**Exhibit 10.3**

 

**CERTAIN INFORMATION (INDICATED BY “[***]”) IN THIS EXHIBIT HASBEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGECOMMISSION.  CONFIDENTIAL TREATMENT HASBEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.**

 

TOSHIBA

Toshiba America Electronic Components, Inc.

2950 Orchard Parkway, San Jose, CA 95131

 

**Design and Production Agreement**

 

**Netlist Inc.**

 

ThisDesign and Production Agreement (“DPA”) effective July 31, 2008 (the “EffectiveDate”) is between Toshiba America Electronic Components, Inc., with aprincipal place of business at 19900 MacArthur Boulevard, Suite 400, Irvine,CA 92612 (“TAEC”) and Netlist Inc with a place of business at 51 Discovery, Suite 150, Irvine,CA 92618 (“Customer”) and sets out the terms and conditions under which TAECwill design the product identified herein for Customer.

** **

**1.****            ****ProjectName**

 

RegisterASIC

** **

**2.****            ****Summary**

 

ThisDPA is for the development of Register ASIC for Customer.  The quote is based on TAEC’s initial die sizeestimation.

** **

**3.****            ****DesignSpecification**

** **

**[***]**

 

**4.****            ****Schedule**

** **

**MAJORPROJECT MILESTONES**

 
| **Event** | ** ** | **Target Date/Completed** |
|-----------|------------|--------------------------------|
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |

 

Productionturnaround time:  **[***]**working weeks

 

----

 

Schedulewill be finalized in the SOW upon Design Decision. See Section 13.5.

** **

**5.****            ****Technology**

** **

**[***]**

** **

**6.****            ****Packageand Die Size Option**

 
| **Package** | ** ** | **Ball Pitch** | ** ** | **Body Size** | ** ** | **Substrate Layers** | ** ** | **Die Size** |
|-------------|------------|---------------------|------------|--------------------|------------|---------------------------|------------|-------------------|
| **[***]**   | ** ** | **[***]**           | ** ** | **[***]**          | ** ** | **[***]**                 | ** ** | **[***]**         |

 

**7.****            ****Internal/ExternalIP**

 

InternalIP:

**[***]**

 

ExternalIP:

None

 

**8.****            ****Price**

 
| First        | ** ** | **[***]** pieces: US$**[***]** |   | ***[***]** |
|--------------|------------|--------------------------------|--------|------------|
| Next         | ** ** | **[***]** pieces: US$**[***]** |   |       |
| Next         | ** ** | **[***]** pieces: US$**[***]** |   |       |
| After  first | ** ** | **[***]** pieces: US$**[***]** |   |       |

 

----

*Pricesfor 01Mpcs represent an addition of US$**[***]**per unitin amortized Total NRE cost.  See Section 10.

 

Changesin die size will affect the price quoted.

 

Pricesdo not include and are subject to any applicable sales tax.

 

**9.****            ****Non-RecurringEngineering Charges (“NRE”)**

 

9.1           Total NRE Charges (not including re-spin charges asset out in Section 9.2): US$**[***]**

 

9.2           Additional NRE Charges in the event of Re-spin

 
| Metal  Layer Re-spin Charges:                       |   | US$**[***]** |
|-----------------------------------------------------|--------|--------------|
| All-Layer  Re-spin Charges (base and metal layers): |   | US$**[***]** |

 

Inthe event a re-spin involving only metal layers is required, TAEC will providea firm quote for additional re-spin NRE charges, which will be calculated on acost per layer basis including required engineering effort. In the event theimplementation of design changes affects all metal layers, including contactand vias, the additional NRE cost will not exceed the Metal Layer Re-spinCharges amount stated above.

 

----

 

Inthe event an all-layer re-spin is required, the All-Layer Re-spin Charges willapply as stated above.

 

Thecharges set forth in this Section 9.2 are based on the assumptions that (1) noMaterial Changes would be needed and (2) no changes whatsoever to thepackage design would be required, whether Material Changes or not. If either ofthese assumptions is incorrect, costs may vary.

 

9.3           Internal IP Defects/Bugs

 

ShouldInternal IP be found to have a Defect/Bug, as defined in the attached SLI Termsand Conditions, TAEC will be responsible for the additional NRE re-spin chargesrequired to repair such Defect/Bug, subject to Section 9.4,

 

9.4           Customer Design ChangesDuring Re-spin for Internal IP Defects/Bugs

 

IfCustomer requests design changes during a re-spin to correct Internal IPDefects/Bugs, a portion of the additional re-spin cost will be shared byCustomer.

 

Fora metal re-spin, this cost will be calculated on the basis of the number oflayers required for Customer changes and whether those layers are implicated bythe Internal IP repairs. If the Customer-requested design changes require thesame metal arid via layers as would be necessary for the Internal IP Defect/Bugfix, the cost to Customer will not exceed 50% of the additional re-spin NREcharges. If the Customer-requested changes require additional mask layerchanges, the NRE cost associated with the additional layers will be solely thefinancial responsibility of Customer.

 

Ifan all-layer re-spin is required in order to fix Internal IP Defects/Bugs, andCustomer requests additional design changes at that time, Customer will not hecharged more than 50% of the All-Layer Re-spin Charges.

 

**10.****         ****NRE Payment Schedule**

 
| **[***]**:       |   | US$**[***]** |
|------------------|--------|--------------|
| **[***]**:       |   | US$**[***]** |
| **[***]**:       |   | US$**[***]** |
| Amortized  NRE:* |   | US$**[***]** |

 

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*  TAEC agrees to charge and Customer agrees topay US$**[***]**in NRE amortized over the first **[***]**production units, at the additional price of US$**[***]** per piece (see Section 8).  In the even t that Customer has not paid thetotal owed sum of US$**[***]**throughthe amortized sales process within **[***]** months ofthe date of **[***]**, then Customer agrees 

 

----

 

topay the entire balance owing upon invoice by TAEC.  For the avoidance of doubt, Amortized NRE isconsidered part of NRE for all purposes including Sections 9 and 10 of theattached SLI Terms and Conditions.

 

·      **[***]**Prototypes are included inNRE.

 

·      A prototype lot charge of $**[***]**is included in the **[***]**payment.Prototype lot charge is subject to any applicable sales tax.

