Exhibit 10.29


 


ADVANCED POWER TECHNOLOGY, INC.


WORLDWIDE DISTRIBUTOR AGREEMENT


 


This Agreement
is made this 30th day of October, 2003, by and between Advanced Power
Technology, Inc., a Delaware Corporation with its principal place of business
at 405 S. W. Columbia Street, Bend, Oregon 97702, U.S.A. and all its wholly
owned subsidiaries (hereinafter referred to as “Company”), and Future
Electronics, a company organized and existing under the laws of New Brunswick
with its principal place of business at 237 Hymus Blvd, Pointe Claire, Quebec
H9R 5C7 (hereinafter referred to as “Distributor”).


 


RECITALS


 


A.                                 Company
is engaged in the business of manufacturing and selling power transistors.


 


B.                                   Company
wishes to supplement its own sales efforts through the appointment of a
non-exclusive and independent distributor.


 


C.                                     Distributor
wishes to act as a distributor of Company’s products.


 


NOW,
THEREFORE, in consideration of the mutual promises, terms, provisions and
conditions contained herein, the parties hereto agree as follows:


 


Section 1.  Appointment of Distributor.


 


Company hereby
appoints Distributor, and Distributor hereby accepts such appointment as a
non-exclusive and authorized distributor of Company during the term of this
Agreement for the sale of Company’s Products, as defined in Section 2.1, from
listed locations.


 


Section 2.  Products.


 


2.1.
                           The
products covered by this Agreement shall be those identified on Exhibit “B,”
attached hereto (the “Products”).


 


2.2.
                           Company
may add Products to, or delete Products from, Exhibit “B” upon written notice
to the Distributor.


 


2.3.
                           Notwithstanding
anything to the contrary contained herein” Company reserves the right, in its
sole discretion and without notice, to modify specifications and
characteristics of its Products, to discontinue the distribution and sale of
such Products, and to cancel, modify or condition any right of the Distributor
to prevent a violation of law.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


NORTH AMERICA DISTRIBUTOR
AGREEMENT


 


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Section 3.  Obligations of Distributor.


 


During the
term of this Agreement, Distributor shall at all times use best efforts to
enhance the image and reputation of Company and the Products which are the
subject matter hereof, and agrees:


 


3.1.
                           Distributor
shall not disclose information of Company considered by Company to be
confidential or proprietary including, but not limited to, customer and price
lists and data regarding the design or methods of manufacture of the Products
and will not use any such information except as contemplated by this Agreement.
Such information will be appropriately marked or identified by Company and the
obligation of Distributor not to disclose or improperly use such information
will survive the termination of this Agreement. Upon the termination of this
Agreement or the earlier request of Company, all such information will be
promptly returned to Company. The restrictions of this Section 3.1 are in
addition to any other agreement between the parties with respect to the
protection and use of information.


 


3.2.
                           Distributor
agrees that they will comply with all applicable federal, state, and local laws
or regulations in performing any act arising out of or in connection with this
Agreement. Distributor agrees to maintain such records as are required by all
applicable laws and regulations and this Agreement and to promptly provide such
records or written assurances as may be required by Company in connection
therewith.


 


The parties
agree that each will use its best efforts to secure any licenses or permits as
may now or hereafter be required in connection with the performance of its
obligations under this Agreement, but this Agreement shall not be deemed to
require any performance on the part of either party which cannot lawfully be
done pursuant to the laws and regulations referred to above.


 


3.3.
                           Distributor
shall sell only Company’s Products that bear Company’s markings or trademarks
and will not alter, modify or in any way change the Products, marking or
trademarks thereon without prior written approval of Company.


 


3.4.
                           Distributor
shall offer and sell Products only in accordance with specifications and
warranty schedules provided by Company.


 


3.5.
                           Distributor
shall provide Company by the 15th working day of each month a report detailing
the total sales and inventory levels of the Products for the prior month.


 


3.6.
                           Distributor
shall use its best efforts to actively promote the sale of the Products to
customers in its territory. Such efforts shall include, but not be limited to,
promptly servicing all customer accounts, soliciting new customer accounts, and
cooperating and participating in Company’s advertising and sales promotional
programs.


