Exhibit
10.32


 


 


Exclusive
Marketing, Sales


and Supply Agreement


 


 


between
the companies


 


 


Acrodyne
Industries, Inc.


516
Township Line Road


Blue
Bell, Pennsylvania 19422 U.S.A


-herein
after referred to as “Acrodyne” or “party”-


 


 


and


 


 


Rohde
& Schwarz


GmbH
& Co KG


Mühldorfstr.15


81671
München


Federal
Republic of Germany


-hereinafter
referred to as “R&S” or “party”-


 


 


-both
Parties hereinafter referred to as the “parties”-


 


 


1

















 


	
  Table of Contents

  	
   

  	
   

  
	
  1.

  	
  Preamble

  	
   

  	
   

  
	
  2.

  	
  Subject

  	
   

  	
   

  
	
  3.

  	
  Product Portfolio

  	
   

  	
   

  
	
  4.

  	
  Labeling

  	
   

  	
   

  
	
  5.

  	
  Market Specific Customization

  	
   

  	
   

  
	
  6.

  	
  Production, Testing and Commissioning

  	
   

  	
   

  
	
  7.

  	
  Marketing and Sales Channel

  	
   

  	
   

  
	
  8.

  	
  After Sales Service

  	
   

  	
   

  
	
  9.

  	
  Transfer Prices

  	
   

  	
   

  
	
  10.

  	
  Duration and Termination

  	
   

  	
   

  
	
   

  	
  GENERAL PROVISIONS

  	
   

  	
   

  
	
  11.

  	
  Entirety

  	
   

  	
   

  
	
  12.

  	
  Superseding Effect

  	
   

  	
   

  
	
  13.

  	
  Order of Precedence

  	
   

  	
   

  
	
  14.

  	
  Amendments

  	
   

  	
   

  
	
  15.

  	
  Assignment Restriction

  	
   

  	
   

  
	
  16.

  	
  Communications

  	
   

  	
   

  
	
  17.

  	
  Headings

  	
   

  	
   

  
	
  18.

  	
  Severability

  	
   

  	
   

  
	
  19.

  	
  Waivers

  	
   

  	
   

  
	
  20.

  	
  Disputes

  	
   

  	
   

  
	
  21.

  	
  Effective Date of Contract

  	
   

  	
   

  



 


 


2

















 


1.             Preamble


 


R&S is looking for *****.  *****. In addition, R&S wants to
complete R&S’ product portfolio with *****.  .


Acrodyne is looking for *****. Acrodyne estimates R&S is ***** as
R&S brings *****. *****.


 


The focus of this cooperation is the launching of DTV in the US and the
continued support of the US analog television transmitter market.


 


 


2.             Subject


 


The first goal of the cooperation is to serve the
demand of the US broadcast transmitter operators for the new up coming
requirements for digital terrestrial television (DTV) transmitters, as well as
the existing requirements for analog television transmitters.


 


Additionally, for markets using the same digital TV
standard used in the US (ATSC) Acrodyne shall advise R&S of the most
beneficial marketing and sales strategy.


 


The target result of this cooperation is to *****, and to *****.


 


 


3.             Product Portfolio


 


The markets will require TV transmitters with different technologies,
depending on the transmitter power output required by the end use customer. Due
to today’s strengths of both parties, in different technologies, the following
common portfolio, available within the companies, will be used to serve the
markets:


 


Acrodyne will provide all kinds of high power
television transmitters in the UHF and VHF frequency ranges with *****. These
are expected to serve the market requirements above *****. Acrodyne will also
continue to manufacture and market its translator and low power television
transmitter products *****.


 


Additionally Acrodyne will develop *****. To obtain
a maximum level of synergy and optimize the use of development resources
R&S will


 


 


3

















 


provide Acrodyne with *****. *****. Acrodyne will
incorporate the ***** for these new products from R&S.


 


R&S will provide all types of medium power
television transmitters with *****. These products are expected to serve *****.
If the market requires higher output power in solid state both parties will
mutually agree upon on such products.


