Exhibit
10.1


 


XILINX
MASTER DISTRIBUTOR AGREEMENT


 


THIS XILINX MASTER DISTRIBUTOR AGREEMENT (this “Agreement”) is effective
as of the 27th day of July 2005 (“Effective Date”), by and between
Xilinx, Inc., Xilinx Ireland Unlimited, Xilinx Asia Pacific Pte. Ltd.
(collectively and individually, “Xilinx”), and Avnet, Inc. (“Distributor”).


 


RECITALS


 


Xilinx is engaged in the business of developing, manufacturing and
marketing certain integrated circuits and related products and services;


 


Distributor is engaged in the business of marketing and selling
electronic devices in the Territory (as defined below);


 


Xilinx and Distributor desire to enter into this Agreement for the term
stated in Article 3 in accordance with the terms and conditions set forth
below.


 


AGREEMENT


 


NOW THEREFORE, in view of the Recitals and in consideration of the
obligations and undertakings set forth below, Xilinx and Distributor agree as
follows:


 


1.             DEFINITIONS


 


1.1           “Affiliates” means an entity that controls or is
controlled by a party hereto or is under common control with a party
hereto.  For this purpose, “control”
means that more than fifty percent (50%) of the controlled entity’s shares or
ownership interest representing the right to make decisions for such entity are
owned or controlled, directly or indirectly, by the controlling entity.


 


1.2           “Custom
Product” means Xilinx’s non-standard semiconductor devices such as HardwireTM
and EasyPathTM, engineering samples (marked “ES”), die, and devices
made pursuant to customer specifications, and devices for which there is no
alternative distribution channel.  Custom
Products are excluded from this Agreement unless incorporated by Addendum.


 


1.3           “Guidelines”
mean the policies and procedures that Xilinx posts on its “Sales Partner”
website (under Channel Management) and updates from time to time.


 


1.4           “Price”
means Distributor’s Cost for any Products ordered pursuant to this Agreement as
set forth in price purchase schedules, bulletins, Xilinx quotations, the Price
Book and identified therein as “Distributor Cost.”


 


1.5           “Price
Book” means Xilinx’s periodic publication containing schedules of available
Products, Prices, and Xilinx’s standard terms and conditions for sale of
Products.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 


1





















 


1.6           “Product”
means Xilinx’s standard semiconductor logic devices listed in Xilinx’s Price
Book and as otherwise provided at Xilinx’s discretion.


 


1.7           “Specifications”
mean Xilinx’s technical data sheet published on its website as may be modified
from time to time.


 


1.8           “Territory”
means a geographic location(s) or customer account(s) in which Distributor has
rights to sell Product pursuant to the terms of this Agreement as designated in
Exhibit A, attached hereto and
incorporated herein by reference.


 


1.9           “Xilinx
Designated Location” means Xilinx’s warehouse or the warehouse of any third
party providing warehouse services to Xilinx.


 


2.             APPOINTMENT/TERRITORY


 


Xilinx hereby appoints Distributor and Distributor hereby accepts the
appointment, as the non-exclusive distributor for the sale of Products in the
Territory.  It is the intention of the
parties that the Affiliates of Distributor identified on Exhibit A
shall be bound by the terms of this Agreement.


 


3.             TERM


 


This Agreement shall
continue in force for a period of [* * *]
from the Effective Date (the “Term”) hereof unless terminated earlier pursuant
to the terms hereof, and shall automatically
be renewed thereafter for additional [* * *] periods at all anniversary dates hereof unless this Agreement is
otherwise terminated as elsewhere provided herein.


 


4.             OBLIGATIONS
AND RESERVED RIGHTS OF XILINX


 


4.1           Xilinx
shall keep Distributor informed on a timely basis of changes and innovations in
performance, uses and applications of all Products.


 


4.2           Xilinx
shall provide training opportunities in marketing the Products to personnel
identified by Distributors.  Such
training shall be held through methods and at the times and locations as
mutually agreed by the parties.


 


4.3           Xilinx,
at its expense, shall periodically provide Distributor with reasonably
sufficient quantities of Xilinx’s advertising and promotional materials,
pricing information and technical data related to the Products.


 


4.4           Xilinx
reserves the rights to market, solicit, and make direct and indirect sales of
the Products and Custom Products in the Territory and to appoint other
non-exclusive distributors of the Products and Custom Products in the
Territory.


 


5.             DISTRIBUTOR
GUIDELINES


 


5.1           The
Guidelines are hereby incorporated in this Agreement and made a part
hereof.  Xilinx has the right to amend
the Guidelines without Distributor’s consent if Distributor’s obligations
remain substantially unaffected or such changes are compulsory by law.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the confidentiality
request.  A complete version of this
Exhibit has been filed separately.


 





















 


5.2           Xilinx
shall give notice of amendments by individual e-mail communication and on its
website.


 


5.3           Distributor
can object to an amendment to the Guidelines that does not meet the criteria of
Section 5.1 within a period of four (4) weeks after the notification of the
amendment.  If Distributor does not
object to the amendment within this period, it shall come into effect.


 


5.4           If
Distributor objects to the amendments to the Guidelines, specifying the
provisions objected to and giving reasons in writing within the four-week
period, the dispute will be escalated for resolution during such time the
Guidelines that were in effect prior to such objectionable amendments shall
remain valid for Distributor.


 


5.5           Any
conflict between this Agreement and the Guidelines will be resolved in favor of
the Agreement.


 


6.             DUTIES
OF DISTRIBUTOR


 


6.1           Distributor
shall use its reasonable commercial efforts commensurate with its overall business
to vigorously promote the sale of the Products.


 


6.2           Both
parties mutually agree to take steps to stock Distributor’s inventory of the Products
in [* * *] with the intent of
maintaining [* * *] percent
[* * *] of Distributor’s inventory in those [* * *] from the Effective Date.  Distributor shall be eligible for Xilinx’s
inventory relief program pursuant to Addendum A.


 


6.3           Distributor
shall send to Xilinx by electronic means point of sale, inventory, and end
customer backlog reports, transaction data, and business performance metrics in
the form and in the time frame requested by Xilinx in the Guidelines.


 


6.4           Distributor
agrees to follow Xilinx’s policies stated in the Guidelines with regard to
adhering to GAAP (Generally Accepted Accounting Principles).


 


6.5           If
the Products include semiconductor devices that Distributor or a subcontractor
of Distributor programs as a service to its customer, Distributor shall
indicate to its customer that such Products have been programmed and
Distributor warrants that all programming performed on the Products by
Distributor shall be performed in a workmanlike manner and in accordance with
the instructions and specifications for such programming.  Programming shall be conducted only at
certified locations with the intent of [* * *] from the Effective Date.


 


6.6           Distributor
assumes all responsibility for defects in and damage caused to and/or by such
Products resulting from improper or incomplete programming.


 


6.7           Distributor
shall trace its sales of the Products to customers by sorting and tracking such
sales according to ordering part number (including speed grade designators and packaging
including the number of pins and/or balls). 
In addition, Distributor shall make reasonable commercial efforts to
trace lot code and/or date code within a time frame to be mutually agreed.  Xilinx shall provide this information on
either the Product’s top mark or the box label bar code.  Distributor further agrees to provide Xilinx
with a written report sorting and tracing the Products according to the
criteria designated by Xilinx within twenty-four (24) hours of receipt of
Xilinx’s written request.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *].  The
copy filed herewith omits the information subject to the confidentiality
request.  A complete version of this
Exhibit has been filed separately.


 





















 


6.8           Distributor
shall not seek customers or advertise the Products outside the Territory or
establish any sales office, repair, support or maintenance facilities outside
the Territory without the prior written consent of Xilinx.


 


6.9           Distributor
shall ensure that it does not employ child labor, its employees and contractors
are ensured their individual human rights, that they are advised of the basic
terms and conditions of their employment, that they receive wages that are at
least the legislated minimum, that workers are not subject to unlawful
discrimination and that working conditions are healthy and safe in all
respects.