 


3.7.
                           Distributor
shall provide and maintain, without expense to Company, a suitable place of
business with adequate facilities and sufficient personnel for the sale and
distribution of the Products and to fulfill all other additional objectives
agreed to in writing by Company and Distributor.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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3.8.
                           Distributor
shall pay all fees, taxes and duties which may be imposed on the Products
purchased by Distributor. To the extent that Company must pay any fees, taxes
or duties on Products sold to Distributor, Distributor shall promptly reimburse
Company.


 


3.9.
                           Distributor
shall refrain from any activities which are illegal, unethical, or which might
damage Company’s reputation.


 


3.10.
                     Distributor
shall fully comply with all agreements with Company, including without
limitation, the obligations to pay amounts due when due.


 


3.11.
                     Distributor
shall use its best efforts to consolidate purchase orders to promote efficiency
and reduce supporting documentation.


 


Section 4.  Obligations of Company.


 


4.1                               Company
shall not disclose information of Distributor considered by Distributor to be
confidential or proprietary including, but not limited to, customer and price
lists and will not use any such information except as contemplated by this
Agreement. Such information will be appropriately marked or identified by
Distributor and the obligation of Company not to disclose or improperly use
such information will survive the termination of this Agreement. Upon the
termination of this Agreement or the earlier request of Distributor, all such
information will be promptly returned to Distributor. The restrictions of this
Section 4.1 are in addition to any other agreement between the parties with
respect to the protection and use of information.


 


4.2.
                           Company,
in its sole discretion, shall maintain the necessary personnel needed to
fulfill the agreed upon sales objectives of Company and Distributor.


 


4.3.                              Company
shall use its best efforts to manufacture sufficient quantities of Products to
meet the requirements of Distributor. Company shall consult with Distributor
regarding inventory levels, and shall advise Distributor of promotional efforts
to increase the sale of Products.


 


4.4.
                           Company
shall subject all Products delivered to Distributor to its usual standards of
quality control and inspection and all Products sold or delivered under this
Agreement shall be subject to the limited warranty set forth in paragraph 17
below.


 


Section 5.                                            Deliveries


 


5.1.
                           All
deliveries of Products by Company pursuant to this Agreement will be made EXW
Company facilities and designated subcontractors. Products will be consigned to
carriers for shipment to Distributor, however, upon the written approval of
Company and Distributor, Company will consign Products to carriers for shipment
directly to Distributor’s customers.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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5.2.                             Minimum
order quantities: The minimum order quantities for all products shall be the standard
minimum order quantities in effect at the time of acceptance by Company from
the Distributor.


 


Section 6.                                            Title
and Risk of Loss.


 


Title to and
risk of loss of Products sold hereunder shall pass to the Distributor upon
delivery to the carrier at the F.O.B. point.


 


Section 7.                                            Price.


 


Company agrees
to sell the Products to Distributor at negotiated market prices or at the
prices set forth in the published Distributor Cost and Price Schedule. All
prices are subject to change by Company at any time upon written notice to
Distributor.


 


7.l.
                              If
the price for any Product is increased prior to full shipment of any Order, the
price charged to Distributor will be that in effect at the time of Company’s
acceptance of Distributor’s Order. If the price for any Product is decreased,
all Products shipped on or after the effective date of any price decrease will
be shipped and invoiced at the price in effect at the time of shipment.


 


7.2.
                           In
order to assist Distributor in competitive markets, Company will, under certain
limited circumstances, adjust the effective price of the Products to
Distributor. The unit price of any Product(s) as set forth in Exhibit “B” shall
be ultimately adjusted pursuant to the following procedure: Distributor must
contact Company, or Company’s local representative, and provide to the same the
customer’s name, Company part number, quantity, delivery schedule, price per
unit requested by Distributor, resale price per unit to customer and
competitive products available in the market. Upon acceptance by Company of the
information and approval of Distributor’s request for a price reduction,
Company or Company’s local representative shall provide Distributor with the
Company’s authorized “ship and debit” price per unit for the particular order
and the Company’s authorization number. Within 30 days from the invoice date to
Distributor’s customer, Distributor shall provide Company with a copy of the
invoice, or a substitute deemed acceptable by Company, and a debit memorandum
with Company’s authorization number to obtain a credit. Upon Company’s request,
Distributor shall produce for inspection the original invoice. Upon
satisfaction of the conditions set forth above, Company shall issue to
Distributor, within 30 days of receipt of the supporting documentation set
forth above, a credit. A credit will only be issued for those amounts
authorized.


