Exhibit 10.3





Exhibit
10.3




MASTER PURCHASE AGREEMENT




This Master Purchase Agreement (“MPA”) is made as of January 16, 2006 (“Effective Date”) by and
between Raza Microelectronics, Inc., a Delaware corporation, having its principal place of business
at 18920 Forge Drive, Cupertino, CA 95014 (“RMI”), and Aruba Wireless Networks, Inc., a Delaware
corporation, having its principal place of business at 1322 Crossman Ave., Sunnyvale, CA, 94089
(“Purchaser”).



RECITALS





	 	A.	 	RMI is in the business of designing, developing and selling leading edge, highly
programmable semiconductor products for use in networking and computing systems.







	 	B.	 	Purchaser desires to purchase from RMI, or have purchased on its behalf by Purchaser
CMs (as hereinafter defined), and RMI desires to supply to Purchaser and/or Purchaser CMs,
the Products (as defined herein) pursuant to the terms and conditions herein.






NOW, THEREFORE, in consideration of the mutual promises contained herein, together with other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:



1. DEFINITIONS




1.1 “Custom Product” shall mean a Product that is not standard and (i) is customized expressly for
Purchaser product requirements, or (ii) for which RMI has no alternative redistribution channel.



1.2 “Delivery Date” shall mean the date agreed to by the Parties for receipt of goods at the
specified delivery location identified in the applicable purchase order.



1.3 “Discontinuance Period” shall mean the end of life or discontinuation of a Product in
accordance with Section 7.2.



1.4 “Intellectual Property” shall mean any and all tangible and intangible: (i) rights associated
with works of authorship throughout the world, including but not limited to copyrights, neighboring
rights, moral rights, and maskworks, and all derivative works thereof, (ii) trademark and trade
name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and
other industrial property rights, (v) all other intellectual and industrial property rights (of
every kind and nature throughout the world and however designated) whether arising by operation of
law, contract, license, or otherwise, together with all registrations, initial applications,
renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force
(including any rights in any of the foregoing).



1.5 “Lead Time” shall mean the period from the time RMI accepts an order for Products until the
time such Products are delivered to a carrier in accordance with Section 5.1 and/or as set forth in
the Product Schedule.



 


 









 





1.6 “Open Source Technology” shall mean any technology from the open source community, including
without limitation any software that requires as a condition of use, modification and/or
distribution of such software, that other software incorporated into, derived from or distributed
with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the
purpose of making derivative works; or (iii) redistributable at no charge.



1.7 “Products” shall mean the products that fully conform with Specifications (defined herein) and
listed in each Product Schedule or otherwise purchased by Purchaser or on its behalf by
Purchaser CMs, and shall include hardware products, Software and user documentation
(where applicable).



1.8 “Product Price” shall mean the most recent mutually agreed to net price that Purchaser and
Purchaser CMs shall pay for each Product as listed in either: (i) the applicable Product Schedule,
(ii) the most recent bona fide price quote which has been delivered by RMI and accepted by
Purchaser or (iii) such other writing agreed to by the parties.



1.9 “Product Schedule” shall mean the schedule attached hereto as Exhibit A. Product
Schedules agreed upon after the Effective Date, shall be executed by the parties and copies shall
be appended hereto. The Product Schedules may be amended from time to time in accordance with the
mutual agreement of the parties.



1.10 “Purchaser CMs” shall mean those bona fide third-party contract manufacturers for Purchaser
who are identified in Exhibit C, as it may be amended by Purchaser throughout the Term by
providing RMI with prior written notice in accordance with Section 17.2.



1.11 “SOA” shall mean the Sales Order Acknowledgment delivered by RMI to Purchaser or a Purchaser
CM in response to a bona-fide purchase order received from Purchaser
or such Purchaser CM.



1.12 “Software” shall mean any computer code in object code or executable code format and whether
embedded in or bundled with the Products in any manner, including as firmware, together with all
bug fixes, revisions and upgrades thereto.



1.13 “Specifications” shall mean the Product-specific specifications that are set forth or
referenced in the applicable Product Schedule, or as otherwise agreed to in writing by the parties,
as well as such revisions and improvements to the specifications and such deviations from the
specifications (such as errata) as are agreed to in writing by the parties or (with respect to
errata) otherwise accepted by Purchaser.



1.14 “Standard Products” shall mean Products for which RMI has other customers in addition to
Purchaser and which are not Custom Products.



1.15 “Subsidiary” shall mean a corporation in which a party effectively owns or controls, directly
or indirectly, more than fifty percent (50%) of the voting stock or shares.



1.16 “Taxes” shall mean any tax or other charge that RMI is liable to collect or Purchaser is
liable to pay on behalf of or to any governmental authority as a result of the sale, use or
delivery of Products, including without limitation, duties, value added and other withholding
taxes. Taxes do not include taxes on RMI’s net income.



 


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1.17 “Term” shall have the meaning set forth in Section 15.1.



1.18 “Warranty Period” shall mean the duration of warranty, commencing upon shipment of the Product
to Purchaser, Purchaser CMs or other authorized delivery site, as specified in Section 10.3.



2. SALES AND PURCHASES OF PRODUCT




2.1 Products. RMI agrees to supply, and Purchaser and its authorized Purchaser CMs agree
to purchase, the Products set forth in the Product Schedule attached as Exhibit A, in each
case pursuant to the terms and conditions of this MPA. RMI hereby agrees to supply the Products to
Purchaser and Purchaser CMs in compliance with the Specifications for the exclusive purpose of
incorporating the Products into one or more final Purchaser products.