 


7.             PRICE/PRICE
CHANGE


 


7.1           Prices
are subject to change by Xilinx at any time. 
Price changes shall be effective upon publication and not less than five
(5) days prior written notice to Distributor.


 


7.2           In
the event that Xilinx decreases the Price of any Product, Distributor will be
entitled to an adjustment equal to the difference between the Price paid by
Distributor, net of any prior adjustments granted by Xilinx, 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 reduction. In the event
that Xilinx increases the Price of any Product as a result of error or change
in pricing strategy, Xilinx will notify Distributor of the same, and
Distributor may either (i) accept such increase in Price, whereupon Xilinx be
entitled to an adjustment equal to the difference between the Price paid by
Distributor, net of any prior adjustments granted by Xilinx, and the new
increased Price for the Product multiplied by the quantity of such Product in
Distributor’s inventory on the effective date of the increase or (ii) return all
or a portion of the applicable inventory of Product to Xilinx.  Similar price adjustments will also be made
on all such Products in transit to Distributor on the effective date of such
Price change.


 


7.2.1        Distributor
shall submit to Xilinx, on the later of thirty (30) working days after
receiving notice of such Price change or after the effective date of such Price
change, a Product inventory report as of the effective date of such Price
change and the net dollar value of the Price adjustment.


 


7.2.2        Xilinx
shall be deemed to have verified the Product inventory report and the net
dollar value of the adjustment unless Xilinx contests the same in writing
within thirty (30) days after receiving such report.  Uncontested claims for Price adjustments
shall be applied to Distributor’s account as of the effective date of such
Price change.


 


7.2.3        All
Products shipped on or after the effective date of any price change will be
shipped and invoiced at the price in effect at the time of shipment.


 


7.3           All
monetary transactions between Distributor and Xilinx will take place in US
Dollars.


 


8.             TAXES


 


8.1           Prices are exclusive of all federal, state, municipal or other
government, excise, use, occupational, sales, goods and services, value added
or like taxes or duties now in force or enacted in the future (other than taxes
levied on Xilinx’s income) that Xilinx may be required to collect or pay upon
sale or shipment of the Products (collectively, “Taxes”).


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


8.2           Distributor agrees to pay all Taxes unless Distributor is exempt
therefrom.  If Distributor claims that it
is exempt from Taxes, Distributor will provide Xilinx with an exemption resale
certificate or other appropriate evidence to show that it is exempt from the
relevant Taxes.  In the event Xilinx is
required to pay any Taxes at the time of sale or thereafter, Distributor agrees
to reimburse Xilinx therefor.


 


9.             PAYMENT/SETTLEMENT


 


9.1           Payment
terms for all Products purchased hereunder by Distributor shall be net [* * *]
days from date of invoice; provided, however, Xilinx reserves the right to
require different payment terms based on credit reviews of Distributor from
time to time, including, but not limited to, the execution of a security
agreement as deemed appropriate by Xilinx. 
Further, Xilinx reserves the right to charge interest at the rate of one
percent (1.0%) per month on the outstanding balance of all undisputed invoices
more than [* * *] days past due.


 


9.2           Distributor
shall notify Xilinx in writing if it disputes any invoice or adjustment within
ten (10) days of the date thereof and provide Xilinx with a detailed accounting
of its basis for disputing such invoice or adjustment.  The parties shall use reasonable efforts to
resolve the dispute within forty-five (45) days of the date Xilinx was notified
of the dispute.


 


9.3           All
financial transactions with respect to RMAs (including stock rotations) under
this Agreement shall be settled within [* * *] days.  Distributor agrees not to engage in [* * *]
of any such transactions with Xilinx.


 


9.4           With
respect solely to operations conducted by Distributor in [* * *], Xilinx offers
the Currency Exchange Rate Risk Sharing Program as set forth in Addendum B.


 


10.      WARRANTY
OF TITLE


 


10.1         Xilinx
warrants the title to all Products to be sold to Distributor hereunder and
warrants that such Products are not subject to any security interests, liens or
other encumbrances.


 


10.2         Xilinx
owns all title and interest in and/or has all necessary rights to the Products
which are now or may hereafter be subject to this Agreement and all patents,
trademarks, trade names, copyrights, trade secrets and mask work rights
applicable to the Products.


 


11.      SHIPMENT,
TITLE & RISK OF LOSS


 


11.1         Except
where otherwise agreed in writing, shipping terms shall be FCA (Xilinx Designated Location) (INCOTERMS 2000), and
Distributor shall pay all applicable freight, insurance, duties, and import
charges for delivery of the Product from the Xilinx Designated Location to the
location specified by Distributor. Products shipped to the United States will
be FOB (Xilinx Designated Location) within the
United States. Distributor shall have the right to designate the common carrier
to which Xilinx shall tender the Product at the Xilinx Designated Location,
and, in absence of such specification by Distributor, Xilinx shall select the
carrier in its reasonable discretion.


 


11.2         Title
and risk of loss shall pass to Distributor immediately upon tender of the
Product to the freight forwarder or carrier at the Xilinx Designated Location.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


12.      PURCHASE
ORDERS AND ORDER CHANGES


 


12.1         All
purchases of Products pursuant to this Agreement shall be made by issuance of
Purchase Orders and shall be subject to the terms and conditions of this
Agreement.


 


12.2         Purchase
Orders shall state unit quantities, unit descriptions, applicable prices,
requested delivery dates and shipping instructions.  Distributor shall use commercially reasonable
efforts to provide firm quantity and shipment releases consistent with Xilinx’s
then-current lead times for Products ordered. 
All Purchase Orders are subject to acceptance by Xilinx and Xilinx
reserves the right to refuse any order or requirements of Distributor.


 


12.3         Distributor
may change or cancel orders or reschedule Shipment Dates for any Products
ordered, provided that Distributor notifies Xilinx at least thirty (30) days
prior to the current Shipment Date. “Shipment Date” means the date on which the
Products are to be shipped from the Xilinx Designated Location.  Notwithstanding the above, on an exception
basis, Distributor may cancel erroneous Purchase Orders within five (5) days of
issuance thereof.


 


12.4         Distributor
considers “On-Time-Delivery” to be [* * *] days early, and [* * *] days late.
In cases where the Distributor’s required dock date precedes Xilinx’s most
current acknowledgment, and where Xilinx can improve the shipment response,
Xilinx will ship accordingly without prior notification to Distributor.  In the event Distributor’s customer cancels
an order with Distributor due to Xilinx late delivery, Distributor may cancel
the order at no cost.


 


13.      EXPORT/REEXPORT


 


13.1         Distributor
shall be responsible for obtaining all export and import consents and licenses
in connection with the purchase and resale of the Products under this
Agreement.


 


13.2         Distributor
agrees that without a Bureau of Industry Security (BIS) Export License or a
valid License Exception, it shall not: re-export or release any/all Product,
technology, software, or source code for the software to a company and/or a
national of a country in Country Groups D:1 or E:2 (refer to countries in the
below groups) as amended from time to time by the BIS (see
http://www.bis.doc.gov); export the direct product of the technology or
software to these countries, if such foreign produced direct product is subject
to national security controls as identified on the Commerce Control List; if
the direct product of the technology is a complete plant or any major component
of a plant, export the direct product of the manufacturing plant or major
component thereof to these countries when the foreign produced direct product
is subject to the BIS Rules and Regulations.


 


13.2.1      D:1
Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, China (PRC),
Estonia, Georgia, Kazakhstan, Kyrgyzstan, Laos, Latvia, Lithuania, Macau,
Moldova, Mongolia, Romania, Russia, Tajikstan, Turkmenistan, Ukraine,
Uzbekistan , Vietnam; and


 


13.2.2      E:2
 Cuba, Iran, Libya,  North Korea, Sudan and Syria.


 


13.3         Distributor
further agrees to make reasonable commercial efforts to ensure that Product,
technology, software, or source code supplied hereunder will not be used
directly or indirectly in the design,


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


manufacture or
development of nuclear, chemical or biological weapons, nor used by nuclear
end-users/end-uses.


