goods after delivery by DSPT, or from use of the goods, or any part thereof, in the practice of a process. DSPT's obligations hereunder shall not apply to any infringement occurring after TI has received notice of said suit or proceeding or other communication alleging the infringement unless DSPT has given written permission for such continuing infringement. If any goods manufactured and supplied by DSPT to TI shall be held to shall be enjoined from using same, DSPT will exert all reasonable efforts, at its option and at its expense, (a) to procure for TI the right to use such goods free of any liability for patent or copyright infringement, or (b) to replace such goods with a noninfringing substitute otherwise complying substantially with all requirements of this Agreement, or (c) refund any costs incurred by TI with respect to goods already manufactured under this Agreement. c. TI's warranty for the ROM 320 shall be TI's standard warranty as set forth in TI's Standard Terms and Conditions of sale (TI-5059) which are attached hereto as Exhibit C. NEITHER PARTY MAKES ANY OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. d. TI shall defend any suit or proceeding brought against DSPT insofar as such suit or proceeding is based on a claim that any goods manufactured and supplied by TI to DSPT constitute direct infringement of any duly issued United States patent or copyright and TI shall pay all damages and costs finally awarded therein against DSPT, provided that TI is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at TI's expense) necessary to defend or settle said suit or proceeding. TI shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with DSPT's specifications, or from a combination with, an addition to, or a modification of the goods after delivery by TI, or from use of the goods, or any part thereof, in the practice of a process. TI's obligations hereunder shall not apply to any infringement occurring after DSPT has received notice of said suit or proceeding or other communication alleging the infringement unless TI has given written permission for such continuing infringement. If any goods manufactured and supplied by TI to DSPT shall be held to infringe any duly issued United States patent or copyright and DSPT shall be enjoined from using same, TI will exert all reasonable efforts, at its option and at its expense, (a) to procure for DSPT the right to use such goods free of any liability for patent or copyright infringement, or (b) to replace such goods with a noninfringing substitute otherwise complying substantially with all requirements of this Agreement, or (c) refund any sums paid by DSPT with respect to such goods under this Agreement. e. Neither party shall have any authority to make any representation or warranty on the other party's behalf regarding the ROM 320 devices or the ROM Code. f. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES FOR PATENT AND/OR COPYRIGHT INFRINGEMENT AND IS IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO. 11. LIMITATION OF LIABILITY TI's liability under this Agreement shall be limited to the amount of royalties accrued under this Agreement, if any. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12. INDEPENDENT CONTRACTOR It is expressly understood that DSPT and TI are contractors independent of one another, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, or make representations or agreements on behalf of the other, unless otherwise expressly agreed to in a writing signed by both parties hereto. Each party represents that its efforts to market products referred to herein shall be totally independent and each party shall compete with the other as each unilaterally determines. Further, each party represents that it shall not provide the other with cost data or pricing information, nor otherwise exchange customer and market information. This provision does not prohibit each party from identifying potential customers for products referred to herein, provided that each party independently competes for the markets and customers of its choice. 13. ASSIGNMENT Neither party shall assign any of its rights or delegate any of its duties pursuant to this Agreement without the express written consent of the other party. Any attempted assignment, transfer, sale, or delegation in derogation of this paragraph shall be void. 14. NON-WAIVER No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. The waiver by either party of any right created by this Agreement in one or more instances shall not be construed as a further continuing waiver of such right or any other right created by this Agreement. 15. COMMUNICATIONS AND ADMINISTRATION The persons designated below shall have cognizance of the work performed pursuant to this Agreement, and general administration of the Agreement shall be through them. For TI: For DSPT ------ -------- Gene Frantz Gabriel Hilevitz Texas Instruments Incorporated DSP Telecomm. P.O. Box 1443, M/S 701 11 Ben Gurion Street Houston, Texas 77251-1443 Givat Shmuel, 51905, Israel 16. CONFLICTING AGREEMENTS Each party represents that it is not a party to any other existing agreement which would prevent it from entering into this Agreement or which would adversely affect this Agreement. 