2.2 Purchase Orders. Purchaser or a Purchaser CM shall initiate the purchase of Products by
delivery of a signed purchase order to RMI, in writing or electronically, which purchase order
shall include, without limitation, the purchaser order number, Product name, specification,
quantity, price and requested Delivery Date in compliance with the applicable Lead Time. RMI shall
accept and acknowledge, by delivery of a SOA to Purchaser in writing or electronically, all
purchase orders within three (3) business days after receipt thereof, identifying the anticipated
shipping date and Delivery Date. In the event that RMI’s anticipated Delivery Date in the SOA is
inconsistent with the Delivery Date requested in the purchase order, the parties shall thereafter
agree upon the date identified in the SOA or an alternative date or the purchase order issuer may
cancel the purchase order with no liability or penalty. Notwithstanding the foregoing, the
purchase order issuer’s unqualified acceptance of the SOA shall be deemed to have occurred in the
event issuer fails to object to the SOA by written or electronic notice to RMI within 3 days
following receipt of such SOA. RMI shall use its best efforts to minimize such delay by working
reasonable overtime at its own expense. All purchase orders placed with RMI by Purchaser or the
Purchaser CM directly and all SOAs delivered by RMI shall be subject to the terms and conditions of
this MPA without specific reference hereto, and any terms and conditions set forth in or attached
to a purchase order or SOA that are inconsistent with or in addition to the terms and conditions of
this MPA shall be deemed void and of no force or effect.



2.3 Flexibility. RMI shall use commercially reasonable efforts to enable it to increase
or decrease production of any of the Products, and to manage inventory at the lead time component
or raw material level so as to reduce risk throughout the supply chain and increase flexibility and
scalability. [this needs to be strengthened]



2.4 Reschedules and Cancellations. Purchaser may cancel or reschedule purchase orders
solely as set forth in Exhibit B.



2.5 Purchaser CMs. Prior to RMI’s acceptance of a purchase order from any of the
Purchaser CMs identified on Exhibit C hereto, such Purchaser CM shall enter into a
bilateral master purchase agreement with RMI containing substantially the same terms and conditions
as are set forth herein. Purchaser agrees to use commercially reasonable efforts to cause each of
its Purchaser CMs to enter into such agreement with RMI. Notwithstanding the foregoing, in the
event RMI reasonably determines that one or more Purchaser CMs (whether already listed on
Exhibit C or proposed by Purchaser for addition thereto) poses a credit or performance risk
to RMI, then RMI at its option shall have the right to require Purchaser to guarantee such
Purchaser CM’s obligations under its master purchase agreement.



 


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3. PRICING





	3.1 Prices. RMI shall sell the Products to Purchaser and Purchaser CMs at the Product
Prices set forth in the applicable Product Schedule. Product Prices are in U.S. dollars and
do not include applicable Taxes or freight charges, if any.







	
3.2 Most Favored Nation. RMI hereby covenants to Aruba that, from and after the
Effective Date and throughout the Term, the Product Prices for each Product on an individual
basis will be no higher than the lowest prices offered by RMI to any customer worldwide
purchasing the same or lesser total aggregate unit volume of such Product on an annual basis
purchasing (a) the same or lesser total aggregate unit volume of such Product on an annual
basis, and (b) on payment and delivery terms no less favorable to the customer than those set
forth in Section 3.1 and 5.1, respectively, of this MPA. Notwithstanding the foregoing, RMI
shall have the right, exercisable in its sole discretion, to terminate the covenant set forth
in this Section 3.2 in the event the aggregate unit volume of Products purchased under this
MPA is less than seventy-five percent (75%) of the production forecast amounts (calculated on
an annualized basis) set forth in Section 4.1 below for two (2) or more consecutive quarters.
For purposes of this section 3.2, the Product price shall be deemed to include all Product
discounts, rebates, cooperative advertising programs and other similar programs provided by
RMI. Notwithstanding the foregoing, the covenant set forth in this Section 3.2 shall not apply
to the prices offered by RMI to any customer with whom RMI has entered into a bona fide
business agreement that is beyond an ordinary customary customer-supplier agreement (e.g., a
product development agreement) or with respect to which a material portion of such customer’s
purchase price for the Products consists of non-cash consideration.








	3.3 Payment Terms. RMI shall invoice Purchaser or the appropriate Purchaser CM with
each shipment. All payments are due within thirty (30) days after the date of RMI’s invoice
to Purchaser. All payments related to this agreement shall be in U.S. dollars. A service
charge of one percent (1%) per month will be charged to any invoice outstanding for more than
forty-five (45) days.






4. ROLLING FORECASTS




4.1 Monthly Forecasts. Purchaser shall provide RMI with a twelve (12) month non-binding,
rolling forecast of Purchaser’s (and each Purchaser CM’s) estimated requirements for Products, for
itself and its Subsidiaries, which shall be updated by Purchaser not less than monthly.



4.2 No Commitment. Purchaser will use its commercially reasonable best efforts to make its
rolling forecasts described above as accurate as possible. Notwithstanding the foregoing, these
rolling forecasts are for planning purposes only and do not constitute any commitment to purchase,
unless otherwise explicitly set forth in this MPA. No request for Products shall be binding on
Purchaser unless contained in a purchase order in compliance with the requirements of this MPA.
Purchaser shall not be required to purchase any minimum quantities, nor shall Purchaser be held
responsible for any restocking fees, bill backs or other costs or fees for not ordering any
estimated purchase volume.



4.3 Notice of Shortfall. RMI shall exercise its best efforts to timely manufacture
sufficient Products pursuant to Forecasts and shall provide Purchaser with as much notice as
reasonably
possible if it anticipates or has reason to believe that RMI’s output of the Products will not be
sufficient to meet all of Purchaser’s requirements for any period.