 


13.4         Distributor
further agrees that, in connection with the resale of Products to local
defense-related companies, that the Distributor will comply with the
Export/Re-export Rules and Regulations administered by the U.S. Department of
Commerce – Bureau of Industry and Security and the terms of Xilinx’s Export
Compliance Agreement Letter to be signed separately.


 


14.      STOCK
ROTATION/RETURN PRIVILEGE


 


14.1         Except
as otherwise indicated in this Section 14, and subject to Xilinx approval,
Distributor may return, freight payable by Distributor and risk of carriage
borne by Distributor, a quantity of Products to Xilinx for credit provided that
(1) the total dollar value of the credit shall not exceed [* * *] percent [* *
*] of the dollars invoiced by Xilinx to Distributor (or such percentage
identified in the Guidelines, if different) computed on a global basis, net of
any adjustment, during a three-month period as mutually agreed by the parties;
(2) the Products to be returned have been in Distributor’s inventory at least
thirty (30) days; (3) Distributor does not have a current backlog of orders
with Xilinx for such Products; (4) the Product has not otherwise been
designated as non-cancelable/non-returnable (NCNR); (5) the Product is in its
original sealed bags (“Original Condition”) (including quantities in smallest
original cartons); and (6) the Product has not been out of Distributor’s
possession or control since receipt from Xilinx at the Xilinx Designated
Location.  Such returns shall be made in
one shipment and within thirty (30) days after the applicable quarter. Once per
year, in a quarter designated by Xilinx, Distributor may return Product that is
not in its original condition but otherwise meets the conditions of (1)-(4) and
(6) of this Section 14.1.


 


14.2         The
credit to be issued in respect of each such Product returned shall be issued by
Xilinx within thirty (30) calendar days after receipt of such Product by Xilinx
and shall be issued in the amount of the actual Price charged net of any prior
adjustments granted by Xilinx to Distributor for such Product.  All Products returned in accordance with this
provision must be in Original Condition, and packaged for returned pursuant to
Xilinx’s then-current specification.


 


14.3         Up
to no more than [* * *] percent [* * *], of the dollars invoiced by Xilinx to
Distributor, once per quarter Distributor may scrap particular Product such as
small quantity returns not requiring an RMA (as defined in Article 16.2),
Products with bent leads and programming errors. Distributor shall not include
as “scrap” any Product that is designated as NCNR (as defined in Article
18.3.2). Distributor must present a certificate of destruction for all scrapped
Product.


 


14.4         Notwithstanding the above, Distributor will retain
all “New Product” for an initial six (6) month period prior to returning any
such “New Product” to Xilinx for credit pursuant to Section 14.1 above. For
purposes of this paragraph, a “New Product” is a Product that is newly
introduced by Xilinx to the market.


 


15.      WARRANTY


 


15.1         Xilinx
warrants the Products in accordance with its standard warranty as set forth in Exhibit B (“Limited Warranty”).
Distributor agrees to use reasonable commercial efforts to provide a copy of
Xilinx’s standard warranty to Distributor’s customers along with every Product
sold.  The warranty period as stated in Exhibit B shall begin to run
with respect to Distributor’s customer upon delivery of the Product to the
customer.  In the absence of a warranty
specific to Custom Product, Xilinx’s standard warranty shall apply.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


15.2         Distributor
shall, at its own cost and expense, indemnify and defend Xilinx against all
claims, damages, and losses if Distributor provides any warranty that exceeds
the scope of Xilinx’s warranty, to such extent that such claims, damages and
losses exceed Xilinx’s liability under its standard warranty.


 


15.3         EACH
PARTY’S LIABILITY UNDER ITS WARRANTY SHALL, TO THE EXTENT PERMITTED BY LAW, BE
LIMITED TO A REFUND OF THE CUSTOMER’S OR END USER’S PURCHASE PRICE.  IN NO EVENT SHALL A PARTY BE LIABLE FOR THE
COST OF PROCUREMENT OF SUBSTITUTE GOODS BY THE CUSTOMER OR END USER OR FOR ANY
SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF WARRANTY.


 


15.4         THE
EXCLUSION OR LIMITATION OF LIABILITY UNDER WARRANTIES GIVEN IN THIS AGREEMENT
INCLUDING THOSE SPECIFIED IN EXHIBIT B
HERETO IS MADE ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW AND, WITHOUT
PREJUDICE TO THE GENERALITY OF THE FOREGOING, NO SUCH PARTY SO EXCLUDING OR
LIMITING ITS LIABILITY EXCLUDES OR LIMITS ITS LIABILITY FOR DEATH OR PERSONAL
INJURY CAUSED BY ITS NEGLIGENCE OR DEFECTIVE PRODUCTS.


 


16.      NON-CONFORMING
PRODUCTS


 


16.1         Notwithstanding
any other provision of this Agreement or of any Exhibit hereto, Distributor may
return for full credit, any and all Products found to be non-conforming with
Xilinx’s standard warranty within the warranty period. If Products are found to
be non-conforming upon initial inspection, such Products must be returned to
Xilinx, freight collect, within ninety (90) days of written notice to Xilinx of
the inspection, but no later than six months after delivery thereof in order to
be eligible for credit.


 


16.2         Any
Product returned as non-conforming must first receive a Return Material
Authorization (RMA) number from Xilinx. 
Once an RMA is received, Product may be shipped to Xilinx either by
Distributor or directly by a customer pursuant to Xilinx’s then-current RMA
policy.  Returned Product must be
packaged pursuant to Xilinx’s then-current specification.


 


17.      PRODUCT
CHANGES AND DISCONTINUATION


 


17.1         Xilinx
reserves the right to change the form fit or function of the Product at any
time.  In the event of product changes,
Xilinx shall issue a Product Change Notification (“PCN”) in accordance with
Xilinx’s then-current policy.


 


17.2         Xilinx
may discontinue the manufacture and/or sale of any Product.  In the event of any such discontinuance,
Xilinx shall issue a Product Discontinuation Notification (“PDN”) in accordance
with its then-current policy. Distributor shall return such Products within
thirty (30) days after the LTB date, and shall receive full credit for all such
Products so returned.  Any such credit
shall be in the amount of the Price paid by Distributor for the discontinued
Products net of any prior adjustments. 
All freight charges shall be paid by Distributor and Distributor shall
package product in accordance with Xilinx’s then-current specification. Any
Product held by Distributor after the LTB date cannot be returned to Xilinx for
any reason except under a bonafide warranty claim.


 


17.3         Xilinx
shall give Distributor at least ninety (90) days advance written notice of
engineering changes or any reclassification of Products that will affect the
form, fit, or function of any Products in Distributor’s inventory.  If these changes or reclassifications, in
Distributor’s sole judgment, will adversely affect the sale


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


of Distributor’s inventory of such Products once the
changes or reclassifications are implemented, then Xilinx shall cooperate with
Distributor to sell such affected inventory. 
If, after the aforementioned efforts (but in no event later than one
hundred twenty (120) days after the first public announcement of such change or
reclassification or the first shipment of the changed or reclassified Product,
whichever occurs first), any of the affected Product still remains in Distributor’s
inventory, Xilinx agrees, at Distributor’s election to (a) replace it with
upgraded Products, or (b) repurchase any or all of the affected inventory at
Distributor’s actual net invoice cost less any prior credits.  Xilinx shall pay all freight charges associated
with return of affected Products to Xilinx and/or shipment of upgraded Products
to Distributor.


 


18.      TERMINATION


 


18.1         This
Agreement may be terminated at any time, without cause, by either party upon
giving the other party at least [* * *] days prior written notice.  Such termination shall be effective on the
date stated in the said notice or, if none stated, [* * *] days after the date
of notice.  Distributor is obligated to
inform customers of the termination of its rights to distribute the Product.