 


This common product portfolio will require a joint
effort of both parties exchanging a knowledge of their respective products,
technologies and market requirements, which shall be defined in a separate
agreement within 90 days of this Marketing and Sales Agreement coming into
force.


 


 


4.             Labeling


 


All products of the common product portfolio with
integrated technology of the partner shall be labeled with one company name and
carry a visible indication of the incorporated technology from the other
company (e.g., Acrodyne - R&S inside). 
The labeling may vary depending on the products and markets in Annex L.
Annex L shall be developed within 90 days as of taking effect of this Marketing
and Sales Agreement.


 


 


5.             Market
Specific Customization


 


When products may need modifications to meet
market standards or specific customer requirements, e.g. indication on the
transmitter panels or in documentation, this shall be done by the party holding
the main label of the final product. Of course, support from the original
manufacturer will be mandatory in order to minimize the collective effort.


 


With respect to the requirements of the Federal
Communication Commission Type Certification and Verification requirements to
offer broadcast transmitter products to the US market. Acrodyne will pay the
associated fees in the US and R&S will supply the required test data to
support those filings provided that these data are being accepted from the
certified R&S measurement facilities.


 


 


6.             Production,
Testing, and Commissioning


 


Product parts will generally be produced in the
factories of the original manufacturer with the exception of the specific
customization, mentioned in section 5.


 


The final assembly and test (factory acceptance
testing-FAT, or commissioning on site) will generally be performed by the
company driving the marketing and sales channel (e.g. Acrodyne in the US,
R&S in Europe and elsewhere by mutual consent). Exceptions to


 


 


4

















 


this rule will be mutually agreed upon in writing. Of course, support from the original
manufacturer will not be unreasonably withheld, to minimize the collective
effort.


 


 


7.
            Marketing and Sales Channel


 


Acrodyne will market, *****, the product portfolio mentioned in § 3
Labeling in the US.. In Europe R&S and its marketing and sales channel will
market, *****, the common product portfolio.


 


R&S will support Acrodyne’s marketing and sales channel with one
Product Manager. R&S will also provide product training at Acrodyne’s
offices for its sales, final test and field service personnel on a mutually
agreed upon schedule. Each Party shall bear their cost incurred


 


In all other countries (third countries) generally both parties market
only their own products under their own label. This means that export of the
other Party’s products is subject to the other Party’s approval. The Parties
shall inform each other about market leads for the partner’s products .
However, whenever it makes sense for common activities, out of the common
product portfolio, the sales channels shall cooperate to raise market shares.


 


Acrodyne and R&S will regularly update each
other on market activities and competitive trends and maintain product
forecast, in a mutually agreed upon format, each month.   This forecast is intended to be used by
both parties to control their respective production capacities to meet all
required lead times. Each party acknowledges its obligation to keep the other
party informed of changes in product and component availability, including
those resulting from unusual production demands such as the pending receipt of
a large order.


 


In addition, both parties shall cooperate, subject
to mutual agreement, in providing and/or creating suitable product
documentation, instruction manuals, spare parts lists, product literature, and
cooperative trade publication advertising. All instruction books, drawings and
training manuals are to be furnished in English and be made available in
electronic format so that they may easily be reformatted to be suitable for the
target markets. The parties to this agreement also will support each other’s
sales and marketing efforts at the annual National Association of Broadcaster’s
Convention in Las Vegas and at other trade shows, by mutual agreement.


 


 


8.             After
Sales Service


 


After sales service generally shall be performed by the contractual
partner of the customer.


 


In order to provide high quality after sales
service the selling party will set up and maintain a spare part stock at its facility
according to the market requirements at its own expense and provide well
trained service engineers.


 


 


5

















 


Either Party shall supply their parts/products to
the other Party according to the supplying Party’s General Terms and
Conditions.


 


 


9.             Transfer Prices


 


A description of the standard products manufactured by each partner is
defined in Annex P. Annex P shall be developed within 90 days as of taking
effect of this Marketing and Sales Agreement. Each product carries a transfer
price to the partner as indicated. This Annex P shall be issued every 3 months,
but transfer price increases will occur only with 3 months advanced notice. All
quotations, price lists, orders and invoices between the parties shall be in US
Dollars.