 


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5. SHIPMENT AND DELIVERY




5.1 Delivery. Delivery Dates shall be based on the Lead Time set forth in the Product
Schedule. RMI shall use reasonable commercial efforts to maintain a Lead Time of no longer than
twelve (12) weeks for all Products, unless otherwise agreed to by the parties in writing. Delivery
terms shall be FCA RMI’s shipping point, freight collect, per Incoterms 2000. Title will pass upon
delivery to the carrier at the point of shipment to the purchase order issuer and thereafter all
risk of loss shall be upon the purchase order issuer (without regard to which party pays for the
shipping costs).



5.2 Late Delivery. RMI will use best efforts to meet all Delivery Dates. Failure to
meet Delivery Dates will result in costly delays to Purchaser. Regardless of whether an order was
placed by Purchaser or Purchaser CMs, RMI shall notify Purchaser and, if relevant, all affected
Purchaser CMs as soon as practicable of any known or anticipated delays to the Delivery Date or any
circumstances that are likely to cause disruption in deliveries. In the event that RMI is unable
to deliver within ten (10) days of the Delivery Date, thereafter for each week of additional delay
RMI will pay a late fee to Purchaser, either directly or as a credit against outstanding amounts,
equal to one half of one percent (0.5%) of the aggregate purchase order price for such late
Products, not to exceed a total of five percent (5%) of such aggregate purchase order price.



5.3 Shipping Documents and Markings; Packing.



5.3.1 Documentation. Shipping documentation shall be complete and accurate in all
material respects and include all required material information including commercial invoice,
packing list and all required applicable export and transportation documents and declarations. An
itemized packing list must accompany each shipment and shall prominently identify (i) the purchase
order number, (ii) the description, part number and quantity of the Products shipped, (iii) the
number of shipping containers in the delivery and (iv) the waybill/bill of lading number.



5.3.2 Packaging. RMI will package all goods in a manner which is (i) in accordance
with good commercial practice, (ii) acceptable to common carriers for shipment, and (iii)
reasonably adequate to provide for safe arrival of the Products under normal conditions at the
destination.



5.3.3
Markings. RMI will mark all containers with necessary lifting, handling and
shipping information, country of origin, purchase order numbers, date of shipment, and the names of
the consignee and consignor.



6. PRODUCT INSPECTION AND QUALITY




6.1 Inspection. Purchaser reserves the right to notify RMI of any shipment quantity
discrepancy. In addition, Products shall be subject to inspection and testing for (i)
conformance to Product Specifications, (ii) warranty defects and (iii) any form of damage.


 


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6.2 Rejection. In case of any quantity discrepancy or if any Product is found not to
conform to the Specifications, is defective in materials or workmanship in violation of the limited
warranty set forth in Section 10.3, or is otherwise damaged (“Non-Conforming Product”), such
Product may be rejected and the rejecter will (i) notify RMI in writing of the basis of such
rejection and (ii) comply with the RMI’s Return Materials Authorization (“RMA”) process for the
return of the Non-Conforming Products. Notice of any quantity discrepancy shall be provided to RMI
within five (5) business days following the date the Products are received by Purchaser. Notice of
the basis of any other rejection described above shall be provided to RMI within forty-five (45)
days following the date the Products are received by Purchaser.



6.3 Failure Analysis. At Purchaser’s request, RMI will perform a failure analysis on all
returned Products suspected of being defective in accordance with RMI’s established RMA process.
RMI will use commercially reasonable efforts to identify the root cause and, if appropriate,
implement a corrective action plan for all failure analysis requests in a timely manner. In
accordance with the RMA process, RMI will provide to Purchaser a preliminary analysis, intermediate
updates and a final written report specifying the reason for failure
of any Non-Conforming Product.
This obligation will continue for the duration of the applicable Product Warranty.



6.4 Quality Standards. RMI shall provide and maintain in accordance with good industry
standards an inspection/quality control system covering the Products and shall tender to Purchaser
for acceptance only Products that have been inspected in accordance with the inspection system.



7. PRODUCT CHANGES/DISCONTINUANCE




7.1 Product Change. RMI shall notify Purchaser in writing of any and all proposed changes
to any Specifications for any Product that materially affect form, fit or function. Such notices
shall be delivered at least ninety (90) days prior to the date such change is proposed to be
incorporated into the Product. If upon evaluation of the proposed changes, Purchaser, in its sole
discretion, determines that the changes would render Purchaser’s products to no longer operate or
to be adversely affected in form, fit and function or material delay of introduction of its
products, RMI will provide Purchaser with additional Products utilizing the old design to fulfill
its needs for up to twelve (12) months from the date of Purchaser’s evaluation; provided, however,
that the last Delivery Date for such Products shall not be later than the last day of such twelve
(12) month period.



7.2 Product Discontinuation. In the event RMI intends to discontinue the manufacture
and/or sale of a Product, RMI shall give at least twelve (12) months prior written notices to
Purchaser for a single-source Product and six (6) months prior written notice to Purchaser for a
multiple-source Product. During such period (“Discontinuance Period”), Purchaser and
Purchaser CMs may place purchase orders for such Product pursuant to this Agreement; provided,
however, that the last Delivery Date for such Product shall not be more than six (6) months after
the end of such Discontinuance Period. Throughout the Discontinuance Period, RMI shall reasonably
assist Purchaser in identifying alternative products or sources for the affected Products’
functionality.