 


18.2         This
Agreement may be terminated immediately for cause by either party in the event
the other party:


 


18.2.1      shall
become insolvent;


 


18.2.2      is
unable to pay its debts as they fall due;


 


18.2.3      ceases
to function as a going concern or to conduct its operations in the normal
course of business;


 


18.2.4      assigns
or transfers, either voluntarily or by operation of law, any or all of its
rights or obligations under this Agreement without having obtained the prior
written consent of the other party;


 


18.2.5      upon
the filing of a petition by or against it under any applicable bankruptcy or
insolvency law, fails to tender to the other party a guarantee of its
obligations under this Agreement by a person, firm or other entity having a net
worth of at least 85% of its own net worth as of the commencement of this
Agreement, such guarantee to be in a form satisfactory to the other party;


 


18.2.6      fails
to perform any of its obligations under this Agreement, including all Exhibits
and the Guidelines, so as to be in default hereunder and fails to cure such
default within thirty (30) days after written notice thereof; or


 


18.2.7      terminates
the Non-Disclosure Agreement attached hereto as Exhibit C.


 


18.3         In
the event either party terminates for its convenience or for any reason other
than those listed in Section 18.2, Xilinx shall repurchase, at Distributor’s
election, any or all unsold Products in Distributor’s inventory or in transit
to Distributor on the effective date of termination, along with any or all
technical and promotional material designed to promote the sale of the
Products. In the event Xilinx terminates for
its convenience or for any reason other than those listed in Section 18.2, or
Distributor terminates for cause, then all freight charges associated with such
repurchase of Products under this Article 18 shall be paid by Xilinx.  In the event Distributor terminates for its
convenience or for any other reason other than those listed in Section 18.2, or
Xilinx terminates for cause, then such freight charges shall be paid by
Distributor.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


18.3.1      Within
ten (10) days of receipt of notice of termination, Distributor shall advise
Xilinx of the inventory it expects to have on hand as of the effective date of
termination and identify what part of such inventory Distributor intends to
return;


 


18.3.2      Any
and all Product that Distributor elects to retain shall be non-cancelable,
non-returnable (“NCNR”) to Xilinx;


 


18.3.3      The
repurchase price for such unsold Products and other material shall be the
actual Price paid by Distributor less any prior credits or adjustments.  All freight charges associated with such
repurchase of Products under this Section 18.3 shall be paid by Distributor and
all Product must be in Original Condition and returned in original cartons or
the equivalent (including quantities in smallest original cartons).


 


18.4         After
any termination of this Agreement Xilinx agrees to sell to Distributor any
Products which Distributor is contractually obligated to furnish to a customer
and which Distributor does not have in its inventory, provided that Distributor
orders such Products within ten (10) days after the effective date of
termination.  Any Product sold to
Distributor under this Section 18.4 is NCNR. 
Additionally, Distributor agrees to provide Xilinx with point of sale
information on all post-termination customer transactions.


 


18.5         In
the event this Agreement is terminated for any reason with outstanding credits
existing in favor of Distributor, Xilinx shall promptly refund cash to
Distributor in the amount of the outstanding credits for affected Products to
Xilinx.


 


18.6         In
the event of a termination for any reason, Distributor agrees to cooperate with
Xilinx in the transfer of customer data and all other things necessary to
ensure a smooth transition and minimize any disruption in the supply of
Products to the customer.


 


19.      CONFIDENTIALITY


 


19.1         The
parties hereto have entered into a separate Non-Disclosure Agreement (the “NDA”),
attached hereto as Exhibit C,
the terms of which shall govern the rights and obligations of the parties with
respect to confidential information disclosed by either party.


 


19.2         Distributor
acknowledges its obligation under the NDA to ensure that all of its employees
having access to information in connection with the Product shall be bound by
confidentiality obligations that protect from unauthorized disclosure the
confidential and/or proprietary information of Xilinx and its customers with at
least the same degree of care that Distributor gives to its own confidential
information, but no less than reasonable care. 
Distributor further agrees to indemnify Xilinx and its customers
(collectively the “Indemnitees”) for any and all losses, whether tangible or
intangible and without regard to the nature thereof, that are incurred by the
Indemnitees as a result of a breach by any of its employees of its
confidentiality obligations under the NDA.


 


20.      INTELLECTUAL
PROPERTY INDEMNIFICATION


 


20.1         Except
as stated herein, Xilinx agrees, at its own expense, to defend, hold harmless,
and indemnify against claims, demands, or proceedings before a court of
competent jurisdiction (collectively “Claims”) instituted against Distributor,
its successors and assigns, (“Indemnitees”) from all loss, damages, costs and
expenses (including reasonable attorney’s fees and costs of establishing rights
to indemnification) which may be


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


incurred by an Indemnitee based on an alleged infringe­ment
by Product of valid patents, copyrights or mask work rights of third parties,
or any alleged disclosure or misuse by Xilinx of trade secrets of a third party
in connection with the design or production of Product.  The Indemnitees agree to permit Xilinx
through its counsel to defend or settle the same, in its sole discretion, and
give Xilinx all necessary information, assistance and authority required
thereby.  If, as a result of a Claim,
Distributor is enjoined from selling of a Product purchased from Xilinx, Xilinx
shall, at its election, (i) secure for Distributor the right to sell the
Product, (ii) provide Distributor with replacement Product that is
non-infringing, or (iii) if Xilinx cannot secure such rights or provide such
replacement Product on commercially reasonable terms, refund to Distributor the
price paid for such Product and discontinue supply of such Product.  THIS SECTION STATES THE
ENTIRE LIABILITY OF XILINX AND THE SOLE AND EXCLUSIVE REMEDY OF DISTRIBUTOR
WITH RESPECT TO CLAIMS RELATING TO THE PRODUCTS.  EXCEPT AS EXPRESSLY STATED IN THIS SECTION,
ALL WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS,
STATUTORY, EXPRESS, OR IMPLIED ARE HEREBY EXPRESSLY DISCLAIMED.


 


20.2         Exclusions;
Infringement Indemnification by Distributor. Xilinx shall not be liable for
any costs or expenses incurred without its prior written authorization, and
shall have no obligation or liability for any Claim arising out of: (i)
modifications to Product made by any party other than Xilinx or modifications
made by Xilinx at the request of Distributor; (ii) the use or incorporation in
Product of any design, technique, or specification furnished by a third party;
(iii) the combination or incorporation of Product, or of cores or elements of a
Product, with any circuitry, software, device, subassembly, system, or
materials not supplied by Xilinx.


 


20.3         Definition:
For purposes of this Article 20, “Product” means Xilinx’s standard
semiconductor logic devices listed in Xilinx’s Price Book, as updated from time
to time.  Product does not include
software, firmware, cores, or EasyPath products.


 


21.      GENERAL
INDEMNIFICATION


 


21.1         Xilinx
and Distributor each agree to indemnify and hold the other harmless from and
against any and all claims, damages and liabilities asserted by any person of
entity resulting directly from any breach by it, or by any of its employees or
agents, of any of its warranties in this Agreement, or from any negligent or
affirmative act or omission of any of its employees or agents.  Such indemnification shall include the
payment of all reasonable attorney’s fees and other costs (including the cost
of establishing rights to indemnification) incurred by the party seeking
indemnification in defending such claims.


 


21.2         Notwithstanding
any other provision of this Agreement or any Exhibit or Appendix hereto, Xilinx
agrees indemnify and hold the Distributor harmless of and from any and all
liabilities, losses, damages (including costs, expenses and attorney’s fees,
and costs of establishing rights to indemnification) resulting from any claim
of Distributor’s customers or any other third party, including employees of
Distributor or Xilinx, for death, personal injury, breach of warranty, or
damage to property arising out of the Products or the use or operation
thereof.  Xilinx, at its sole costs and
expense, agrees to defend any and all claims, actions, suits or proceedings
brought against Distributor in connection therewith, upon notice of the
pendency thereof, and to pay and satisfy any and all judgments, costs, attorney’s
fees, awards or recoveries relating thereto.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


22.      INSURANCE


 


22.1         Distributor shall, at its
own expense, at all times during the Term of this Agreement and after its
termination, provide and maintain in effect those insurance policies together
with any other insurance required by law in any jurisdiction where Distributor
sells the Products under this Agreement. 
Such policies shall be issued by insurance companies authorized to do
business in the jurisdiction where Distributor’s obligations are to be
performed. In no way do these minimum requirements limit the liability assumed
elsewhere in this Agreement. Distributor agrees to provide Xilinx with
Certificates of Insurance and/or name Xilinx as an additional insured upon
request.