 

**11.****         ****NRE Services included**

 

Engineeringactivities

**[***]**

 

Manufacturingactivities

**[***]***

 

----

*Anyadditional qualifications requested by Customer beyond the standard Toshibaqualification are not covered by the Total NRE Charges and may incur additionalfees.

 

**12.****         ****Extra Engineering Samples**

 
| **[***]**pieces:  | ** ** | **[***]** unit price  of US$**[***]** |
|-------------------|------------|---------------------------------------|
| **[***]** pieces: | ** ** | **[***]** unit price  of US$**[***]** |
| **[***]** pieces: | ** ** | **[***]** unit price  of US$**[***]** |

 

Allextra engineering samples are sold as Prototypes and are subject to, withoutlimitation, Articles 18.2 and 19.1 of the Terms and Conditions.

 

**13.****         ****Project Specific Conditions**

 

13.1         Final package selection to be based on **[***]**.  **[***]**analysis may lead to changes in **[***]**or**[***]**. Details of the **[***]**and **[***]**analysisand the **[***]**need to be defined and mutuallyagreed in the Statement of Work (“SOW”).

 

13.2         Details on the **[***]** to befinalized in the SOW prior to **[***]**.

 

13.3         Customer may order a commercially reasonable numberof **[***]**pieces, as determined by **[***]** in its sole discretion. **[***]**goodsare subject to, without limitation, Articles **[***]**of the attached Design and Production Agreement Terms and Conditions (“Termsand Conditions”). In the event that Customer wishes to order any **[***]**pieces, such order shall be placed no later than thedate of **[***]**.

 

----

 

13.4         For the avoidance of doubt, the Specifications asagreed upon by the parties and incorporated into the SOW shall be based uponthe defined load models provided by Customer.

 

13.5         Upon **[***]**, TAECwill discuss the results of its tests assuring a path delay of **[***]** for the **[***]**providedby Customer (“**[***]**”). On or before **[***]**, Customer agrees to inform TAEC whether Customerintends to proceed with the ID design (“Design Decision”). If Customer choosesto proceed with the design, Customer agrees to accept **[***]**,provide a waiver, or alter its specifications to accommodate such results, andTAEC will **[***]**according to Section 10 ofthis Agreement. If Customer chooses to cancel the design upon completion of the**[***]**, Customer may terminate thisAgreement **[***]**and **[***]**.

 

**14.****         ****General Conditions**

 

14.1         Pricing stated in this DPA is based on ToshibaAmerica Electronic Components Inc. selling production parts directly toCustomer.

 

14.2         Full specifications and responsibilities to bedefined and agreed in a SOW. Customer and TAEC will work in good faith to finalizeand sign the SOW within thirty (30) days of design initiation.

 

14.3         Schedule is provisional. Final schedule is still tobe agreed.

 

14.4         TAEC reserves the right to make extra charges up to **[***]**of the total NRE if Customer submits **[***]** Engineering Change Orders (ECOs) or changes to thelayout constraints file(s) after the acceptance of final netlist, unlessthese ECOs/changes are attributed to problems of TAEC implementing the design.

 

14.5         TAEC may, in its sole discretion, share a copy ofthis DPA, and any applicable SOW with Toshiba Corporation Semiconductor Companyand other Toshiba affiliates, on a need-to-know basis in order to implement orfurther Customer’s project.

 

14.6         TAEC may, upon written notice to Customer, shareCustomer’s information as it pertains to their design kit, library and userdocumentation with a supplier of EDA Tools for the sole purpose of resolvingany debugging issues that may arise during the term of this Agreement.

 

14.7         This DPA shall be governed by the attached Terms andConditions, which are incorporated herein by reference.

 

14.9         In the event of any conflict between the provisionsset forth in this DPA and the Terms and Conditions to which it is attached, thecontents of the DPA shall control.

 

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14.10       This Agreement (as defined in the Terms andConditions) is the entire agreement between the parties and supersedes anyprior communications, representations, or agreements as to the subject matterhereof, whether written or oral.

 

14.11       Any changes to the DPA and/or the Terms andConditions after the execution of the DPA must be mutually agreed upon in theform of a written amendment signed by both parties.

 

 
| **Toshiba  America Electronic Components, Inc.** | ** ** | **NetList  Inc.**                            |
|--------------------------------------------------|------------|----------------------------------------------|
|                                             |       |                                         |
| */s/  Takeshi Iwamoto*                           | * *   | */s/  James P. Perrott*                      |
| Signature                                        |       | Signature                                    |
|                                             |       |                                         |
|                                             |       | James  P. Perrott, SVP Sales & Marketing |
| Takeshi  Iwamoto VP, Customer SoC &          |       | Printed  Name and Title                      |
| Foundry  Business Unit, System LSI               |       |                                         |
| Printed  Name and Title                          |       |  8/15/08                                |
|                                             |       | Date                                         |
| 8/22/08                                          |       |                                         |
| Date                                             |       |                                         |

 

----

 

Toshiba America Electronic Components, Inc.

Design and Production Agreement Terms and Conditions

 

TheseTerms and Conditions set out the terms and conditions under which TAEC will dethese terms are attached.

 

**1.****            ****DEFINITIONS**

 

1.1           “Agreement” shall refer to the agreement comprisingthe DPA (as hereinafter defined), the Terms and Conditions, the SOW, and anyother addenda specifically noted therein (all as defined herein).

 

1.2           “CEM “ means a contract manufacturer engaged byCustomer to purchase Product(s) from TAEC, which are then assembled intoproducts sold to Customer.

 

1.3           “Customer” means the customer identified on Page 1of the DPA.

 

1.4           “Defect/Bug” means a failure of any intellectualproperty to meet the mutually agreed upon chip level and system levelspecifications as provided at the time of development. Such failure ornonconformance includes, but is not limited to, the inability of the logic orinterface portion of either Internal and External IP to meet mutually agreedupon chip level and system level specifications.

 

1.5           “Design Initiation” means Customer has placed andTAEC has accepted a Development PO to proceed with Customer’s design.

 

1.6           “Development PO “ is the purchase order created bythe Customer to signify they have accepted the Specifications and have agreedto proceed with the development of Customer’s design.