 


Section 8.                                            Payments.


 


Payment for
Products delivered to Distributor shall be in United States dollars and is
within [ * ] days of invoice date.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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Section 9.                                            Cancellation
of Order.


 


9.1.
                           In the event Distributor cancels an
Order for any customized Product which has been accepted by Company,
Distributor shall pay Company for all direct and indirect costs incurred by
Company as a result of such cancellation.


 


9.2.
                           Distributor
may reschedule delivery dates of product on order by written request to
Company; provided, however, that no such changes shall be allowed within thirty
(30) days of first factory promise date.


 


9.3.
                           Distributor
may cancel standard product by written notice to Company; provided, however,
that no orders may be canceled within thirty (30) days of first factory promise
date.


 


Section 10.                                      Excusable
Delays and Failures (Force Majeure)


 


Company shall
be excused for delays in performing and failures to perform pursuant to this
Agreement and to any Order issued hereunder to the extent that any such delay
or failure results from any cause beyond its control, including, solely by way
of example and without limitation, delays caused by Distributor or a third
party, acts of God, strikes, and other labor disputes, government regulations,
public disorders, international disputes, inability to obtain or shortage of any
material used in the manufacture or shipping and delivery of the Products,
transportation or trade embargoes, customs restrictions, and catastrophes of
nature, fire and explosion, whether any such cause affects Company, any
supplier or provider of service to Company. Company agrees to exert reasonable
effort to prevent such occurrences from affecting its performance hereunder.
Company shall not be liable for damages, general, specific or otherwise
resulting from such excusable delays and failures.


 


Section 11.                                      Inventory.


 


11.1.
                     Distributor
shall maintain a minimum level of inventory of Products. The level of inventory
shall be established by Company and adjusted from time to time as market
conditions warrant. Company retains the right to inspect Distributor’s
inventory at any time.


 


11.2.
                     In the event
of a decrease in the price of any of Company’s Products, Distributor shall be
entitled, within thirty (30) days following such decrease, to apply for a
credit in an amount equal to the difference in the price of the Product(s)
excluding transportation charges, duties and taxes) before and after such
decrease on the unsold Product(s) in Distributor’s inventory and/or the
affected Product(s) in transit to Distributor. This credit shall be calculated
upon receipt of an itemized inventory from Distributor and shall be applied
against future Orders from Distributor. Company will have the right to inspect
the inventory subject to the credit and all records relating thereto.


 


Section 12.                                      Returns.


 


12.1.
                     Company will
accept returned Products only if such return is made in accordance with Company’s
current procedures which are set forth in this Section 12.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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12.2.
                     [ * ]


 


12.3.
                     Company shall
give Distributor written notice of the discontinuance of any Product. Within 30
days of receipt of such notice, Distributor shall notify Company in writing of
its intention to return discontinued Products for credit. On receipt of such
Product in a condition acceptable to Company, freight prepaid by Distributor,
Company shall issue a credit to Distributor.


 


12.4.
                     Distributor
is authorized to return slow-moving items for exchange in only the months of
January and July. All such returns shall require Company’s prior written
authorization and the return material authorization number given with such
prior written authorization, and a dollar for dollar offsetting order is
received, and shall be limited to five percent (5%) of the U.S. dollar amount
(excluding costs associated with shipping, handling, duties and taxes) of
standard purchases of Product over the prior six months. All returned material
must be returned in a condition acceptable to Company.


 


Section 13.                                      Advertising.


 


13.1.
                     Company and
Distributor shall jointly agree from time to time on advertising programs and
other forms of promotion of the Products in the Territory. Company shall share
such expenses equally with Distributor; provided, however, Company’s share of
such expenses shall not exceed [ * ]) of Company’s prior 12 month’s sales to
Distributor.


 


13.2.
                     Company shall
provide Distributor reasonable quantities of its Product catalogs, data sheets
and other promotional material free of charge. Additional quantities of any
such material requested by Distributor shall also be supplied free of charge,
F.O.B. point of origin.


 


13.3.
                     Distributor
may conduct advertising programs other than those programs undertaken with
Company provided Distributor obtains Company’s approval of all aspects of the
advertising program. Distributor shall refrain from making any representations
or claims concerning the Products which are inconsistent or exceed Company’s
written representations.