 


22.2         Distributor shall provide
workers’ compensation insurance as required by any applicable law or regulation
and, in accordance with the provisions of the laws of the nation, state,
territory or province having jurisdiction over Distributor’s employees. If any
such applicable jurisdiction has a social scheme to provide insurance or
benefits to injured workers, Distributor must be in full compliance with all
laws thereof. Distributor must provide employer’s liability insurance in
amounts not less than the local currency equivalent of one million dollars (US
$1,000,000.00).


 


22.3         Distributor shall carry
public liability or commercial general liability insurance covering all
operations of Distributor arising out of or connected with this Agreement with
limits of not less than ten million dollars ($10,000,000.00) per occurrence.
Such insurance shall also provide, by endorsement or otherwise, for contractual
liability and cross liability and provide a Vendors Broad Form Additional
Insured Endorsement. If “claims made” policies are provided, Distributor shall
maintain such policies for at least one year after the expiration of this
Agreement.


 


22.4         Distributor shall carry
comprehensive business automobile liability insurance, including bodily injury
and property damage for all vehicles used in the performance of Distributor’s
obligations under this Agreement, including but not limited to all owned, hired
(or rented) and non-owned vehicles.  The
limits of liability shall not be less than the local currency equivalent of one
million dollars ($1,000,000.00) combined single limit for each incident, or
whatever is required by local law or statute, whichever is higher. If injury to
third-party passengers of such vehicles is not covered by the above insurance,
then Distributor shall also maintain separate insurance to cover injury to such
passengers.


 


22.5         Distributor agrees to
name Xilinx as an additional insured on any and all general liability insurance
policies it may have in effect from time to time or shall ensure that such
policies contain a generic interest clause.


 


23.      USE
OF TRADEMARKS/TRADENAMES


 


During the term of this Agreement, Distributor is authorized to use
Xilinx’s trademarks, trade names and logos (collectively, the “Marks”) solely
in connection with Distributor’s sale, advertisement and promotion of Products
in the Territory, provided Distributor follows the instructions of Xilinx for
the use thereof. Distributor shall not alter or remove the Marks from any
Products.  Distributor shall cease to use
any of such marks, names or logos within thirty (30) days following the
effective date of termination of this Agreement.  Distributor shall promptly notify Xilinx in
writing of any possible infringement of the Marks or of any claim or allegation
that the Marks infringe the rights of any third party.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


24.      CO-OP
FUNDS


 


The parties shall meet regularly and confer regarding co-operative
advertising efforts, including projects such as promotion, advertising and
training.  All particulars with respect
to such projects shall be by mutual agreement.


 


25.      SOFTWARE


 


Xilinx’s software included in or as Products (for purposes of this Section,
“Software Products”) is distributed pursuant to the terms of an End User
License Agreement, a copy of which is provided as Exhibit D
(the “EULA”). Distributor and its authorized Affiliates are authorized to
distribute the Software Products to customers only in the condition and
packaging in which received.  Distributor
shall take such actions reasonably requested by Xilinx to ensure that all
Software Products are distributed to end users in a fashion that ensures that
they are subject to the EULA, as updated from time to time by Xilinx.  Additionally, when and if Distributor
utilizes a Product that is or incorporates a Software Product, Distributor’s
use shall be subject to the terms of the EULA that accompanies that
software.  In the event of a conflict
between this Agreement and the EULA accompanying the Software Product, the EULA
shall govern.


 


26.      NOTICES


 


26.1         Any
notice or other communication given or made under this Agreement shall be in
writing and may be sent to the relevant party by pre-paid registered post,
reputable over-night courier, or fax. 
Notice will be effective if addressed pursuant to Section 26.3
notwithstanding any change of address or telefax number if the party has failed
to provide notice of such change.


 


26.2         Unless
the contrary is proved, each such notice or communication will be deemed to
have been made if by post fourteen (14) days after posting, if by overnight courier
three (3) days after dispatch or, if by fax, upon transmission, subject to the
correct code or telefax number being received on the transmission report.


 


26.3         Notices
shall be served to the parties as follows:


 


26.3.1      For
Xilinx, notices shall be served to Xilinx at the addresses provided on Exhibit A, or as otherwise notified, and to the
General Counsel, Xilinx, Inc., 2100 Logic Drive, San Jose, CA 95124; fax: (408)
377-6137


 


26.3.2      For
Distributor, notices shall be served to Distributor at the address provided on Exhibit A, or as otherwise notified,
and to: Associate General Counsel, Avnet, Inc., 2211 S. 47th Street,
Phoenix, AZ 85034; fax (480) 643-7667.


 


27.      AUDIT
RIGHTS


 


27.1         All
records prepared by or for Distributor in connection with this Agreement shall
be preserved for a minimum of three (3) years from generation, or such longer
periods as Xilinx may specify in writing. 
Such obligation to maintain, make available and preserve records shall
survive the termination of this Agreement.


 


27.2         Annually,
or as necessary, and based on ten (10) business days working notice, Xilinx
shall have the right, at its sole expense, except as otherwise provided herein,
by itself and through representatives reasonably acceptable to Distributor, to
examine and to audit:


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


27.2.1      all
records and accounts containing transaction data for Xilinx’s Products and
marketing programs;


 


27.2.2      Distributor’s
systems, processes and internal controls; and


 


27.2.3      Distributor’s
inventory tracking and management systems.


 


27.3         Claims
resulting from an audit, in favor of either party, shall be limited to
transactions occurring in the three (3) years immediately preceding the
audit.   If this Agreement is terminated
for cause based on Distributor’s default, Distributor shall pay for the
reasonable costs of such audit.  Xilinx’s
right to audit shall survive the termination of this Agreement.


 


28.      GENERAL


 


28.1         Independent
Contractors.  It is understood and
agreed that Xilinx and Distributor are independent contractors and each is
engaged in the operation of its own business and neither will be considered the
agent of the other for any purpose whatsoever. 
Nothing contained in this Agreement will be construed to establish a
relationship that would allow either party to make representations or
warranties on behalf of the other or to bind the other except as expressly set
forth herein.


 


28.2         No
Assignment.  This Agreement may not
be assigned in whole or in part by either party without the prior written
consent of the other which shall not be unreasonably withheld.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and permitted
assigns.


 


28.3         Compliance
with Local Law. Distributor, in all of its activities, shall obey national
and regional statutory requirements in the countries in which it operates.  Should any of the requirements stated in this
Agreement or the Guidelines be in violation of the law in any country or territory,
the local law should always take precedence. 
In such case, however, Distributor shall notify Xilinx of the inability
to comply.


 


28.4         Entire
Agreement.  This Agreement, the
Exhibits (including the NDA) attached hereto, and any Addendum and
Participation Agreements constitute the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements
relating thereto, written or oral, between the parties.  Amendments to this Agreement must be in
writing, signed by the duly authorized officers of the parties, specifically
stating that such amendments are made pursuant to this Section 28.4.


 


28.5         No
Implied Waivers.  The failure of
either party at any time to require performance by the other of any provision
hereof shall not affect the right of such party to require performance at any
time thereafter, nor shall the waiver of either party of a breach of any
provision hereof be taken or held to be a waiver of a provision itself.


 


28.6         Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting
the validity or unenforceability of such provision in any other jurisdiction.


 


28.7         Survivorship.  All obligations and duties hereunder which
shall by their nature extend beyond the expiration or termination of this
Agreement, shall survive and remain in effect beyond any expiration or termination
hereof.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


28.8         Force
Majeure.  Neither party shall be
liable for failure to fulfil its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, acts of
terrorism, war, acts or omissions of the other party, man-made or natural
disasters, material shortages, strikes, delays in transportation or inability
to obtain labour or materials through its regular sources.  The time for performance of any such
obligation shall be extended for the time period lost by reason of the delay.