 

1.7           “DPA” means the Design And Production Agreement towhich these terms and conditions are attached.

 

1.8           “Effective Date” shall mean the date reflected onthe first page of the DPA, its date of execution notwithstanding.

 

1.9           “External IP” shall mean intellectual propertyacquired from a third party IP provider by TAEC or Customer for use in Customer’sdesign, which is so identified in the SOW and/or in the DPA.

 

1.10         “Internal IP “ means intellectual property ownedand/or provided by TAEC for use in Customer’s design, which is so identified inthe SOW and/or in the DPA.

 

1.11         “Mask Work” means a series of related images,however fixed or encoded; having or representing the predetermined, threedimensional pattern of metallic, insulating or semiconductor material presentor removed from the layers of a semiconductor chip product; and in which seriesthe relation of the images to one another is that each image represents apattern of the surface of one form of the resulting semiconductor chip product.

 

----

 

1.12         “Material Changes” means any changes inCustomer-provided specification or netlist that (1) lead to an increase inblock size or die size of 1% or more; (2) increase the nominal performanceof the block or chip or both by 1 % or more; (3) alter the testingrequirements after the Second Signoff; (4) in the case of I/O limiteddesigns, lead to any increase in pin out; or (5) in the case of non-I/Olimited designs, lead to an increase in pin out of 1 % or more.

 

1.13         “NRE “ means the non-recurring engineering feescharged for specific phases of work as set forth in the DPA.

 

1.14         “Product” means the resulting product based on thedesign specified in the DPA and shall be defined by mutually agreed uponspecifications embodied in the documents contained within the Customer Part NumberFile and TAEC published Quality and Reliability Standards

 

1.15         “Prototype” means pre-production engineering samplesof Products, which have been manufactured before the completion of thePrototype Approval Signoff by both parties. Prototypes are provided forevaluation purposes only. Prototypes may also be called “Engineering Samples”or “KS,” “ES, “ or “HS “ for invoicing or other purposes, but other types ofreference to a Prototype shall not change the status as the Prototype.

 

1.16         “Prototype Approval Signoff” shall mean the formsigned by the Customer when the Prototype meets the required Specification andthe design is suitable for transfer in to production.

 

1.17         “Risk Production” means TAEC’s commencing productionof goods before the completion of the Prototype Approval Signoff by bothparties.

 

1.18         “Second Signoff” means the form signed by bothparties indicating the design is ready for Tape-out.

 

1.19         “SOW “ means the Statement of Work attached to theDPA, or which is executed separately by the parties if not attached thereto.The parties expressly agree that the SOW may be modified from time to time ontheir mutual agreement, and that the project schedule and other records of theTAEC Program Manager shall be the record of the parties’ modifications to theSOW.

 

1.20         “Specifications” means the specifications agreed bythe parties for the Product and Prototype, as applicable and incorporated intothe SOW.

 

1.21         “System Level Verification “ shall mean theperformance of the External IP on the silicon in varying Customer applicationsystems as stated on the third party IP provider specification.

 

1.22         “TAEC “ means Toshiba America Electronic Components, Inc.

 

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1.23         “Tape-out” means TAEC has released final database toJapan to begin the prototype fabrication (mask making and wafer fabrication).

 

1.24         “Terms and Conditions” means these Design andProduction Agreement Terms and Conditions.

 

**2.****            ****DEVELOPMENTWORK**

 

2.1           Details of the development are set forth in the SOW.Design requirements may be changed by mutual written agreement of the Parties;however, Customer understands and agrees that such changes may result inadditional charges.

 

2.2           The development shall be completed when Customernotifies TAEC that the Prototype received by Customer meets the Specifications,when Customer executes the Prototype Approval Signoff.

 

2.3           If the Prototypes do not conform to the agreedspecification and TAEC agrees that the nonconformance is due to TAEC’s error,TAEC will make all commercially-reasonable efforts to expedite delivery ofconforming Prototypes.

 

2.4           If Customer requests any modifications to theSpecifications, TAEC agrees to complete the modification as soon as isreasonably practicable after TAEC has agreed to the modification. For theavoidance of doubt, the parties expressly agree that TAEC shall have noobligation to commence a modification unless and until the parties have agreedon adjustments in schedule, costs, or other applicable provisions.

 

2.5           If TAEC assembles and manufactures any goods atCustomer’s request before Customer has issued its written approval viaPrototype Approval Signoff, Customer understands and agrees that they will bedone on a Risk Production order basis, with Customer responsible for allassembly and production costs.

 

2.6           Products will be tested to the developed testprogram resulting from the simulation database. Changes to the test programafter sample or production initiation may result in production lead-timedelays.

 

2.7           Each delivery of Products shall be initiated byCustomer’s written or electronic notification that a Purchase Order (“PurchaseOrder”) will be forthcoming. Customer shall send a written Purchase Order toTAEC within five (5) working days of the verbal notice. Each PurchaseOrder shall identify the Products ordered; indicate the requested quantity anda mutually agreed upon price; and specify the requested delivery date.

 

2.8           Design initiation shall commence when Customerissues a Purchase Order for the NRE charge. The Purchase Order shall refer tothe applicable DPA, and shall include the words: “This Purchase Orderrepresents acceptance of the terms and conditions in the Design And ProductionAgreement between the issuer and Toshiba America Electronic Components, Inc.”

 

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2.9           TAEC shall supply Products to Customer based onproduction Purchase Orders that support a six (6) month rolling forecast.

 

**3.****            ****DEVELOPMENTTERM**

 

**[***]**

 

**4.****            ****COMPENSATION**

 

4.1           **[***]**

 

4.2           **[***]**

 

4.3           **[***]**

 

**5.****            ****RE-SPINNRE CHARGES**

 

Re-spinNRE charges will be based on engineering and manufacturing services as well ason the extent of the modification, which may be done as either a metallizationor a diffusion change. Metallization changes may be implemented by regeneratingthe metal and via masks only. Diffusion modifications, on the other hand,require the regeneration of all masks. The extent of the engineering andmanufacturing services required for re-design shall be considered indetermining total charges for a re-spin of the design which shall be specifiedin the DPA or an Amendment thereto.