 


Section 14.                                      Duration
and Termination.


 


14.1.                        Unless
terminated as provided for herein, this Agreement shall continue in force for
one year from the date first above mentioned. This agreement shall continue


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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thereafter
unless either party gives written notice to the other party of its intention to
terminate the agreement, giving at least thirty (30) days written notice.


 


14.2.
                     If either
party commits a material breach of this Agreement or becomes insolvent or
bankrupt, or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors, or ceases to function as a
going concern or to conduct its operations in the normal course of business,
the other party shall have the right to cancel this Agreement by giving
immediate written notice of its election to do so.


 


14.3.
                     Upon
expiration or termination of this Agreement by Distributor, Distributor will
return to Company at such place as Company may designate, all promotional
materials which had originally been furnished by Company to Distributor.
Distributor shall be responsible for all return charges. Upon expiration or
termination of this Agreement by Company, Company shall be responsible for all
return charges.


 


14.4.
                     Company and
Distributor agree that upon the expiration or termination of this Agreement,
neither party shall be liable to the other for any damages, expenditures, loss
of profits or prospective profits of any kind or nature sustained or arising
out of, or alleged to have been sustained or to have arisen out of, such
termination. The expiration or termination of this Agreement shall not,
however, release either party from making payments which may be owing to either
party under the terms of this Agreement.


 


14.5.
                     Upon
termination or expiration of this Agreement by Company, Company will accept,
within 30 days after receipt of RMA number, the Distributor’s stock inventory
valued at the effective Distributor cost as of the date of termination or
expiration or at Distributor’s acquisition price, whichever is lower. Upon
termination or expiration of this agreement by Distributor, Company shall
accept the Distributor stock inventory valued at the effective Distributor cost
as of the date of termination or at Distributor acquisition price, whichever is
lower. Stock inventory not returned within the 30-day period will not be
accepted by Company. For Products which are custom Products, Company may
repurchase such items at prices within its sole discretion. Payment to
Distributor shall be made within twelve (12) months of receipt of Distributor’s
invoice.  Products specially prepared by
Company to Distributor’s specifications will not be repurchased.


 


14.6.
                     In event of
termination of this Agreement for any reason, Company shall not be liable to
the Distributor or any employee or agent of the Distributor for compensation,
reimbursement or damages on account of the loss of prospective profits or
anticipated sales or on account of expenditures, investments, leases or
commitments in connection with the business or goodwill of the Distributor or
for any reason arising out of such termination. The Distributor hereby waives
any and all rights it might have to compensation upon termination of this
agreement pursuant to the local and national laws of any country within the
territory and hereby agrees to indemnify Company and hold harmless from any and
all claims of its employees or subcontractors for similar compensation or for
severance, liability or other pay.


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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Section 15.                                      Relationship
Between Parties.


 


15.1.
                     This
Agreement does not create an employer-employee relationship between Company and
Distributor, or a joint venture or partnership. The relationship between
Company and Distributor shall be that of seller and buyer and in such relationship Distributor shall be an
independent contractor and shall have no authority to act for or to bind
Company in any matter. Distributor agrees to hold Company harmless from all
claims, actions or judgments arising from acts or omissions of Distributor, its
agents or employees.


 


15.2.
                     Company shall
indemnify, protect and save harmless Distributor from and against all claims,
demands and proceedings, actions, liabilities and costs resulting from any
actual or alleged infringement of any patent, industrial and commercial
property rights of third parties related to the Products.


 


Section 16.                                      Export
Controls.


 


Distributor
acknowledges that exportation of the Products may be subject to compliance with
various United States Export Administration Acts and the rules and regulations
promulgated from time to time thereunder, which restrict the export and
re-export of certain products, technical data and direct products of technical
data. Distributor agrees to comply with such United States export control laws,
rules and regulations and all other applicable laws and governmental
regulations, domestic, foreign and local.