 


Under this agreement, R&S will also *****, on a
non-exclusive basis, for its TV Test and Measurement product lines.


 


 


10.          Duration and Termination


 


This agreement shall come into force after being signed by both
parties. It shall remain valid for a minimum term of *****. If one party wishes
to terminate the agreement, this needs to be stated in writing at least six
months prior to the end of its validity. As regards supply of R&S`
subassemblies the termination period shall be extended to one year. If either
party issues no such letter of termination, the agreement is automatically
prolonged by one year.


 


In the event that Acrodyne in the year ***** should
not have achieved a turnover of ***** related to R&S products in the US,
R&S shall be entitled to terminate the Agreement with 6 months notice. In
the event that Acrodyne has achieved in the year ***** a turnover of at least
***** but less that *****, Acrodyne shall be granted an additional period of
one year (year *****) in order to achieve a turnover of ***** within this year.
Should Acrodyne fail R&S shall be entitled to terminate the Agreement with
6 months notice. Termination under this paragraph shall not extend to
*****.  However during the first *****
Acrodyne shall neither *****.  If the
agreement is terminated, both parties will make available, at then current
prices, spare parts, instruction manuals and technical support for the
transmitters sold by the other partner for as long as a Party manufactures and
makes available to their customers their relevant products.


 


Each partner will supply the other partner with a
list of outstanding prospects, within thirty (30) days, for the common product
portfolio and will make product available, at the conditions agreed upon
(transfer price, etc.) for a period of six (6) months following the termination
of the agreement. Each party is obligated to fill the relevant firm orders.
This shall not apply in favor of the defaulting Party in the event that this
Agreement is terminated for cause.


 


 


6

















 


This Agreement may be terminated for cause upon the
first of the following events to occur:


 


If a Party should assign or transfer to any third party the benefit of
this Agreement;


 


If a Party should commit any breach of any material obligations
hereunder and not cure the breach within a period of 60 days as of the relevant
notice of the other Party;


 


If a Party should change its controlling equity ownership (excluding
Sinclair), or if the power to direct the management or policies of the Party is
transferred from the present owners or from a majority thereof, without the
prior written consent of the other Party;


 


If a Party should go into bankruptcy or liquidation or make any
arrangement or composition with its creditors.


 


—Termination of Supplied Sub Assemblies (see Article 3)


 


There shall be a twelve (12) month notice of
termination for any sub-assemblies which were specifically designed into any
new Acrodyne transmitter. R & S will assist in finding suitable
substitution regarding form, fit and function in the twelve month notice of
termination period.


 


 


GENERAL
PROVISIONS


 


11.          Entirety


 


This Contract constitutes the entire understanding
between the Parties as to the subject-matter hereof, and the rights and
remedies of each Party hereto are exclusively stated herein. Neither of the
Parties undertakes any obligation and responsibility except those stipulated in
this Contract.


 


 


12.          Superseding Effect


 


This Contract shall supersede all prior oral and
written agreements, communications and documents between the Parties hereto
with respect to subject hereof.


 


 


13.          Order of Precedence


 


Annex P of the present Contract shall form an
integral part of the present Contract and shall have equal force. In the event
of any discrepancies between the Annex and any of the Articles of this
Contract, the latter shall prevail.


 


 


7

















 


14.          Amendments


 


All amendments, supplements and alterations to the terms and conditions
of the present Contract shall be made in written form and signed by the
authorized representatives of both Parties (and where necessary the approving
authorities of both Parties) upon agreement reached through consultation. They
shall form integral parts of the present Contract and have the same force as
this Contract itself, except where the context requires, they shall supersede
or modify the relevant Contract provision.


 


The Parties are aware of the fact, that the validity of this Agreement
is subject to its compliance with applicable law, in particular U.S anti-trust
law.


 


 


15.          Assignment
Restriction


 


This Agreement, and the rights and obligations of the Parties shall not
be pledged, mortgaged, assigned, sub-licensed or otherwise transferred or
disposed of, including by operation of law, in whole or in part, by one of the
Parties except as expressly set out in this Agreement, or as consented to in
writing by the other Party.