17. RELEASE OF INFORMATION Neither party shall, without the written consent of the other, publicly announce the content of this Agreement, or advertise or release any publicity in regard thereto except as may be required by a government agency without the prior written consent of the other party. This provision shall survive the expiration or termination of this Agreement. 18. APPLICABLE LAW This Agreement and performance hereunder shall be governed by and construed and enforced in accordance with the laws of the State of California. 19. NON-EXCLUSIVITY Nothing contained in this Agreement shall be construed as a restriction on either party's independent development, manufacture and sale, for itself or others, of any product which is the same as products provided and developed hereunder, provided that such development, manufacture or sale does not violate any of the other provisions or licenses of this Agreement. 20. ORDER OF PRECEDENCE The terms and conditions contained in this Agreement take precedence over any additional or different terms and conditions contained in any attachment hereto. 21. NOTICES Any notice, request, instruction or other document required or permitted to be given hereunder shall be in writing or a facsimile and shall be valid and sufficient if dispatched by registered or certified mail, postage prepaid, in any post office in the United States, addressed as follows: If to TI: If to DSPT: -------- ----------- Texas Instruments Inc. Gabriel Hilevitz 8390 LBJ Freeway DSP Telecomm. P.O. Box 655303, M/S 3684 11 Ben Gurion St Dallas, Texas 75265 Givat Shmuel, 51905, Israel Attn: Manager, Business Services or, in any case, to such changed address or person as TI or DSPT shall have specified to the other by written notice. 22. MISCELLANEOUS a. If any provision of this Agreement is determined to be illegal or unenforceable, all other provisions shall remain in full force and effect. b. In the event that this Agreement is terminated, the payment date of all royalties that already have accrued shall be accelerated and such royalties shall become immediately due and payable as of the date of termination. c. This Agreement shall be binding upon, and inure to the benefit of, successors in interest to, and permitted assigns of TI and DSPT. 23. ENTIRE AGREEMENT This document, including any Attachments referred to herein and by this reference hereby incorporated, constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties or any official or representative thereof. This Agreement may not be altered, amended, or supplemented in any respect except by a writing signed by an authorized representative of each party. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their authorized representatives effective as of the date first stated above. TEXAS INSTRUMENTS INCORPORATED DSP TELECOMMUNICATIONS, INC. Semiconductor Group By: \s\ Richard K. Templeton By: \s\ Gideon Barak ------------------------------ ------------------------- Printed Name: Richard K. Templeton Printed Name: Gideon Barak -------------------- ---------------- Title: Vice President, SC Group Title: President --------------------------- ----------------------- Date: October 14, 1993 Date: 8/23/93 ---------------------------- ------------------------ ATTACHMENT I A5001D AMPS Chipset 1. SCOPE: D5001D Digital AMPS chipset is a two chip chipset made up of a ROM coded DSP device and a Gate Array. Only the DSP and ASIC devices are covered under this Attachment. 1. REQUIREMENTS: DSP ASIC a. Part Numbers TI base set: TMS320C18 ROM Code Number: D78003U-PH F104284-PH DSPT P/N: A5001D11AOC D5001D71AOC b. Specification Per A5001D data sheet: Voltage Range: 5V +/- 5% 5V +/- 5% Frequency Range: Temperature Range: 0 to 70C 0 to 70C c. Other Requirements: Part numbers and specifications are the latest as of the sign off of this Attachment. Future releases and specification changes of this chip set will be included in this Agreement. 3. NONRECURRING ENGINEERING: None 4. MARKETING LIMITATIONS: None 5. ROYALTY: DSP: $2.70/device ASIC: $1.05/device 6. SIGNATURES: TEXAS INSTRUMENTS INCORPORATED DSP TELECOMMUNICATIONS, INC. Semiconductor Group By: \s\ Richard K. Templeton By: \s\ Gideon Barak ------------------------------ ------------------------- Printed Name: Richard K. Templeton Printed Name: Gideon Barak -------------------- ---------------- Title: Vice President, SC Group Title: President --------------------------- ----------------------- Date: October 14, 1993 Date: 8/23/93 ---------------------------- ------------------------ CONFIDENTIAL TREATMENT REQUESTED ATTACHMENT II The following companies and such other companies as the parties hereto agree in writing to add to this list shall be approved for direct (i) order placement with, (ii) shipment from, (iii) invoicing from, and (iv) payment to TI. [***] -----END PRIVACY-ENHANCED MESSAGE-----