8. OWNERSHIP OF SOFTWARE; GRANT OF RIGHTS




8.1 Ownership. RMI and its licensors shall retain ownership of all Intellectual Property
embodied in the Software. No right, title or interest in any Intellectual Property shall pass from
RMI to Purchaser or Purchaser to RMI unless first duly authorized by both parties in writing.
Nothing in this agreement or the commercial relationship of the parties shall be construed as
granting either party any Intellectual Property rights of the other.



 


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8.2 Software License. RMI hereby grants to Purchaser and Purchaser’s end-users a non-exclusive, perpetual, worldwide, royalty-free license, with the right to sublicense and authorize
the granting of sublicenses, to use, make and have made, import, reproduce and have reproduced,
distribute, sell and offer to sell the Software as incorporated into, or in connection with, or for
use with, the Product, by any means now known or developed in the future, through multiple tiers of
distribution by resellers to end users or directly to end users. Except as expressly set forth
herein or as permitted by law, Purchaser shall not (i) modify, reproduce, copy, reverse engineer,
decompile or disassemble all or any portion of the Software, or (ii) create derivative works
thereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MPA, ALL SOFTWARE IS PROVIDED “AS IS”
AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY STATUTORY
WARRANTIES OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.



8.3 Upgrades. All bug fixes, revisions to and upgrades of the Software which RMI generally
makes available to its customers at no charge, will be made available to Purchaser at no charge.
All other upgrades or Product enhancements will be offered to Purchaser on mutually agreeable terms
and conditions.



9. SUPPORT SERVICES




For a period of at least three (3) years after the date of shipment by RMI for each Product
ordered, delivered and paid for, including discontinued Products, RMI agrees to provide reasonable
technical assistance as set forth in Section 9.1, functionally equivalent replacement Products
(excluding discontinued Products), including emergency replacement Products pursuant to Section
9.2, repair services, and failure analysis services as set forth in Section 6.3. Products
requiring support shall be returned pursuant to RMI’s RMA process.



9.1 Technical Support. Upon request, RMI will provide in electronic or other reasonably
acceptable form all bug notes or other documentation defining the relevant information, symptoms,
solutions or workarounds for identified Product problems, including accurate records of Product
deficiencies. During the Term of this MPA, RMI will provide such support at no charge.



9.2 Product Replacement. At Purchaser’s option, RMI shall either refund the purchase price
in full or shall ship emergency replacement Products for Products that have been validly submitted
to RMI under the warranty provisions of this Agreement in accordance with RMI’s established RMA
process as soon as reasonably possible and RMI will notify the requester of the estimated delivery
date for such replacement. All shipping and insurance charges for return of non-conforming Product
shall be at RMI’s expense, provided, however, that if the returned Product is reasonably
demonstrated by RMI to be conforming, then Purchaser will reimburse RMI for the actual and
reasonable shipping charges and all purchase price refunds, as
applicable. Replacement Product
shall meet all Specifications and be functionally equal to or better than the returned unit.
Product replacements effected during the warranty period shall be warranted, as provided below, for
the remainder of the Product warranty or for one hundred eighty (180) days from the date of
replacement, whichever is longer.



 


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10. REPRESENTATIONS AND WARRANTIES




10.1 General Warranties. Each of RMI and Purchaser represents and warrants to the other
party that: (i) it has the full authority to enter into this MPA and to carry out its obligations
under this MPA, and (ii) its compliance with the terms and conditions of this MPA will not violate
any applicable federal, state or local laws, regulations or ordinances or any third party
agreements of which RMI or Purchaser, respectively, is aware, that are in effect at the time of
manufacture of a particular Product.



10.2 Open Source Warranty. RMI represents and warrants that, with respect to the Open
Source Technology, RMI has complied with all requirements of those Open Source Technology
license(s) pursuant to which it obtained source code which may have been used to develop, and/or is
contained in, the Product and that the Product as delivered to Purchaser shall be compliant with
all such Open Source Technology license requirements.



10.3 Product Warranty.



10.3.1 Limited Warranty. RMI represents and warrants that during the Warranty Period (i)
the Products, when shipped, will be new and unused, (ii) it shall convey good and clear title to
the Products, free and clear of all liens and encumbrances, (iii) at the Effective Date and on the
date each Product is first shipped to Purchaser, RMI is not aware of any material claims for
infringement of Intellectual Property rights with respect to any of the Products, (iv) the Products
will comply in all respects with the applicable Specifications and applicable ULA or CSA
requirements, (v) the Products, as used in accordance with industry standards and any written
instructions provided by RMI to Purchaser are safe for normal use, are non-toxic and present no
abnormal hazards to persons or the environment, provided however, that for so long as RMI is RoHS
5 of 6 compliant, the presence of lead and other toxic substances in the Products shall not be deemed
a violation of the limited warranty set forth in this clause (v), and (vi) the Products will be
free from defects in materials, design and workmanship. The Warranty Period for a Product shall be
one (1) year following the date of delivery to Purchaser. During the Warranty Period, at
Purchaser’s option, RMI shall either refund the purchase price in full or RMI will, at its expense,
replace with new and unused Products all Products not conforming to the requirements of this
Section 10.3 which are returned to RMI in accordance with RMI’s established RMA process,
transportation charges prepaid, and which are, after examination, disclosed to the satisfaction of
RMI to be defective. All shipping and insurance charges for return of non-conforming Product
shall be at RMI’s expense, provided, however, that if the returned Product is reasonably
demonstrated by RMI to be conforming, then Purchaser will reimburse RMI for the actual and
reasonable shipping charges and all purchase price refunds, as applicable. Replacement Product
shall meet all Specifications and be functionally equal to or better than the returned unit.
Product replacements effected during the warranty period shall be warranted, as provided below, for
the remainder of the Product warranty or for one (1) year from the date of replacement, whichever
is longer.