 


28.9         Conflicting
Terms.  The parties agree that the
terms and conditions of this Agreement shall prevail, notwithstanding contrary
or additional terms, in any purchase order, sales acknowledgement,
confirmation, invoice, or any other document issued by either party effecting
the purchase and/or sale of Products.


 


28.10       Consents
and Approvals.  Any consents or
approvals required hereunder shall not be unreasonably withheld.


 


28.11       Headings.  The Table of Contents, if any, and headings
of paragraphs herein are inserted for convenience of reference only and shall
be ignored in the construction or interpretation hereof.


 


28.12       Governing
Law and Jurisdiction.  The parties
hereto agree that this Agreement shall be governed by, and construed and
interpreted in accordance with the law of State of California (except its
choice of law rules).


 


28.13       Exhibits.  The following Exhibits shall be incorporated
in this Agreement by reference herein.


 


Exhibit A:  Parties,
Affiliates and Territories


Exhibit B:  Limited Warranty


Exhibit C:  Mutual Nondisclosure Agreement


Exhibit D:  End User License Agreement


 


28.14       Counterparts.  This Agreement may be signed in duplicate
originals, or in separate counterparts, which are effective as if the parties
signed a single original.  A facsimile of
an original signature transmitted to the other party is effective as if the
original was sent to the other party.


 


[SIGNATURE PAGE FOLLOWS]


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the date first above set forth.


 


XILINX:


 


	
  XILINX, INC.

  	
  XILINX IRELAND

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Chris Henry

  	
   

  	
  By:

  	
  /s/ Paul McCambridge

  	
   

  
	
   

  	
   

  
	
  Name: Chris Henry

  	
  Name:  Paul
  McCambridge

  
	
   

  	
   

  
	
  Title: Director – Sales Operations

  	
  Title:  Vice
  President & Managing Director

  
	
   

  	
   

  
	
  Date:

  	
  9-26-05

  	
   

  	
  Date:

  	
  9-30-05

  	
   

  
	
   

  	
   

  
	
  XILINX ASIA PACIFIC PTE. LTD.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kris Chellam

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:  Kris Chellam

  	
   

  
	
   

  	
   

  
	
  Title:  Director

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  10/4/05

  	
   

  	
   

  
											



 


 


DISTRIBUTOR:


 


 


	
  By:

  	
  /s/ Harley Feldberg

  	
   

  
	
   

  
	
  Name: Harley Feldberg

  
	
   

  
	
  Title: President, EM Global

  
	
   

  
	
  Date:

  	
  9/15/05

  	
   

  
					



 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


EXHIBIT A


 


PARTIES,
AFFILIATES

AND RELATED TERRITORIES


 


 


XILINX:


 


	
  Xilinx, Inc., a Delaware corporation

  2100 Logic Drive

  San Jose, CA 95124

  USA

  	
   

  	
  Xilinx Ireland, an Ireland unlimited company

  Logic Drive, City West Business Campus

  Saggart, Dublin, IRELAND

  
	
   

  	
   

  	
   

  
	
  Xilinx Asia Pacific Pte. Ltd., a private
  Singapore company

  1 Temasek Avenue, #27-01

  Millenia Singapore

  Singapore 039192

  	
   

  	
   

  



 


DISTRIBUTOR:


Avnet Inc., 2211 S. 47th Street,
Phoenix, AZ 85034


 


DISTRIBUTOR’S AFFILIATES:


 


 


[Note for Exhibit 10.1 filing:
this Exhibit A is pending completion by Distributor]


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


EXHIBIT B


 


LIMITED WARRANTY


 


This warranty covers Xilinx’s semiconductor devices (“Hardware Products”).  Xilinx expressly excludes from this warranty
engineering samples (ES) of Hardware Product, any customized devices, such as
Xilinx’s HardwireTM and EasyPathTM devices, software, IP
Cores and any services.


 


Xilinx warrants that the Hardware Products, when delivered by Xilinx or
Xilinx’s authorized distributor will be free from defects in material and
workmanship and will substantially conform to Xilinx’s publicly available
specifications in effect at the time of delivery for three (3) years following
date of shipment. Buyer may not return Hardware Product without first obtaining
a customer return material authorization (RMA) number from Xilinx. For any
breach of warranty, Buyer’s exclusive remedy and Xilinx’s sole liability shall
be, at the option of Xilinx, to replace or repair the affected Hardware
Product, or to refund to Buyer the price of the Hardware Product depreciated
over three (3) years on a straight-line basis. 
In no event shall Xilinx be liable for any consequential or incidental
damages or economic loss or loss of profits, business or goodwill. This
warranty excludes Hardware Products that have been subject to abuse, misuse,
mishandling, accident, alteration, neglect, unauthorized repair or
installation, or procured through an unauthorized third party and this warranty
shall not apply in the event of any act, error, neglect or default of the Buyer
or any third party. Xilinx does not warrant that Hardware Products will be free
from design defects or errors known as “errata.” This warranty does not extend
to any implementation by Buyer in an application or environment that is not
contained within Xilinx’s specifications or to the implementation itself.  Xilinx’s Hardware Products are not designed
to be fail-safe and are not warranted for use as the principal mechanism in
life-support applications or other applications that invoke potential risks of
death, personal injury or severe property or environmental damage (“Critical
Applications”).  Use of Xilinx’s Hardware
Products in such Critical Applications is fully at the risk of Buyer. THE
WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE. 
XILINX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. In the absence of such written agreement, all such items are sold “as
is” without warranty of any kind. 


 


THE
EXCLUSION OR LIMITATION OF LIABILITY UNDER WARRANTIES GIVEN HEREIN IS MADE ONLY
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND, WITHOUT PREJUDICE TO THE
GENERALITY OF THE FOREGOING, NO SUCH PARTY SO EXCLUDING OR LIMITING ITS
LIABILITY EXCLUDES OR LIMITS ITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED
BY ITS NEGLIGENCE OR DEFECTIVE PRODUCTS.


 


This warranty is the only warranty made by Xilinx with respect to the
Hardware Products delivered hereunder, and may be modified or amended only by a
written instrument signed by a duly authorized officer of Xilinx and accepted
by Buyer.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


EXHIBIT C


 


MUTUAL CONFIDENTIAL INFORMATION


NON-DISCLOSURE AGREEMENT


 


	
  “DISTRIBUTOR”: Avnet, Inc., a
  company formed under the laws of the State of New York

  	
   

  	
  “XILINX”: XILINX, INC. a
  company formed under the laws of the State of Delaware

  
	
  2211 S. 47th

  Phoenix, AZ 85034

  USA

  	
   

  	
  2100 Logic Drive

  San Jose, California 95124

  USA

  
	
  CONTACT: Steve Larson,
  Director Corp. Contracts

  	
   

  	
  CONTACT: Chris Henry

  
	
  PHONE: (480) 643-7211

  	
   

  	
  PHONE: 408-879-7138

  
	
  FAX: (480) 643-7667

  	
   

  	
  FAX:408-879-4876

  
	
  E-MAIL: steven.larson@avnet.com

  	
   

  	
  E-MAIL: chris.henry@xilinx.com

  



 


This Mutual
Confidential Information Non-Disclosure Agreement (“Agreement”) between Xilinx
and the Distributor identified above is made effective as of the last date
executed by a party hereto (the “Effective Date”).


 


RECITALS


 


Xilinx is engaged in the business of developing,
manufacturing and marketing certain integrated circuits and related products
and services.


 


Distributor is engaged in the business of marketing
and selling electronic devices.


 


Xilinx and Distributor have entered into a
distribution agreement (the “Distribution Agreement”).  The parties recognize that during the course
of the distribution relationship there shall be certain confidential
information disclosed by each in connection with fulfilling the obligations as
set forth in the Distribution Agreement (the “Purpose”).


 


Xilinx and Distributor desire to enter into this
Agreement to provide protection for confidential information disclosed in
connection with the Distribution Agreement.