 

**6.****            ****ACKNOWLEDGMENT**

 

6.1           TAEC shall process Customer’s Purchase Orderssubmitted in accordance with Article 2.7 within ten (10) working daysof TAEC’s receipt thereof. Purchase Orders shall only be binding as of the dateof TAEC’s acknowledgment and acceptance thereof.

 

6.2           TAEC shall only accept Purchase Orders withrequested delivery dates no more than six (6) months from the PurchaseOrder date. Any requests for a shipment beyond that six-month period shall bereviewed and acknowledged only after the requested delivery date moves withinthe six (6) month period.

 

**7.****            ****PRODUCTLEADTIME**

 

7.1           Prototypes: TAEC will use all commerciallyreasonable efforts to provide Prototypes within the total turnaround timedefined in the appropriate DPA and expressed as working weeks from Tape-out.

 

7.2           Production: TAEC will use all commerciallyreasonable efforts to provide production lead-time as defined in theappropriate DPA or other document issued by TAEC, from the date of TAEC’sacknowledgment and acceptance of a Purchase Order.

 

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**8.****                                     ****SHIPMENTAND DELIVERY**

 

8.1           Shipments shallbe F.C.A. shipping point. Risk of loss or damage shall pass from TAEC toCustomer upon delivery of the Products to the common carrier for shipment toCustomer; title to all Products released hereunder shall pass to Customer uponfull payment by Customer therefor.

 

8.2           Unlessotherwise specified by Customer, TAEC shall ship Products according to TAEC’sstandard method. Freight and insurance will be prepaid by TAEC and invoiced toCustomer.

 

8.3           TAEC shall notbe liable for any damages or penalties for delay in delivery, or for failure togive notice of delay when such delay is due to an act of Customer or any causebeyond the reasonable control of TAEC, including, but not limited to, thecauses specified in Article 28. FORCE MAJEURE clause herein. For any delayexcusable under Article 28, the delivery date shall be deemed extended forthe duration of the force majeure event.

 

**9.****                                     ****PAYMENTTERMS**

 

9.1           Customer shallpay to TAEC all amounts due hereunder within thirty (30) days of the date ofTAEC’s invoice therefor.

 

9.2           Customer mayhave a third party distributor or other entity (each, a “Designated Payor”) paythe NRE charges on Customer’s behalf subject to the following conditions:

 

a.                                       Customer willso inform TAEC and will give TAEC instructions on to whom and where the NREinvoice(s) should be sent;

 

b.                                      Upon TAEC’srequest, Customer will provide reasonable evidence to TAEC of such DesignatedPayor s agreement to pay the NRE charges;

 

c.                                       Customerremains primarily liable for the payment of the NRE charges, and understandsand agrees that it shall be fully responsible therefor if the Designated Payorfails to pay such charges within thirty (30) days of the date of TAEC’sinvoice; and

 

d.                                      The payment ofthe NRE charges by a Designated Payor shall not affect any of the rights andobligations of the parties hereunder, and such Designated Payor shall not bedeemed a third party beneficiary of this Agreement, nor shall the DesignatedPayor have any rights in or to Products, Prototypes, Mask Works, or any otheritem relating to the subject matter hereof or any right to place or enforce alien against TAEC relating to the subject matter of this Agreement, andCustomer shall indemnify and hold harmless TAEC from any damages or claims TAECmay suffer as a result of Customer’s engagement of a Designated Payor.

 

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9.3           TAEC maywithhold or suspend shipment or other performance hereunder, in whole or inpart, if Customer or its Designated Payor, as applicable, fails to make anypayment in accordance with Article 9.1, or otherwise fails to perform itsobligations under these Terms and Conditions.

 

9.4           TAEC reservesthe right to monitor Customer’s or the Designated Payor’s creditworthinessperiodically during the course of the work. If, in TAEC’s reasonable opinion,Customer’s or the Designated Payor’s, creditworthiness declines, TAEC shall sonotify Customer or the Designated Payor, and as a condition to the performanceof any obligation under this Agreement, TAEC reserves the right in its solediscretion to require Customer or the Designated Payor to provide security forpayment of any amounts due under this Agreement, including, but not limited to,opening an irrevocable letter of credit to support Customer’s paymentobligations hereunder, or such other means as TAEC may determine appropriate.

 

**10.****                              ****CANCELLATION/DELAYOF DEVELOPMENT:**

 

10.1         In the eventthat Customer unilaterally delays a design milestone for longer than **[***]** weeks beyond the schedule specified in the SOW, TAECreserves the right to charge Customer up to a total of **[***]**ofthe Total NRE charge specified in the DPA.

 

10.2         If Customerwishes to discontinue the project after TAEC has accepted the Development POfrom Customer, the Customer or the Designated Payor shall be responsible to payTAEC for the NRE charges as set forth below (“Cancellation Fee”), unlessotherwise agreed in writing between TAEC and the Customer:

 
| **Time**  | ** ** | **Cancellation Fee** |
|-----------|------------|---------------------------|
| **[***]** | ** ** | **[***]**% of NRE         |
| **[***]** | ** ** | **[***]**% of NRE         |
| **[***]** | ** ** | **[***]**% of NRE         |
| **[***]** | ** ** | **[***]**% of NRE         |

 

10.3         In the eventthat Customer unilaterally delays a design milestone for longer than **[***]**beyond the schedule specified in the SOW, TAECreserves the right to deem the design cancelled and assess the Cancellation Feespecified in Section 10.2. In such case, the Agreement will terminate uponpayment of the Cancellation Fee.

 

10.4         For theavoidance of doubt, NRE already invoiced to Customer per the milestones and NREpayment schedule set forth in the DPA (“Paid NRE”) shall offset theCancellation Fee assessed in Sections 10.2 and 10.3 above. To the extent thatthe Paid NRE exceeds the Cancellation Fee as assessed, TAEC shall not charge anadditional Cancellation Fee; however, Paid NRE will not be refunded uponcancellation of the design.