Any Product which has been replaced by RMI under the terms of this limited warranty shall be
shipped to a location designated by Purchaser or Purchaser CMs as soon as practicable after
receipt of Purchaser’s request for replacement.



10.3.2 Exceptions and Limitations. This limited warranty does not extend to any Products
which have been (i) misused or abused, (ii) altered or modified, (iii) serviced by anyone other
than an authorized representative of RMI, Purchaser or a party authorized jointly by RMI and
Purchaser, or (iv) damaged due to accident or act of God or by any other event reasonably beyond
the control of RMI. This limited warranty does not extend to any Products not purchased by
Purchaser or Purchaser CMs directly from either RMI or an authorized representative or distributor
of RMI.



 


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10.4 Epidemic Failure. If during the warranty period any Product shows evidence of an
Epidemic Failure, as defined herein, both parties shall meet to determine if there in fact is an
Epidemic Failure and if so to prepare and propose a Corrective Action Plan with respect to such
Product within ten (10) working days of such notification. The Corrective Action Plan will address
implementation, procedure milestones, and roles and responsibilities for remedying such Epidemic
Failure(s). An extension of this time frame is permissible upon mutual written agreement of the
parties. For repetitive failures not meeting the criteria of Epidemic Failure, the parties shall
meet within ten (10) business days of the occurrence of such repetitive failures to define the
roles, responsibilities, and an implementation plan for remedying such repetitive failures (which
may include postponement of manufacturing services).



10.4.1 For the purpose of this Agreement, only major functional and mechanical defects caused by
deficiencies in RMI’s workmanship are considered Epidemic Failures. Functional Dead on Arrival
(“DOA”) shall be defined as any Product that during the test, installation or upon its first use
fails to operate per the relevant Specifications. Mechanical DOA is defined as any Product
containing one or more major defects that would make the Product unfit for use or installation. An
Epidemic Failure shall not include failures due to Specifications, design, test, tooling,
Materials, documentation or instruction as provided or directed by Aruba. Products that shall be
excluded in the determination of an Epidemic Failure are:




(a) Products which have been misused, modified, damaged, placed in an unsuitable
physical or operating environment or maintained improperly or caused to fail by any
product or service not supplied by RMI or to any Products which have been subjected
to any repair not authorized in writing in advance by RMI; or




(b) Products with any defect caused by Aruba or a third party or by an error or
omission or design or other fault in any Aruba Information or in any other drawings,
documentation, data, software, information, know-how or Materials provided or
specified by the Aruba; or




(c) prototypes, pre-production or pilot versions of Products which will be supplied
“as is” without warranty of any kind.



10.4.2 Products may be either sampled or, at Aruba’s option, 100% audited at Aruba premises or
Aruba’s locations. If Products are sampled, the data must have a targeted ninety percent (90%) or
better statistical confidence.



10.4.3 A situation shall be considered an Epidemic Failure if:




(a) the failure is due to the same root cause and which is warrantable under
10.3 and failure reports or statistical samplings show that five (5%) percent or
more of Products shipped on a single Purchase Order or twenty (20%) percent or more
of Products shipped during any six (6) consecutive months contain a potential safety
hazard (such as personal injury or death, fire, explosion, toxic emissions, etc.),
or exhibit a highly objectionable symptom (such as emissions of smoke, loud noises,
deformation of housing) or



(b) Product DOA failures exceed five (5%).



 


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10.4.4 Upon notification of the Epidemic Failure to RMI, Aruba shall have the right to postpone all
or part of the shipments of unshipped Products, by giving written notice of such postponement to
RMI, pending correction of the Epidemic Failure. Such postponement shall temporarily relieve RMI of
its shipment liability and Aruba of its shipment acceptance liability.
In the event that RMI develops a remedy for the defect(s) that caused the Epidemic Failure and
Aruba agrees in writing that the remedy is acceptable, RMI shall:




10.4.4.1 incorporate the remedy in affected unshipped Products, and




10.4.4.2 ship all subsequent Products incorporating the required modification
correcting the defect(s) at no additional charge to Aruba; and




10.4.4.3 repair and/or replace Products affected by the Epidemic Failure. In the
event that the Aruba reasonably incurs direct incremental costs due to such repair
and/or replacement, as agreed in advance with RMI, including but not limited to
labor and shipping costs, RMI shall reimburse Aruba for such costs. RMI shall bear
risk of in transit loss and damage for such repaired and/or replaced material.



10.4.5 RMI and Aruba shall mutually agree in writing as to the remedy’s implementation schedule.
RMI shall use its best commercial efforts to implement the remedy in accordance with the
agreed-upon schedule.



NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED WITH RESPECT TO ANY PRODUCT OR OTHER ITEMS
DELIVERED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY STATUTORY WARRANTIES OR ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE LIMITED
PRODUCT WARRANTY AND REMEDIES FOR BREACH OF SUCH WARRANTY STATED IN THIS SECTION ARE EXCLUSIVE. NO
INDIVIDUAL IS AUTHORIZED TO GIVE ANY OTHER WARRANTY ON BEHALF OF RMI. RMI’S LIABILITY UNDER SECTION
10.3 WILL BE LIMITED TO THE AGGREGATE PRODUCT PRICE OF THE NON-CONFORMING PRODUCTS. RMI’S LIABILITY
UNDER SECTION 10.4 WILL BE LIMITED TO THE GREATER OF TWO MILLION DOLLARS ($2,000,000) OR THE
AGGREGATE PRODUCT PRICE OF THE NON-CONFORMING PRODUCTS.