 


NOW THEREFORE, in view of the Recitals and in
consideration of the obligations and undertakings set forth below, Xilinx and
Distributor agree as follows:


 


1.             Confidential
Information.  “Confidential
Information” shall mean  technical data
sheets and specifications, product marketing roadmaps, and business and
financial information and all other confidential and proprietary information of
Xilinx, its customers, and Distributor all of which must be clearly identified
by stamp or legend by the disclosing party as being proprietary or confidential
(Confidential Information that is disclosed orally or visually shall be
confirmed as confidential or proprietary in writing within ten (10) days after
such disclosure) that does not fall under one of the exceptions of Paragraph 4
below and that is disclosed by one party (“Disclosing Party”) to the other
party (“Receiving Party”).


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


2.             Use.
Each Receiving Party agrees that it will use the Confidential Information
disclosed to it solely for the Purpose set forth above.


 


3.             Duty
of Non Disclosure. Xilinx and Distributor each agree to hold the other’s
Confidential Information in confidence for the term of this Agreement and for a
period of three (3) years after the termination or expiration of this
Agreement, using the same degree of care each uses for its own Confidential
Information (but not less than reasonable care), and not to knowingly disclose
such Confidential Information to any third parties except its employees, consultants
and Affiliated Companies, and employees and consultants of Affiliated Companies
that a) have a need to know the Confidential Information disclosed hereunder
for furtherance of the Purpose and b) are subject to confidentiality
obligations no less restrictive than those set forth herein.  As used herein, an “Affiliated Company” means
an entity which: (i) controls or is controlled by a party hereto or (ii) is
under common control with a party hereto. 
For this purpose, “control” means that more than fifty percent (50%) of
the controlled entity’s shares or ownership interest representing the right to
make decisions for such entity are owned or controlled, directly or indirectly,
by the controlling entity.


 


4.             Exceptions.  The obligations of confidentiality under this
Agreement shall not apply to information designated as Confidential Information
which (a) is already known to the Receiving Party at the time of disclosure
without obligation of confidentiality, (b) is or becomes publicly known through
no wrongful act of the Receiving Party; (c) is rightfully received by the
Receiving Party from a third party without restriction on disclosure and
without breach of this Agreement; (d) is approved for release by written
authorization of the Disclosing Party; (e) was developed by the Receiving Party
independently and without the use or benefit of any of the Confidential
Information; or (f) is required to be disclosed by the Receiving Party pursuant
to any order or requirement of a court, administrative agency, or any other
governmental agency, provided that the Receiving Party shall give the
Disclosing Party prompt written notice of such order or requirement and an
opportunity to contest or seek an appropriate protective order.


 


5.             Limited
rights. No license is granted by the Disclosing Party to the Receiving
Party under any copyright, patent, mask work right, trade secret, or trademark
owned by or licensed to the Disclosing Party. 
Any use other than for the Purpose by the Receiving Party of any
Confidential Information furnished by the Disclosing Party, may subject the
Receiving Party to any rights and remedies available to the Disclosing Party
under the copyright, patent, mask work, trademark and trade secret laws in
effect at that time.


 


6.             No
Warranty.  Disclosure of Confidential
Information hereunder to the Receiving Party is done on an “AS IS” basis. None
of the Confidential Information disclosed shall constitute any representation,
warranty, assurance, guarantee or inducement by the Disclosing Party to the Receiving
Party with respect to the accuracy or performance of the Confidential
Information or to the infringement of trademarks, patents, copyrights, or other
third party rights.


 


7.             Current
and Future Development.  The
Disclosing Party understands that the Receiving Party may currently or in the
future be developing information internally, or receiving information from
other parties that may be similar to Disclosing Party’s information.  Accordingly, nothing in this Agreement will
be construed as a representation or inference that Receiving Party will not
develop products or have products developed for it, that without violation of
this Agreement, compete with the products, systems or services contemplated by
Disclosing Party’s Confidential Information.


 


8.             Injunctive
Relief.  The parties acknowledge and
agree that any breach or threatened breach of this Agreement by the Receiving
Party could cause harm to the Disclosing Party for which money damages may


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete version
of this Exhibit has been filed separately.


 





















 


not
provide an adequate remedy.  The parties
agree that in the event of such a breach or threatened breach of this
Agreement, the Disclosing Party may seek temporary and permanent injunctive
relief restraining the Receiving Party from disclosing or using, in whole or in
part, any Confidential Information.


 


9.             Return
of Confidential Information.  Upon
the written request of the Disclosing Party, the Receiving Party shall promptly
a) return to the Disclosing Party all plans, drawings, and other tangible items
of Confidential Information furnished by the Disclosing Party and all copies
thereof and notes therefrom, or, at the Disclosing Party’s option, b) certify
in writing to the Disclosing Party that all such Confidential Information,
including all copies and notes, has been destroyed.


 


10.           Entire
Agreement. This Agreement constitutes the entire agreement between the
parties hereto relating to the subject matter hereof.  This Agreement supersedes and repeals all
previous negotiations, representations or understandings between the parties
relating to the subject matter hereof and may not be modified or amended in any
respect except in a writing signed by each party.


 


11.           Communications
between the Parties. For purposes of this Agreement, the persons named
above as the “Contact” for each party shall be such party’s principal contact
for all communications concerning the subject matter of this Agreement.  Each party agrees to provide the other party
with written notice if these contacts change. 
Copies of all legal notices shall be directed to each party’s Legal
Department.  Any notice or other
communication to be given hereunder must be in writing and shall be deemed
given and effective upon receipt, or if receipt is frustrated by the recipient,
upon tender to the recipient.


 


12.           Governing
Law.  This Agreement and its
performance shall be governed by, subject to, and construed in accordance with
the laws of the State of California (except its choice of law rules).


 


13.           Export
Restrictions.  Each party shall adhere to all applicable
export laws and regulations, including those administered by the U.S.
Department of Commerce (U.S. Export Administration Regulations 15 CFR 730 et seq.), and shall not export, reexport,
resell, transfer, or disclose, directly or indirectly, any technical data or products
received from the other, or the direct product of such technical data or
products, to any proscribed person, entity, or country, or foreign national
thereof, unless properly authorized by the U.S. government.


 


14.           Termination
of this Agreement.  Unless extended
by the parties in writing, this Agreement shall be co-terminus with the Xilinx
Master Distributor Agreement to which this Agreement is attached.  Either party may terminate this Agreement
before that date by providing fifteen (15) calendar days written notice to the
other party.  No termination shall affect
either party’s obligations and rights herein with respect to information
disclosed prior to termination.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


15.           Counterparts.
This Agreement may be signed in duplicate originals, or in separate
counterparts, which are effective as if the parties signed a single
original.  A facsimile of an original
signature transmitted to the other party is effective as if the original was sent
to the other party.


 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their duly authorized representatives and to be
effective on and as of the Effective Date.


 


	
  DISTRIBUTOR:

  	
  XILINX, INC.:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Harley Feldberg

  	
   

  	
  By:

  	
   

  	
  Christopher A. Henry

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Harley Feldberg

  	
   

  	
   

  	
   

  	
  Christopher A. Henry

  	
   

  
	
   

  	
   

  	
  (Print Name)

  	
   

  	
  (Print Name)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  President, EM Global

  	
   

  	
  Title:

  	
   

  	
  Sr. Director, Sales Operations

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  September 15, 2005

  	
   

  	
  Date:

  	
   

  	
  9-26-05

  	
   

  
														



 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


EXHIBIT D


 


END USER LICENSE AGREEMENT


 


END USER LICENSE AGREEMENT BEFORE USING THIS
SOFTWARE, CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.  BY INSTALLING, COPYING OR USING THE SOFTWARE,
YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT
AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL, COPY OR USE, THE
SOFTWARE.  IF YOU HAVE ALREADY PURCHASED
THE SOFTWARE, PROMPTLY RETURN IT TO THE PLACE WHERE YOU OBTAINED IT AND YOUR
MONEY WILL BE REFUNDED.


 


1.             License.  XILINX, Inc. (“XILINX”) hereby grants you a
nonexclusive license to use the software and related documentation (“Software”)
solely for your use in developing designs for XILINX Programmable Logic
devices.  You may not use the Software,
its products, or outputs, to program or develop designs for non-XILINX devices
or products.  XILINX and its licensors
own and retain title to the Software and to any patents, copyrights, trade
secrets and other intellectual property rights therein. Except as expressly
provided herein, no right, title or other interest in or to the Software is
transferred.