 

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**11.****                              ****CANCELLATION/RESCHEDULEOF PRODUCTION ORDERS**

 

11.1         Requests forcancellation must be made in writing, and the following terms shall applyunless otherwise agreed in writing between TAEC and the Customer. Cancellationfees will be assessed based on the length of time from the date a writtennotice is received by TAEC to the first scheduled shipment date.

 
| **Days from scheduled shipment** | ** ** | **Cancellation Fees** |
|-------------------------------------------------|------------|----------------------------|
| **[***]**days                                   | ** ** | **[***]**                  |
| **[***]** days                                  | ** ** | **[***]**                  |
| **[***]**days                                   | ** ** | **[***]**                  |
| **[***]** days                                  | ** ** | **[***]**                  |

 

11.2         Re-schedulerequests must be made in writing **[***]**daysbefore the original delivery date. Any order may be re-scheduled only once.Requests to delay shipments may not exceed **[***]**days fromthe original committed delivery date. The re-scheduled order may not becanceled or further modified, and Customer will be liable for full payment ofthe selling price.

 
| **Days before Shipment** | ** ** | **Terms** |
|------------------------------------|------------|-----------|
| Within  next **[***]** days        | ** ** | **[***]** |
| Within  **[***]** days             | ** ** | **[***]** |
| Over  **[***]** days               | ** ** | **[***]** |

 

**12.****                              ****INTELLECTUALPROPERTY RIGHTS AND OWNERSHIP**

 

12.1         Customer retainsall right, title and interest in and to all proprietary rights, includingwithout limitation, patent, copyright, trade secrets, mask work rights, in andto: (i) all designs and design features of the Products, and (ii) allpatterns, drawings, and other data concerning the Products’ design featuresincluding, but not limited to, the Products’ database, and (iii) all MaskWork produced by TAEC for the manufacturing of Products.

 

12.2         Notwithstandingthe above provision, TAEC retains all right, title and interest in and to its **[***]**and all **[***]**and other**[***]**rights therein, and anyassociated **[***]**and **[***]**.For the purposes of this Agreement, **[***]**shallmean **[***]**, including, but not limited tothe process control monitor contained in the **[***]**.TAEC reserves the right to perform similar work for its other customers.

 

12.3         Both partiesunderstand that any and all Mask Works produced by TAEC for the manufacturingof the Products contain both parties’ Confidential Information (as hereinafterdefined), and that such Mask Works shall not be used in any manner except asnecessary for the performance of this Agreement.

 

12.4         The party whodesires to assert its Mask Work rights against any third party for infringement(the “Asserting Party”) shall give prior written notice to the other party toallow such other party to decide whether or not to participate in such dispute.If the other party decides not to participate, it shall provide allcommercially reasonable assistance to the Asserting Party in connection withsuch dispute, at the Asserting Party’s expense.

 

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12.5         If an inventionis made solely by the employees of either party in connection with thedevelopment of the Prototype or Products, all right, title, and interest in andto such items shall belong solely to the party whose employees made suchinvention. If an invention is jointly made by the employees of both Customerand TAEC, Customer and TAEC shall jointly own all right, title, and interestthereto. Each party shall be entitled to use and exploit such jointly ownedinvention and intellectual property rights without notice or accounting to theother party.

 

**13.****                              ****MASKWORKS REGISTRATION**

 

13.1         If Customerdesires to register the Mask Work for the Products under the Semiconductor ChipProtection Act of 1984 (the “Act”), Customer shall make registration by itself;however, Customer shall include TAEC’s name in such registration. Customershall have sole responsibility for obtaining registrations for the Mask Work.Upon Customer’s request, TAEC agrees to supply Customer or its designee withany reasonable identifying material required for deposit under the Act in orderto register a Mask Work in the names of Customer and TAEC. All expenses andcharges for registration and upkeep on Mask Work shall be borne by Customer.

 

13.2         Customer shalluse its best efforts to comply with all semiconductor protection laws andapplicable regulations in connection with such application. If possible,Customer shall expressly identify in the “nature of contribution” column of theU.S. mask work registration form (and applicable columns of the applicationform of other countries) that the portion of the Mask Work for the Products andany intellectual property rights including Mask Work related thereto remain thesole and exclusive property of TAEC.

 

13.3         Customer shallfurnish TAEC with a copy of the application form of Mask Work for TAEC’s priorto filing, and shall give TAEC reasonable time and opportunity to suggestchanges and edits.

 

**14.****                              ****MASKWORK NOTICE**

 

Uponwritten request by Customer, and subject to packaging constraints, TAEC willplace a Mask Work notice on the outside package of the Product which shallconsist of the letter M in a circle and the names of Customer and TAEC.

 

**15.****                              ****BUSINESSRELATIONSHIPS**

 

15.1         Except as maybe specifically provided in this Agreement, no right or license eitherexpressed or implied is granted to either party under any patent, patentapplication or any other intellectual property right as a result of this DesignAgreement. The rights and obligations of the parties to these Terms andConditions are limited to those expressly set forth herein.

 

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15.2         This DesignAgreement is not intended to constitute or create a joint venture, partnershipor formal business entity of any kind. Customer and TAEC shall be independentcontractors and neither party shall act as the agent for or partner of theother party without prior written agreement.

 

15.3         Nothing inthese terms and conditions shall give either party the right to use the other’sname, trademark or logo except where specifically authorized in writing by suchother party.

 

15.4         Customerunderstands and agrees that a CEM’s purchases and other information relating toits business relationship with TAEC are confidential information that TAEC maynot disclose without the CEM’s express permission (the “CEM Information”).Consequently, if Customer requests TAEC to provide such CEM Information, TAECshall do so only if:

 

a.                                       Customerprovides to TAEC proof of the CEM’s permission; or

 

b.                                      Customerdefends, indemnifies, and holds TAEC harmless from and against any and allclaims and damages that TAEC may suffer as a result of such disclosure of CEMInformation.

 

**16.****                              ****SUBCONTRACTING**

 

16.1         TAEC maysubcontract all or part of the development of the Products to ToshibaCorporation or one or more of TAEC’s affiliates or subcontractors, providedthat each such subcontracting party agrees in writing to comply with provisionsof these terms and conditions.

 

16.2         Customer maysubcontract all or part of its obligations hereunder with respect to theProducts to one of its affiliates or subcontractors (each, a “Permitted Party”),provided that (a) each such Permitted Party agrees in writing to complywith provisions of these terms and conditions, (b) the Permitted Party isnot a semiconductor competitor to TAEC, and (c) Customer has given TAECpermission to share information with such Permitted Party as may be requiredfor Permitted Party to carry out its duties.