11. INDEMNIFICATION




11.1 Indemnification by RMI. RMI will indemnify, defend, and hold harmless each of
Purchaser and its officers, directors, employees, successors and assigns (collectively the
“Indemnified Parties”) from and against all claims, suits, demands and actions brought against the
Indemnified Parties or tendered to the Indemnified Parties for defense and/or indemnification
(collectively “Claims”), and for all resulting damages, losses, costs, and liabilities (including
reasonable attorney and professional fees) (collectively “Losses”) that result or arise from
Claims, which in whole or in part, directly or indirectly allege that one or more Products, or any
part thereof, infringe, misappropriate, or violate any Intellectual Property rights of any third
party. RMI also will indemnify, defend, and hold harmless each of the Indemnified Parties from and
against all Claims, and for all resulting Losses that result or arise from Claims, which in whole
or in part, directly or indirectly allege that any of the Products caused any bodily injury, death
or injury to property, that is caused by (i) negligence or wrongful acts of RMI, its agents or
employees; (ii) defects in the workmanship, materials or design of the Product
provided by RMI; (iii) any Epidemic Failure of the Products; or (iv) RMI’s failure to comply with
federal, state or local laws, rules or regulations.



 


10









 





11.2 Continued Use. Upon the assertion of a Claim under Section 11.1 (i), RMI shall, at
its sole expense, exercise the first of the following remedies that is practicable: (i) obtain a
license that allows the continued use, manufacture, import, support, sale and distribution of the
Products as permitted under this MPA; or (ii) replace or modify the Products so as to be non-infringing. In the event that RMI cannot achieve either (i) or (ii) above on commercially
reasonable terms, RMI shall refund to Purchaser the Product Price of Products returned to RMI
together with the transportation costs for such return by Purchaser.



11.3 Notification and Control. Purchaser will promptly notify RMI, in writing, of any Claim
for which Purchaser believes that it is entitled to indemnification (provided that Purchaser’s
failure to provide such notice will relieve RMI of its indemnification obligations only if and to
the extent that such failure prejudices RMI’s ability to defend the Claim). Purchaser agrees to
provide RMI with: (a) sole control of the defense of the lawsuit provided RMI acts responsibly in
defending the Claim, (b) sole control of the negotiation and settlement of the Claim so long as
such settlement requires no payment by Purchaser to any party, no restriction on Purchaser’s use of
the Products, and no admissions against Purchaser’s interest, and (c) reasonable information and
assistance (at RMI’s expense) in the defense or settlement of the Claim. RMI agrees to (i) use
counsel reasonably acceptable to Purchaser, (ii) keep Purchaser informed of all material
developments in the lawsuit and Claim, and (iii) subject to RMI’s rights set forth in the preceding
sentence, allow Purchaser to participate, at Purchaser’s own expense, in the defense of the Claim.
Purchaser may employ counsel reasonably acceptable to RMI, at Purchaser’s own expense, with respect
to any such Claim (provided that if counsel is employed due to a conflict of interest or because
RMI does not assume control, RMI will bear such expense). RMI shall have no liability for any
costs, losses or damages resulting from any settlement or compromise incurred or made by Purchaser
without RMI’s prior written consent.



11.4 Exceptions to RMI’s Indemnity. RMI shall have no obligation under Section 11.1 or 11.2
to the extent any Claim is caused by (i) use of the Product in combination with any other products
not provided by RMI or in a manner not specified by RMI, if the infringement would not have
occurred but for such combination; (ii) any material alteration or modification of the Product not
undertaken or authorized by RMI (or undertaken pursuant to a specific request from Purchaser), if
the infringement would not have occurred but for such material alteration or modification (the
parties agree that incorporation of the Product into a Purchaser product shall not be deemed a
material alteration or modification of the Product); or (iii) Purchaser’s failure to substantially
comply with written instructions provided by RMI identified by RMI as necessary to render the
Product non-infringing and which would have rendered the Product non-infringing, provided that a
period of sufficient duration is given to Purchaser to enable it to implement the written
instructions.



11.5 Limitations. This Section 11 contains Purchaser’s sole and exclusive remedy for any
and all Claims relating to the Products. RMI’s liability under this Section 11 will be limited to
the greater of (a) the aggregate amount actually paid by Purchaser to RMI for the Products subject
to the Claim, or (b) two million dollars ($2,000,000). RMI will have no liability to Purchaser
under this Section with respect to (i) any Products not purchased by Purchaser or on its behalf by
Purchaser CMs directly from either RMI or an authorized representative or distributor of RMI, or
(ii) any Claim brought more than four (4) years after the expiration or termination of this
Agreement (or the prior expiration of any applicable statute of limitation).





 


11












 




12. CONFIDENTIALITY




Upon execution hereof, the parties shall continue to comply with the provisions of the
Non-Disclosure Agreement executed by RMI and Purchaser on November 2, 2005 (the “NDA”). The parties
shall treat the terms and conditions of this MPA as Confidential Information (as such term is
defined in the NDA). Without limiting the foregoing, RMI acknowledges that information related to
this MPA shared by Purchaser or Purchaser CMs with RMI are the Confidential Information and trade
secrets of Purchaser.



