Exhibit 10.23


 


ADVANCED POWER TECHNOLOGY, INC.


NORTH AMERICA DISTRIBUTOR AGREEMENT


 


This Agreement is made this 1st day of August 2002, by and between
Advanced Power Technology, Inc., with its principal place of business at 405 S.
W. Columbia Street, Bend, Oregon 97702, U.S.A. and Advanced Power Technology
RF, Inc., with its principle place of business at 3350 Scott Blvd. Bldg 27,
Santa Clara, CA U.S.A. and Advanced Power Technology RF, PA with its principle
place of business at 140 Commerce Drive, Montgomeryville PA, U.S.A.
(hereinafter and together referred to as “Company”), and Richardson
Electronics. Ltd., a company organized and existing under the laws of Delaware
with its principal place of business at 40W267 Keslinger Road. LaFox IL 60147 (Hereinafter
referred to as “Distributor”).


 


RECITALS


 


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


 


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.


 










	
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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.


 


Section 3.               Obligations
of Distributor.


 


During the term of this Agreement, Distributor shall at all times use
best efforts and commensurate with
Distributor’s overall business 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. All confidential information
supplied to Company (including, without limit, customer names and data) by
Distributor shall remain Distributor’s property and shall not be disclosed by
Company or used to Distributor’s detriment.


 


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 day of each month a report detailing the total
sales and inventory levels of the Products for the prior month.


 










	
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3.6.          Distributor shall use
its best efforts to actively promote the sale of the Products to customers in
its territory, commensurate with its overall
business. 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.


 


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


 


4.2.          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.


 


4.3.          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 F.O.B. Bend,
Oregon. 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.


 










	
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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 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.


 


7.1.          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 due within [ * ] days of invoice date.


 










	
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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.


 










	
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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. Company
reserves the right to unilaterally change these procedures, such changes will
become effective upon reasonable notice to Distributor.


 


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.


 










	
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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 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 effective date of termination or expiration, 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 will have
the option of accepting the Distributor stock inventory valued at the effective
Distributor cost as of the date of termination or at Distributor acquisition
price, whichever is lower. Company will not accept stock inventory not returned
within the 30-day period. This reacquisition formula applies only to the
Products shipped by Company to Distributor within one year of the date of termination
or expiration of the Agreement. For Products which are custom Products, Company
may repurchase such items at prices within its sole discretion. 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


 










	
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subcontractors
for similar compensation or for severance, liability or other pay.


 


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 or
from Company’s failure to comply with all applicable federal, state and local
laws and regulations or from acts or omissions of Company, its agents or
employees.


 


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 that Company’s
obligations under such warranty are limited to, and shall not run beyond, the
warranty period provided from the date of Company’s shipment of the Products,
except where specific customer or user requirements are agreed to by Company in
writing. Company shall have no liability to Distributor or to the customer or
user with respect to any alleged defective Products sold by Company except as
specifically set forth in Company’s warranty, if any, included as part of the
terms and conditions of the sale made by Company. 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.


 










	
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17.2         The products are not
authorized for use as critical components of life support systems. A critical
component is any component of a life support device or system whose failure to
perform may be expected to cause the failure of the life support device or to
affect its safety or effectiveness.


 


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 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 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.


 










	
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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.             Compliance
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 such records as are required by all applicable
laws and regulations and to provide such written assurances as are required by
Company 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:

  
	
   

  	
   

  
	
   

  	
  Richardson
  Electronics, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
  President,
  CEO

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
   

  	
   

  
										



 










	
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EXHIBIT A


AUTHORIZED LOCATIONS


 


 


All Locations Worldwide


 


 


	
  Company:

  	
  Distributor:

  
	
   

  	
   

  
	
   

  	
  Richardson
  Electronics, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
  President,
  CEO

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
   

  	
   

  
										



 










	
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EXHIBIT B


 


Products


 


 


ALL STANDARD
AND CUSTOM DISCRETE POWER PRODUCTS OFFERED BY THE BEND OREGON LOCATION


 


ALL STANDARD
AND CUSTOM ASPM PRODUCTS OFFERED BY THE ADVANCED POWER TECHNOLOGY EUROPE
LOCATION


 


ALL RF
PRODUCTS OFFERED BY THE SANTA CLARA CA AND MONTGOMERYVILLE PA LOCATIONS


 










	
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ADDENDUM 1


 


Section 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 for Advanced Power Technology, Inc., Bend, Oregon, and sixty (60)
days for Advanced Power Technology, RF, Santa Clara, CA and Montgomeryville, P
A of first factory promise date.


 


 


	
  Company:

  	
  Distributor:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
  President,
  CEO

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
   

  	
   

  
										



 










	
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