 


2.             Registration and
Transfer.  Each licensed user must
register with XILINX, and the Software may be used solely by such licensed
user, provided that any licensed user may install a copy of the Software on
multiple computers, none of which will be used simultaneously by such user. You
may transfer the Software, including any backup copy of the Software you may
have made, the related documentation, and a copy of this License to another
user only with XILINX’s consent (which shall not be unreasonably withheld), and
provided (i) the subsequent user reads and agrees to accept the terms and
conditions of this License and registers with XILINX, and (ii) you retain no
copies of the Software yourself.


 


3.             Restrictions.  The Software contains copyrighted material,
trade secrets and other proprietary information. You may not decompile, reverse
engineer, disassemble, or otherwise reduce the Software to human-perceivable
form. You may not modify or prepare derivative works of the Software. You may
not publish or disclose the results of any benchmarking of the Software or use
such results for your own competing development activities without the prior
written permission of XILINX.


 


4.             Term and
Termination.  You may terminate this
License at any time by destroying the Software and all copies thereof.  XILINX
may terminate this License by written notice if you are in material breach of
any of its obligations and fail to cure such breach within 30 days after
receipt of written notice of such breach. Upon termination, you must
destroy the Software and all copies thereof.


 


5.             Governmental Use.
The Software is commercial computer software developed exclusively at XILINX’s
expense.  Accordingly, pursuant to the
Federal Acquisition Regulations (FAR) Section 12.212 and Defense FAR Supplement
Section 227.2702, use, duplication and disclosure of the Software by or for the
Government is subject to the restrictions set forth in this License.


 


6.             Export Restriction.  You agree not to export or reexport the
Software in any form without the appropriate government licenses.


 


7.             Third Party
Beneficiary.  You understand that
portions of the Software and related documentation have been licensed to XILINX
from third parties and that such third parties are intended third party
beneficiaries of the provisions of this License.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 


D-1





















 


8.             Limited Warranty
and Disclaimer.  XILINX warrants
that, for a period of ninety (90) days from the date of delivery to you of the
software as evidenced by a copy of your receipt, the media on which the
Software is furnished will, under normal use, be free from defects in material
and workmanship.  Subject to applicable
laws:  (1) XILINX’s and its licensors’
entire liability to you and your exclusive remedy under this warranty will be
for XILINX, at its option, after return of the defective Software media, to
either replace such media or to refund the purchase price paid therefore and
terminate this License;  (2) EXCEPT FOR
THE ABOVE EXPRESS LIMITED WARRANTY, THE SOFTWARE IS PROVIDED TO YOU “AS IS”;
(3) XILINX AND ITS LICENSORS MAKE AND YOU RECEIVE NO OTHER WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND XILINX AND ITS
LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGE-MENT, OR FITNESS FOR A PARTICULAR PURPOSE.  XILINX does not warrant that the functions
contained in the Software will meet your requirements, or that the operation of
the Software will be uninterrupted or error free, or that the defects in the
Software will be corrected.  Furthermore,
XILINX does not warrant or make any representations regarding use or the
results of the use of the Software in terms of correctness, accuracy, reliability
or otherwise.


 


9.             LIMITATION OF
LIABILITY.  SUBJECT TO APPLICABLE
LAWS:  (1) IN NO EVENT WILL XILINX OR ITS
LICENSORS BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
INDIRECT DAMAGES ARISING FROM THE USE OR OPERATION OF THE SOFTWARE OR
ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY; (2)
THIS LIMITATION WILL APPLY EVEN IF XILINX HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE; (3) THIS LIMITATION SHALL APPLY NOTWITHSTANDING THE FAILURE OF
THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN.  THE LIMITATIONS OF REMEDIES AND DAMAGES IN
THIS SOFTWARE LICENSE SHALL NOT APPLY TO PERSONAL INJURY (INCLUDING DEATH) TO
ANY PERSON CAUSED BY XILINX’S NEGLIGENCE AND ARE SUBJECT TO THE PROVISION SET
OUT BELOW UNDER THE HEADING “GOVERNING LAW.”


 


10.           Governing Law.  This License shall be governed by the laws of
the State of California, without reference to conflict of laws principles.


 


11.           General.  If for any reason a court of competent
jurisdiction finds any provision of this License, or portion thereof, to be
unenforceable, that provision of the License shall be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the remainder
of this License shall continue in full force and effect.  This License constitutes the entire agreement
between the parties with respect to the use of this Software and related
documentation, and supersedes all prior or contemporaneous understandings or
agreements, written or oral, regarding such subject matter.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 


D-2





















 


ADDENDUM A


 


DISTRIBUTOR INVENTORY RELIEF


 


Xilinx sells Product to Distributor at the Price which is noted in the
Distributor Cost (DC) column per Xilinx’s Price Book.  Due to a variety of factors, variances can
exist between the Price and the Adjusted Distributor Cost (ADC) after
Distributor sells through to an end customer. In order to provide for cash flow
relief to Distributor, Xilinx will provide working capital relief on
Distributor’s inventory up to the days supply goal communicated in Xilinx’s
Guidelines.  Xilinx will implement the
terms of the Distributor Inventory Relief (DIR) Program as follows:


 


DIR will be calculated each month by Xilinx to determine an average
discount factor to apply to ending on hand (EOH) inventory held by Distributor,
limited to the days supply goal.  The
calculation will be as follows:


 


[* * *]


 


Within three weeks of the close of each Xilinx fiscal month, the prior
month’s DIR debit or credit will be reversed and a new debit or credit will be
issued on the same day, and will be payable or available for application toward
Distributor’s payment on thirty (30) day terms.


 


As conditions to the above, the parties agree to the following:


 


The days supply goal shall be [* * *] days commencing [*
* *];


 


Any changes to the days supply goal shall be
reasonably determined by Xilinx upon prior consultation with Distributor;


 


Xilinx will provide Distributor [* * *] written notice
of a change to the days supply goal; and


 


In the event of significant unforeseen circumstances such
as an event of force majeure, the parties will
consult in regard to any necessary adjustments to the DIR program.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.


 





















 


ADDENDUM B


 


Currency Exchange Rate Risk
Sharing Program


 


Xilinx invoices and transacts all debits and credits with Distributor
in U.S. dollars.  To the extent
Distributor’s resale price to the end customer is quoted in local currency
other than the U.S. dollar, Xilinx calculates the Adjusted Distributor Cost
(ADC) in U.S. dollars using the monthly accounting exchange rate in effect on
the quote date (as maintained on Xilinx’s FOX system).  This rate is as quoted on Bank of America’s
web page on the last day of the prior month. 
Quotes with a Suggested Resale Price (SRP) in local currency are
generally effective for a maximum of six months.  Distributor accepts the risk of exchange rate
fluctuations for the duration of each quote. 
In order to partially offset some of this risk, Xilinx and Distributor
agree to the following Currency Exchange Rate Risk Sharing Program.


 


The program will be activated only when the average monthly local
currency / $ exchange rate increases or decreases by more than [* * *] percent [*
* *] compared to the prior quarter’s average rate.  The source for the daily exchange rates used
to calculate both the current month’s average and the prior quarter’s average
will be the Bank of America web page as follows:


 


https://bofacapital.bankofamerica.com/CapitalMarkets/CapitalMarketsOverview.jsp


 


Xilinx and Distributor will share equally the incremental change in the
exchange rate above [* * *] percent [* * *] multiplied by Distributor’s net
cash payments to Xilinx for the current month. 
The debit or credit will be processed within the first payment cycle in
the subsequent month and will be payable or available for application toward
Distributor’s payment on [* * *] day terms.


 


 


XILINX CONFIDENTIAL


Note: Confidential treatment has been requested for the portion of this
Exhibit 10.1 designated with [* * *]. 
The copy filed herewith omits the information subject to the
confidentiality request.  A complete
version of this Exhibit has been filed separately.