 


 


16.          Communications


 


All communications between both Parties in the course of implementation
of the present Contract shall be made in English.


 


 


17.          Headings


 


The headings used in this Contract are inserted for convenience of
reference only and are not intended to be a part, or to affect the meaning or
interpretation, of this Contract.


 


 


18.          Severability


 


If any of the terms and conditions of this Contract shall be or become
unenforceable for If any of the terms and conditions of this Contract shall be
or become unenforceable for any cause or reason whatsoever, the ensuing lack of
enforceability shall not affect the other provisions hereof, and in such event
the Parties hereto shall endeavor to substitute forthwith such other
enforceable provision as will most closely correspond to the legal and economic
contents of the said terms and conditions.


 


 


19.          Waivers


 


The failure by either Party to this Contract to exercise or enforce any
rights conferred by this Contract shall not be deemed to be a waiver of any
such right nor operate so as to bar the exercise or enforcement thereof at any
time or times thereafter.


 


 


8

















 


20.          Disputes


 


This Agreement shall be construed in accordance with and governed by
the substantive laws of Switzerland. In addition, the Parties shall comply with
all export control regulations applicable to this Agreement.


 


Any disagreement or dispute that arises in
connection with this Agreement and that the Parties are unable to settle
amicably shall be finally and conclusively settled in accordance with the
Arbitration Rules of the International Chamber of Commerce, Paris, France, then
in effect. The number of arbitrators shall be three (3), unless the Parties
agree upon a single arbitrator. The place of arbitration shall be New York, NY,
United States. The arbitration proceedings shall be conducted in the English
language.


 


Either Party’s right to apply for temporary
injunction at the competent courts shall remain unaffected.


 


The Parties’ liability towards each other - for
whatever reason - shall be limited to the Parties’ existing insurances.
Liability for indirect and/or consequential damages - such as but not limited
to loss of profit or loss of income - shall be expressly excluded.


 


 


21.          Effective Date of Contract


 


The Effective Date of Contract will be no later
then 15 days after signing the contract by both Parties subject to the approval
of Acrodyne’s Board of Directors within these 15 days.


 


 


9

















 


Signatures


Acrodyne Industries, Inc


 


	
  Signature:

  	
  /s/ A. Robert
  Mancuso

  
	
  By:

  	
  A. Robert Mancuso

  
	
  Title:

  	
  President / CEO

  
	
  Date:

  	
  10/7/99

  



 


 


ROHDE & SCHWARZ GmbH & Co. KG


 


	
  Signature:

  	
  /s/ W. D. Oertel

  	
   

  	
  Signature:

  	
  /s/ Vonderma Ben

  
	
  By:

  	
  W. D. Oertel

  	
   

  	
  By:

  	
  Vonderma Ben

  
	
  Title:

  	
  Director Central
  Sales / Int. Marketing

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
  Date:

  	
  10/10/99

  	
   

  	
  Date:

  	
  10/08/99

  



 


 


10

















 


SUPPLEMENTAL
AGREEMENT


 


 


to


 


 


EXCLUSIVE
MARKETING,


SALES
AND SUPPLY AGREEMENT


 


of October 1999


 


 


between


 


ACRODYNE INDUSTRIES INC.


516 Township Lane Road


Blue Bell, PA 19422


 


-hereinafter referred to as “Acrodyne” or “Party” -


 


 


and


 


 


ROHDE & SCHWARZ


GmbH & Co. KG


Mühldorfstr.15


D-81671 München


Germany


 


-hereinafter
referred to as “R&S” or “Party” -


 


 


-both companies jointly hereinafter called the “Parties” -


 


 


1

















 


Background


 


The Parties entered into a certain Exclusive
Marketing, Sales and Supply Agreement (the “Agreement”) on or about October 7
to 10, 1999, and wish to more fully state their intentions and agreement
contained in Section 4 thereof (titled “Labeling”), by supplementing the
Agreement as set forth in this instrument (the “Supplement”). Terms defined in
the Agreement are used in this Supplement with the same meaning.