 


Section 17.                                      Warranty


 


17.1
                        Products
sold pursuant hereto are covered by Company’s standard warranty in effect as
set forth in the Company sales contract under which the Products are sold
provided, however, that the warranty coverage shall be no less than the
following:


(i)            [
* ];


(ii)           Company
shall extend such warranty directly to the customer as if such customer had
purchased the Products directly from Company;


(iii)          Company
shall warrant the Products against defects in material and workmanship under
normal use and service, repair or replace at Company’s cost any defective
Product (or issue a credit or refund, as the case may be, based on the purchase
price paid therefor); and


(iv)          Company
shall pay (or refund the amount of) all freight and shipping charges for any
defective Products returned under this paragraph.


Distributor
shall have no authority to and shall not make any warranty representation with
respect to the Products contrary to or inconsistent with Company’s warranty.


 


Section 18.                                      Miscellaneous.


 


18.1.
                     This
Agreement does not convey, nor shall Distributor claim any title or property
interest in Company’s trademarks, trade names, copyrights, patents or other
such property so marked by Company. Distributor acknowledges ownership by
Company of


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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trademarks,
names, copyrights, patents and other such property so marked by Company, so
identified or so identifiable.


 


18.2.
                     Distributor
shall not delegate any duties or assign any rights under this Agreement or any
interest herein without Company’s prior written consent.


 


18.3.
                     The validity,
meaning enforceability and effect of this Agreement, and the rights and
liabilities of the parties, shall be determined in accordance with the laws of
the State of Oregon.


 


18.4.
                     Except as
specifically provided in a written waiver signed by a duly authorized officer
of the party or the party seeking enforcement, the failure to enforce or the
waiver of any term of this Agreement shall not constitute the waiver of such
term at any time or in any circumstance and shall not give rise to any
restriction on or condition to the prompt, full and strict enforcement of the
terms of this Agreement.


 


18.5.
                     All notices
in connection with this Agreement shall be in writing and shall be effective
upon dispatch if by telex, telegram or similar means, upon delivery if by hand
delivery, and 3 days after deposit if deposited in the channels of the United
States mails, postage prepaid, in registered form, return receipt requested. In
all cases notices shall be delivered to the other party at the address set
forth above or such other address such party may have provided by written
notice.


 


18.6.
                     This
Agreement, including any exhibits, schedules and tables attached hereto which
either have been specifically referred to herein or have been initialed by the
parties, constitute the entire agreement between the parties with respect to
the subject matter. This Agreement supersedes all prior discussions,
understandings and agreements with respect to the subject matter.


 


18.7.
                     This
Agreement may be amended or supplemented only in a writing designated as such
an amendment or supplement and signed by a duly authorized officer of the party
or the party against whom enforcement is sought.


 


18.8.
                     This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
Agreement.


 


18.9.
                     If any
provisions of this Agreement shall be held by a court of competent jurisdiction
to be invalid, the remaining provisions of this Agreement shall remain in full
force and effect.


 


Section 19.
                                   Comp1iance
with Law.


 


19.1
                        Distributor
agrees that it will not violate any applicable law or regulation of any country
or political subdivision thereof in performing or purporting to perform any act
arising out of or in connection with this Agreement. Pursuant thereto,
Distributor agrees to maintain


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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such records
as are required by all applicable laws and regulations and to provide such
written assurances as are required by APT in connection therewith.


 


19.2
                        This
Agreement is subject to all applicable laws, regulations and other statutory
and administrative acts, now or hereafter in effect of the United States and
the Territory. The Distributor agrees that it will use its best efforts to
secure any licenses or permits as may now or hereafter be required in
connection with the performance of its obligations under this Agreement, but
this Agreement shall not be deemed to require any performance on the part of
either party which cannot lawfully be done pursuant to the laws, regulations
and statutory and administrative acts referred to above.


 


IN WITNESS
WHEREOF, the undersigned, being duly authorized, have executed this Agreement
in duplicate as of the day and year first above written.


 


	
   

  	
  Company:

  	
   

  	
   

  	
  Distributor:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Advanced
  Power Technology Inc.

  	
   

  	
  Future
  Electronics

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
  Greg M. Haugen

  	
   

  	
  Sam Abrams

  
	
   

  	
   

  	
   

  
	
  Title

  	
  Chief
  Financial Officer

  	
   

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  October 30,
  2003

  
								



 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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EXHIBIT A


AUTHORIZED LOCATIONS


 


 


All Locations Worldwide


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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EXHIBIT B


 


 


Products


 


 


All APT Products


 










[ * ] = CONFIDENTIAL TREATMENT
REQUESTED


 


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