 

**17.****                              ****CONFIDENTIALINFORMATION**

 

17.1         “ConfidentialInformation” as used in this Agreement will mean any and all technical andnon-technical information including patent, copyright, trade secret, andproprietary information, techniques, models, inventions, know-how, processes,apparatus, equipment, algorithms, software programs, and formulae related tothe current, future and proposed products and services of each of the partiesand/or its customers and/or vendors, including, without limitation, informationconcerning product or process research and development, design details andspecifications, engineering, financial data, manufacturing, customer lists,business forecasts, sales and merchandising, and marketing plans.

 

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17.2         The partiesagree that Confidential Information exchanged by them under this Agreementshall be protected by the provisions of the Nondisclosure Agreement (“NDA”)signed between them, and made effective as of                                        , mutatis mutandis.

 

17.3         Notwithstandingthe expiration or termination of the NDA, the provisions of this Article 17shall remain in effect for a period of ten (10) years from the date ofthis Agreement.

 

**18.****                              ****WARRANTY**

 

18.1         Customeracknowledges and agrees that the success of the development of the customproduct contemplated by this Agreement cannot be assured. TAEC gives norepresentation or warranty that it will be successful in developing a designfor such custom product or that the development will progress according to themilestones set forth in the Statement of Work. TAEC will under no circumstancesbe liable for any damages arising from its failure to develop a design for suchcustom product or for failing to meet the milestones set forth in the SOW. Anyexpenditures or commitments by Customer in anticipation of TAEC’s success indeveloping such custom product or meeting the milestones set forth in the SOWwill be at Customer’s sole risk and expense.

 

18.2         PROTOTYPES/RISKPRODUCTION-NO WARRANTY CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY PROTOTYPEAND/OR RISK PRODUCTION GOODS DELIVERED HEREUNDER ARE DELIVERED ON AN “AS IS “BASIS WITH ALL FAULTS AND WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS ORIMPLIED.

 

18.3         PRODUCTWARRANTY

 

a.                                       TAEC warrantsthat:

 

i]                                         for a period ofone (1) year from the date of the delivery of each Product, the Productshall: (a) conform to the Specifications; (b) be free from defects inmaterial or workmanship under normal use and service; and

 

ii]                                      at the time of delivery, theProducts will be free and clear of all liens, encumbrances, and other claimsexcept for TAEC’s reservation of a security interest in the Products prior toreceipt of payment in full therefor.

 

b.                                      TAEC’sresponsibility and the sole and exclusive remedy of Customer under thiswarranty is, at TAEC’s option, to repair, replace, or credit Customer’s accountfor any defective Products which are returned by Customer during the applicablewarranty period set forth above in sub-

 

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Article 18.3a.i],provided that: (a) Customer promptly notifies TAEC in writing with adetailed description of any alleged deficiencies upon discovery by Customerthat such Products fail to conform to the specifications; (b) suchProducts are returned to TAEC, F.C.A. TAEC’s plant; and (c) TAEC’sexamination of such Products establishes to TAEC’s satisfaction that suchalleged deficiencies actually existed and were not caused by Customer’s misuse,neglect, alteration, improper installation, repair, or improper testing of theProduct(s).

 

c.                                       TAEC SHALLWARRANT EXTERNAL IP SOLELY TO THE EXTENT SET FORTH IN THE APPLICABLE SOW. IFTHE SOW IS SILENT ON WARRANTY, VERIFICATION, TESTING OR MAINTENANCE OF THEEXTERNAL IP, CUSTOMER UNDERSTANDS AND AGREES THAT TAEC SHALL NOT WARRANT ANYEXTERNAL IP, EXPRESSLY OR IMPLIEDLY, INCLUDING THE WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

18.4         FOR THEAVOIDANCE OF DOUBT, THE PARTIES EXPRESSLY AGREE THAT THE WARRANTIES SET FORTHIN THIS ARTICLE SHALL NOT APPLY TO (i) ANY EXTERNAL IP, AND (ii) NON-CONFORMANCECAUSED BY (A) IMPROPER USE, INSTALLATION, MISUSE, NEGLECT,MODIFICATION, ALTERATION, REPAIR, OR IMPROPER TESTING OF THE PROTOTYPES ORPRODUCTS BY CUSTOMER OR ANY PARTY; (B) THE PROTOTYPES OR PRODUCTS HAVINGBEEN SUBJECTED TO UNUSUAL PHYSICAL OR ELECTRICAL STRESS; OR (C) INTERFERENCEFROM APPLICATIONS, SOFTWARE, OR OTHER PRODUCTS PROVIDED BY THIRD PARTIES.

 

18.5         EXCEPT AS EXPRESSLYPROVIDED IN THIS ARTICLE, TAEC DISCLAIMS AND CUSTOMER WAIVES ALL OTHERWARRANTIES OR LIABILITIES OF TAEC, EXPRESS, IMPLIED, OR ARISING OUT OFCOMMON LAW OR COURSE OF DEALING, RELATING TO TAEC’s PERFORMANCE HEREUNDER, INCLUDINGBUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR APARTICULAR PURPOSE. THIS WARRANTY IS FOR THE SOLE BENEFIT OF CUSTOMER AND NOTFOR ANY THIRD PARTY.

 

**19.****                              ****PROTOTYPES/RISKPRODUCTION**

 

19.1         Customeracknowledges that any Prototype will be provided for evaluation purposes onlyand not for any other purposes and shall not be offered to any of itscustomers, directly or indirectly, for purposes other than evaluation. Customershall defend, indemnify, and hold TAEC and its affiliates harmless from and againstall damages, obligations, causes of action, suits, or injuries of any kindarising from or in relation to Customer’s use or other disposition of theProducts in violation of this Agreement and/or Customer’s supply of thePrototype to any of its customers.

 

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19.2         Customeracknowledges that Risk Production goods are provided prior to PrototypeApproval Signoff. Customer agrees to defend, indemnify, and hold TAEC and itsaffiliates harmless from and against all damages, obligations, causes ofaction, suits, or injuries of any kind arising from or in relation to Customer’ssupply of the Risk Production goods to any of its customers.