13. LIMITATION OF LIABILITY




NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MPA, EXCEPT FOR RMI’S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 11 AND FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 12,
UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR
ASSIGNS BE LIABLE TO ANOTHER PARTY AND ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR
ASSIGNS UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR
EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
COSTS OR DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS MPA, WHETHER
OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR SHOULD HAVE BEEN AWARE OF SUCH DAMAGE.
THIS SECTION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR
PHYSICAL DAMAGE TO TANGIBLE PROPERTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MPA, IN NO
EVENT SHALL RMI BE LIABLE FOR ANY DAMAGES RELATING TO OR RESULTING FROM THE USE OF THE PRODUCTS IN
SYSTEMS, EQUIPMENT OR OTHER GOODS USED FOR AVIATION, MEDICAL, NUCLEAR OR ULTRA HAZARDOUS PURPOSES
OR FOR ANY DAMAGES OWED TO THIRD PARTIES RELATING TO TECHNOLOGY NOT PROVIDED BY RMI. LIABILITY FOR
DAMAGES SHALL BE LIMITED AND EXCLUDED AS SET FORTH HEREIN, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED
FOR IN THIS MPA FAILS OF ITS ESSENTIAL PURPOSE.



14. INSURANCE




RMI shall, at its own expense and at all times during the term of this MPA and for at least one (1)
year after the expiration of this MPA, maintain in effect the insurance and minimum limits of
coverage as designated below together with any other insurance required by law in any jurisdiction
where RMI provides Products and/or services under this MPA. Without limiting the foregoing, such
insurance shall include (i) general liability insurance covering all operations by or on behalf of
RMI arising out of or connected with this MPA and providing coverage for bodily injury, property
damage and products liability, with limits of not less than the equivalent of US$1,000,000 per
occurrence or per claim, and (ii) errors and omissions insurance (also known as professional
liability or professional indemnity insurance) with limits of not less than the equivalent of
US$1,000,000 per occurrence or per claim. Certificates of Insurance or other evidence of the
coverages required above shall be furnished by RMI to Purchaser upon Purchaser’s request.


 


12









 





15. TERM AND TERMINATION




15.1 Term. Unless terminated earlier as provided herein, this MPA shall have an initial
term of three (3) years from the Effective Date (the “Initial Term”) and shall automatically renew
for additional periods of one (1) year each (the “Extended Term”, and together with the Initial
Term, referred to herein collectively as the “Term”), unless written notice of non-renewal is
provided by Purchaser or RMI in accordance with Section 17.2 at least sixty (60) days prior to the
expiration of the Initial or any Extended Term. Notwithstanding the foregoing, following any
notice of non-renewal of this MPA given by RMI hereunder, Purchaser and Purchaser CMs may continue
to place purchase orders during the Discontinuance Period set forth in Section 7.2 above for any
Products purchased under this MPA during the six (6) month period immediately preceding delivery
of such notice.



15.2. Termination for Breach. Either party may terminate this MPA for material breach by
the other party of its obligations hereunder at a time upon written notice to the other party. The
breaching party shall have forty-five (45) days after notice to cure any breach and avoid
termination.



15.3
Termination for Convenience. Either party may terminate this MPA at any time for any
reason by providing the other party with not less than one year prior written notice. Any
unfilled purchase orders pending on the date of such termination shall be deemed cancelled, and
Purchaser and RMI hereby waive any and all claims against each other in connection with the
cancellation of such purchase orders. Purchaser may also terminate this MPA in accordance with the
force majeure provisions set forth in Section 17.7 upon RMI’s failure to comply with any of the
material provisions of this MPA which failure is not remedied during the ninety (90) days (or other
extended period as may be agreed to by the parties) following written notice to Purchaser of such
failure.



15.4 Termination for Insolvency. Either RMI or Purchaser may terminate this MPA upon
written notice to the other party upon the occurrence of any one of the following events (each, an
“Insolvency Event”): (i) a receiver is appointed for the other party or its property; (ii) the
other party makes a general assignment for the benefit of its creditors; (iii) the other party
commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s
relief law, which proceedings are not dismissed within sixty (60) days; or (iv) the other party is
liquidated or dissolved or has ceased business operations.



15.5 Change in Control. In the event of any Triggering Event, as defined in Exhibit C
hereto, Purchaser may, at its sole discretion, terminate this Agreement and secure its supply as
set forth in the attached Exhibit C.



15.6
Survival; Support After Termination. Sections 1, 8.1, 8.2, 9, 10, 11, 12, 13, 15, and
17 and all end user licenses shall survive termination or expiration of this MPA; provided that the
applicability of any such surviving sections to Purchaser CMs as set forth in Section 2.5 shall
also survive termination or expiration of this MPA.



15.7 Return of Materials Upon Termination. On or before ten (10) days after the termination
of this Agreement: (i) RMI shall return to Purchaser all Purchaser Confidential Information and
other Purchaser property in RMI’s possession, and (ii) Purchaser shall return to RMI all RMI
Confidential Information and RMI property in Purchaser’s possession.


 


13









 





16. COMPLIANCE WITH LAWS; IMPORT/EXPORT




16.1 Compliance with Laws. Each of RMI, Purchaser and the Purchaser CMs shall comply with
all applicable laws, regulations and ordinances in effect at the time of manufacture and sale of
each of the Products. Upon any party’s reasonable request, the other parties hereto agree to
provide reasonable assistance to the requesting party to facilitate compliance with such laws.



16.2 Import and Export. RMI shall provide Purchaser with information and
assistance as may be reasonably required in connection with executing import, export,
sales and trade programs, including but not limited to, manufacturer’s affidavits,
harmonized tariff schedule, export control classification number, qualification
information (e.g. origin) and U.S. Federal Communications Commission’s identifier when
applicable. Purchaser shall comply with all relevant import and export laws and
regulations of the United States and foreign governments (“Export Laws”) to ensure that
neither the Products nor any Purchaser products in which the Products are incorporated are
exported directly or indirectly in violation of Export Laws, or are used or intended to be
used for any purpose prohibited by the Export Laws.