 


The following is agreed with respect to all products
sold by Acrodyne that incorporate R&S technology (such products being
referred to in this Supplement as the “Products”):


 


 


1.             Indication
of R&S Technology Incorporated in the Products


 


1.1.   Designation
of R&S Technology on the Products


 


The Products shall bear the
designation “Solid State by ROHDE & SCHWARZ”, whereby the words “ROHDE
& SCHWARZ” shall appear in capital letters, the ROHDE & SCHWARZ logo (a
diamond containing the letters “R” and “S” separated by a dual wave line) shall
appear on the left side above such words, and both words and logo shall be in
blue color, all in accordance with the specimen furnished by R&S to
Acrodyne.


 


Such designation shall appear on
any surface of the Product where Acrodyne’s own name or trademark appears.


 


1.2.   Designation
on Other Materials


 


The same designation shall also
appear on the packaging of the Products and in all advertising, promotional and
sales materials as well as in all user manuals or instructions accompanying the
Products, and such materials shall, further, contain the statement, “The ROHDE
& SCHWARZ name and logo are trademarks of ROHDE & SCHWARZ GmbH &
Co. KG, Munich, Germany”.


 


1.3    Further
Consent Required


 


The name or logo of R&S may
not be used by Acrodyne in any other way without the prior written consent of
R&S.


 


 


2.             R&S
Trademark Protection


 


2.1    Trademark
Rights


 


Acrodyne acknowledges and agrees
that the words “ROHDE & SCHWARZ” and the logo described above as well as
any combination thereof are trademarks exclusively owned by R&S, and Acrodyne
agrees not to challenge such marks, whether or not any such mark is registered
as such with the United States Patent and Trademark Office or with any other
trademark office or register in any jurisdiction within or without the United
States.


 


 


2

















 


2.2    No
License


 


No license to use any R&S
trademark is granted to Acrodyne or implied by the Agreement or this
Supplement, except the right (and obligation) to use the marks with respect to
the Products in the manner stated herein.


 


 


2.3    No
Use of Similar Marks


 


Acrodyne further agrees not to
use any mark deceptively similar to any R&S trademark on any product made
or sold by Acrodyne.


 


 


2.4    Infringement
by Third Parties


 


If Acrodyne should become aware
of any act by any third party that may constitute an infringement of any of the
R&S trademarks, Acrodyne shall promptly inform R&S thereof and, at the
request and expense of R&S, reasonably assist R&S in taking appropriate
action to protect the R&S trademarks.


 


In the event that a third party
should raise a claim against R&S due to the infringement of a proprietary
right caused by Acrodyne R&S shall promptly inform Acrodyne thereof and
Acrodyne shall defend and hold harmless R&S against any such claim. R&S
shall at the request and expense of Acrodyne reasonably assist Acrodyne in the
defense.


 


 


3.             Deletion


 


The first word of line 2 of
Article 7 on page 5 (“Labeling”) will be deleted.


 


 


IN WITNESS WHEREOF, the Parties have signed this
Supplement, as permitted by Section 14 of the Agreement, by their respective
duly authorized representatives.


 


 


ACRODYNE INDUSTRIES INC. 


 


 


	
  Signature:

  	
  /s/ Mark
  Polovick

  	
   

  	
  Signature:

  	
  /s/ Stephen
  Blasetti

  
	
  By:

  	
  Mark Polovick

  	
   

  	
  By:

  	
  Stephen Blasetti

  
	
  Title:

  	
  Sales Manager

  	
   

  	
  Title:

  	
  Product Manager

  
	
  Date:

  	
  7/14/00

  	
   

  	
  Date:

  	
  7/14/00

  



 


 


ROHDE & SCHWARZ GmbH & Co. KG


 


 


	
  Signature:

  	
  /s/ Jurgen Nies

  	
   

  	
  Signature:

  	
  /s/ R. Schultz

  
	
  By:

  	
  Jurgen Nies

  	
   

  	
  By:

  	
  R. Schultz

  
	
  Title:

  	
  Director TV

  	
   

  	
  Title:

  	
  Director of Commercial
  Contract Management & Controlling

  
	
  Date:

  	
  7/14/00

  	
   

  	
  Date:

  	
  7/14/00

  



 


 


3