 

**20.****                              ****PRODUCTAPPLICATION**

 

20.1         This design isintended for general commercial applications such as but not limited totelecommunications, information technology equipment, computer equipment,office equipment, test and measurement instrumentation, or domestic appliances.The design is not intended for use in, nor is it intended to be incorporatedinto the Product for use in, nor will TAEC knowingly sell such items for use inequipment which requires extraordinarily high quality or reliability, and/or inequipment which may involve life threatening, life support, life sustaining, orlife critical applications, including, but not limited to such uses as atomicenergy controls, airplane or spaceship instrumentation, traffic signals,biomedical or medical instrumentation, combustion control, offensive weaponsystems, or safety devices.

 

20.2         TAEC DOES NOTACCEPT, AND HEREBY DISCLAIMS, LIABILITY FOR ANY DAMAGES, WHICH MAY ARISEFROM THE USE OF TAEC PRODUCTS USED IN SUCH EQUIPMENT OR APPLICATION AS SETFORTH HEREINABOVE. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD TAEC FREEAND HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, PROCEEDINGS,COSTS, LOSSES, DAMAGES, AND EXPENSES OF EVERY KIND AND NATURE WHATSOEVERARISING OUT OF OR IN CONNECTION WITH USE OF PRODUCTS IN ANY SUCH EQUIPMENT ORAPPLICATION.

 

**21.****                              ****INSPECTION**

 

Customershall inspect Products at its own expense in accordance with the inspectionstandard agreed upon by the parties. Unless Customer provides TAEC with writtennotice of rejection within thirty (30) days after TAEC’s delivery of theProducts to the carrier, together with sufficient evidence of the causethereof, Products shall be deemed finally and irrevocably accepted. If TAECreceives notice of rejection within that thirty (30) days, then TAEC shall, atits option, repair or replace the defective Products or credit Customer’saccount, if TAEC has breached its warranty under Article 18.

 

**22.****                              ****ISSUANCEOF RETURN MATERIAL AUTHORIZATION NUMBER**

 

22.1         All Productswhich Customer returns to TAEC must be accompanied by a Return MaterialAuthorization (RMA) number. Unless further verification is required by TAEC,TAEC shall provide Customer with an RMA number within three (3) working days ofCustomer’s request for return of the nonconforming Product to TAEC.

 

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22.2         If it isdetermined that the failure is electrical, mechanical, or of any other naturerequiring further verification by TAEC, Customer shall return to TAEC an agreedupon number of data-logged samples of the Product lot, whereupon TAEC shallissue a Failure Analysis (FA) number. Customer may, at its option, suspend theprocessing of invoices through Customer’s accounting system for suchnonconforming Product, pending resolution of the investigation. TAEC shallanalyze the samples and report its findings to Customer within thirty (30) daysafter receipt of the samples and shall advise Customer of a schedule to completethe failure analysis and take corrective action.

 

22.3         An RMA shall beissued within three (3) working days following verification of thefailure, if, after testing, the sample has been found to be nonconforming. Uponmutual agreement, TAEC shall replace, repair, or credit the purchase price ofany Product which has been found to be nonconforming. If the returned Productis subsequently determined by Customer and TAEC to be in conformance, Customershall immediately complete payment.

 

22.4         Transportationcharges for Products returned from Customer to TAEC or from TAEC to Customerunder this Article shall be at TAEC’s expense, provided that Customershall reimburse TAEC for any transportation charges paid by TAEC for returnedProducts which are subsequently found to be conforming.

 

**23.****                              ****MATERIALAVAILABILITY**

 

23.1         TAEC shall giveCustomer reasonable advance notice of its intent to discontinue the manufactureof those Products included in this Agreement. Such notice shall be no less thantwelve (12) months in advance of the last order date. Customer shall have atwelve (12) month order placement period and must take receipt of the Productswithin eighteen (18) months of notification of the discontinuance.

 

23.2         After receiptof such notice of discontinuance, Customer may determine its Life Time Buy(LTB) quantity under the following conditions: (a) the quantity shall beby mutual agreement and (b) the price shall be negotiated at the time TAECgives notice of the discontinuance.

 

**24.****                              ****LIABILITY**

 

TAECWILL UNDER NO CIRCUMSTANCES BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,SECONDARY, PUNITIVE OR EXEMPLARY LOSS OR DAMAGES OR ECONOMIC LOSS ARISING OUTOF OR RELATING TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT FOR ANYREASON WHATSOEVER REGARDLESS OF THE FORM OF ACTION, EVEN IF TAEC HAD BEENADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGES OCCURRING AND EVEN IF ANEXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSES. TAEC SHALL NOT BE LIABLE FORANY DAMAGES OR CLAIMS ARISING MORE THAN ONE (1) YEAR PRIOR TO THEINSTITUTION OF A LEGAL PROCEEDING THEREON. IN NO EVENT WILL TAEC’s LIABILITY TOCUSTOMER FOR ANY ACTION OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THISAGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TAEC FOR THEPROTOTYPES OR PRODUCTS THAT ARE THE SUBJECT OF SUCH CLAIM.

 

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**25.****                              ****INTELLECTUALPROPERTY RIGHTS INDEMNIFICATION**

 

25.1         Subject to theprovisions set forth hereinafter and in Article 26. NON-INFRINGEMENT OFRIGHTS clause herein, TAEC shall defend, indemnify, and hold Customer harmlessfrom and against all damages, obligations, causes of action, suits, or injuriesof any kind arising from any actual or claimed infringement of United States,Canada, Mexico, Japan and European Community patents, mask work rights, orcopyrights with respect to TAEC’s design or TAEC’s manufacturing of thePrototypes or Products; provided that:

 

a.                                       Customer shallpromptly notify TAEC in writing of any claim of infringement; and

 

b.                                      TAEC shall havesole control of both the defense of any action on such claim and allnegotiations for its settlement or compromise; and

 

c.                                       Customer shallprovide all reasonably necessary authority, information, and assistance to TAECand its counsel for the defense of such claim.

 

25.2         Notwithstandingthe foregoing, TAEC shall have no liability or obligation to Customer withrespect to any intellectual property results infringement or claims thereofbased on:

 

a.                                       TAEC’scompliance with designs, plans, specifications, or other information providedby Customer;

 

b.                                      Use of thePrototypes or Products in combination with devices or products not purchasedhereunder where the Products would not in themselves be infringing;

 

c.                                       Use of thePrototypes or Products in an application or environment for which such Productswere not designed or contemplated;

 

d.                                      Modificationsor additions to Prototypes or Products by Customer;

 

e.                                       Any claims ofinfringement of a patent in which Customer, or any affiliate or customer ofCustomer, has an interest or a license; or

 

f.                                         Should theowner of such intellectual property rights wish to grant a license to Customerwith respect to a claim of patent infringement when the claimant declines tooffer a license to TAEC but insists upon dealing only with Customer,notwithstanding TAEC’s good faith efforts to resolve the claim.

 

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25.3         If any Productis held to constitute an infringement or its use is enjoined, TAEC, at itsoption and at its own expense, may:

 

a.                                       Procure forCustomer the right to continue using such Product royalty-free; or

 

b.                                      Replace suchProduct to Customer’s reasonable satisfaction with non-infringing product ofequivalent quality and performance; or

 

c.                                       If (a) and/or(b) above are impracticable, accept the return of such Product for credit,allowing for a reasonable deduction for depreciation.

 

**26.****                              ****NON-INFRINGEMENTOF RIGHTS**

 

Customerrepresents and warrants that the circuit design and other information furnishedby Customer to TAEC, with respect to the design portion of the Prototypes orProducts does not infringe any copyright, trade secret, United States, Canada,Mexico, Japan and European Community patent or other intellectual propertyright of any third party. Customer shall defend, indemnify and hold harmlessTAEC against any claims, damages, and expense (including attorney fees),arising out of or in connection with Customer’s breach of the foregoingrepresentation and warranty.

 

**27.****                              ****TERMINATION**

 

27.1         This Agreementwill become effective on the Effective Date and will remain in full force andeffect for a period of three (3) years from the Effective Date, unlessterminated pursuant to this Article 27.

 

27.2         Either partymay terminate any development or Purchase Order, effective upon written noticeto the other party should any of the following events occur:

 

a.                                       The other partyfiles a voluntary petition in bankruptcy;

 

b.                                      The other partyis adjudicated bankrupt;

 

c.                                       The other partymakes an assignment for the benefit of its creditors;

 

d.                                      A court assumesjurisdiction of the assets of the other party under any bankruptcy; or

 

e.                                       A party isunable to pay its debts as they become due.

 

27.3         Either partyshall have the right to terminate any development or Purchase Order for breachof a material term or condition of this Agreement, if such breach continues fora period of thirty (30) days after written notice thereof to the other.

 

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27.4         If Customerdefaults in the payment of any sum due under this Agreement and does not curesuch default within thirty (30) days of written notice thereof from TAEC, thenTAEC shall, without further notice, have the immediate right to repossess andremove the Product. Customer’s obligation to pay all charges which shall haveaccrued and compensation, if any, which covers the actual costs incurred byTAEC as a result of such termination, shall survive any termination of thisAgreement.

 

**28.****                              ****FORCEMAJEURE**

 

Neitherparty shall be responsible or liable in any way for failure or delay inperforming its obligations under these terms and conditions, other thanobligations to make payment, when such failure or delay is directly orindirectly due to an act of God, war, threat of war, war-like conditions,hostilities, sanctions, mobilization, blockade, embargo, detention, revolution,riot, looting, striking, lockout, accident, fire, explosion, flood, inabilityto obtain fuel, power, raw materials, labor, container or transportationfacilities, breakage of machinery or apparatus, government order orregulations, or any other cause beyond its reasonable control.

 

**29.****                              ****GOVERNMENTINTERVENTION**

 

TAECreserves the right to adjust prices or quantities to equitably compensate forincreases in tariffs or similar charges, or for other government actionsresulting in curtailment, prevention, or taxation of imports. Unless otherwiserequired by law, all prices will be quoted and billed exclusive of Federal,state, and local excise, sales, and similar taxes, but inclusive of importduties.

 

**30.****                              ****EXPORTREGULATIONS**

 

ThisAgreement involves products and/or technical data that may be controlled underthe U.S. Export Administration Regulations and that may be subject to theapproval of the United States Department of Commerce prior to export. Anyexport or re-export by either party, directly or indirectly in contravention ofthe U.S. Export Administration Regulations, is prohibited.

 

**31.****                              ****GENERAL**

 

31.1         Neither partyshall assign its rights and obligations under this Agreement without the priorwritten consent of the other party, except that TAEC may assign the performanceof any of its obligations, including the manufacture of Prototypes or Products,to Toshiba Corporation or its affiliates.

 

31.2         These Terms andConditions shall be interpreted and governed by the laws of the State ofCalifornia without regard for its conflicts of laws principles, regardless ofwhere any action may be brought. The parties agree to submit to the exclusivejurisdiction of the state and federal courts of the State of California. Theparties expressly agree that the UN Convention for the International Sale ofGoods shall not apply hereto.

 

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31.3         Allmodifications to this Agreement must be in writing and signed by both parties.Failure or delay of either party to exercise any right or remedy hereundershall not constitute a waiver of rights or remedies under this Agreement.

 

31.4         This Agreementis the exclusive statement of the Terms and Conditions between the parties withrespect to the matters set forth herein, and supersedes all other prior orcontemporaneous agreements, negotiations, representations, tender documents,and proposals, written and oral. Any additional or conflicting provisionscontained in Customer’s purchase order, or any purchase order acknowledgmentissued by TAEC shall not apply.

 

31.5         If anyprovision of this Agreement is held unenforceable or inoperative by any courtof competent jurisdiction, either in whole or in part, the remaining provisionsshall be given full force and effect to the extent not inconsistent with theoriginal terms of this Agreement.

 

31.6         Any noticegiven hereunder shall be sent in writing to the other party’s business addressset forth on the cover page hereof, or to such other party and address assuch part shall have designated most recently in writing. Notices directed toTAEC shall be sent “Attention: Legal Department.”

 

31.7         This Agreementmay be executed in several identical counterparts, each of which when executedby the parties hereto and delivered shall be an original, but all of whichtogether shall constitute a single instrument.

 

31.8         Articles 9, 12,13, 15, 17, 19, 20, 24, 25, 26, 30 and 31 shall survive the termination orexpiration of this Agreement.

 

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