16.3 Compliance with Environmental Laws. RMI, Purchaser and the Purchaser CMs
shall comply with all applicable environmental federal, state and local laws,
regulations and ordinances, including but not limited to the laws and regulations of the
United States, relating to this MPA and the Products provided hereunder.



17. GENERAL



17.1 Assignment. Except as set forth below, RMI may not assign or transfer this
MPA, in whole or in part, or delegate in any material respect its obligations hereunder,
in each case other than to a direct or indirect wholly-owned subsidiary of RMI, without
the prior written consent of Purchaser. Except as set forth below, Purchaser may not
assign or transfer this MPA, in whole or in part, or delegate in any material respect its
obligations hereunder, in each case other than to a direct or indirect wholly-owned
subsidiary of Purchaser, without the prior written consent of RMI. Any such attempt to
assign or transfer or delegate without such consent is void. For purposes of this Section,
any transfer by sale, merger or other working combination of ownership of or control over
more than fifty percent (50%) of the voting securities or control of or party hereto shall
constitute an assignment. Notwithstanding the foregoing, Purchaser may assign this MPA
without RMI’s consent to the acquirer of or successor to all or
substantially all of
Purchaser’s business or assets, respectively.



17.2 Notices. All notices shall be personally delivered, delivered by facsimile
transmission, delivered by a major commercial rapid delivery courier service or mailed by
certified or registered mail, return receipt requested, to either party as provided below
or such other address as such party may provide by notice pursuant to this Section. Notice
shall be effective upon the earlier of (i) receipt or (ii) twenty-four (24) hours after
submission by any such method.





	 	 	 
	Aruba Wireless Networks, Inc.

	 	Raza Microelectronics, Inc. 
	1322 Crossman Avenue

	 	18920 Forge Drive
	Sunnyvale, CA 94089

	 	Cupertino, CA 95014
	Attn: Vice President, Operations

	 	Attn: General Manager, Network Infrastructure

     Solutions

















	 	 	 
	with a copy to:

	 	with a copy to:
	 
	Aruba Wireless Networks, Inc.

	 	Raza Microelectronics, Inc.
	1322 Crossman Avenue

	 	18920 Forge Drive
	Sunnyvale, CA 94089

	 	Cupertino, CA 95014
	Attn: General Counsel

	 	Attn: General Counsel
	Fax: (408) 227-4550

	 	Fax: (408) 434-5585








 


14









 






17.3 Controlling Law and Jurisdiction. All actions under this MPA related to the
purchase and sale of Products hereunder shall be governed, controlled, interpreted and enforced
by and under the United Nations Convention on Contracts for the International Sale of Goods.
All other matters related to the interpretation and enforcement of this MPA shall be governed
by the laws of the State of California and the United States, without regard to the conflict of
laws provisions thereof. The exclusive jurisdiction and venue of any action with respect to the
subject matter of this MPA shall be the state courts of the State of California for the County
of Santa Clara or the United States District Court for the Northern District of California and
each of the parties hereto submits itself to the exclusive jurisdiction and venue of such
courts for the purpose of any such action.



17.4 Waivers and Amendments. No failure or delay by either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial waiver have an effect on any other right, power or privilege. Any waiver, amendment or
other modification of any provision of this MPA will be effective only if in writing signed by
the parties.



17.5 Severability. If any provision of this MPA is found unenforceable or invalid
under any applicable law or judicial or administrative decision, only that provision will be
affected. This MPA shall remain in effect and such unenforceable or invalid provision shall be
modified or interpreted so as to best accomplish its objective. WITHOUT LIMITING THE FOREGOING,
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS MPA WHICH PROVIDES
FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS
INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH
PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN
EFFECT.



17.6 Relationship of the Parties. The parties acknowledge that they are independent
contractors and no other relationship, including partnership, joint venture, employment,
franchise, master/servant or principal/agent is intended by this MPA. Neither party shall have
the right to bind or obligate the other.



17.7 Force Majeure. Neither of the parties shall be considered in default of
performance under this MPA to the extent that performance of such obligations is delayed or
prevented by fire, flood, earthquake or similar natural disasters, riot, war, terrorism or
civil strife, to the extent such default is beyond the reasonable control of such party.
Notwithstanding the foregoing, in the event RMI fails to deliver Products due to such causes,
Purchaser may terminate this MPA in whole or in part after thirty (30) days prior written
notice following RMI’s failure to deliver for ninety (90) days due to the force majeure event.




 


15









 





17.8 Dispute Resolution. The parties shall endeavor to amicably resolve any disputes
arising from the activities undertaken in the course of performing or fulfilling this MPA. The
foregoing shall not preclude either party from seeking injunctive relief.



17.9 Attorneys Fees. In addition to any other relief awarded, the prevailing party in any
action arising out of this Agreement shall be entitled to its reasonable attorneys’ fees and costs.



17.10 Third Party Beneficiaries. Unless expressly provided, no provisions of this MPA
are intended or shall be construed to confer upon or give to any person or entity other than
Purchaser, RMI and Purchaser CMs any rights, remedies or benefits under or by reason of this MPA.



17.11 Limitations on Use. All Products are sold hereunder for standard commercial
applications only and are not intended for use in any life-support devices or equipment or in any
other inherently dangerous activity. Purchaser agrees that RMI shall not be liable for any claims,
losses, costs or liabilities arising from such use if Purchaser or its distributors or customers
use the Products for such non-standard commercial applications.



17.12 English Language. The original of this MPA has been written in English, and such
version shall be the governing version of the MPA. Each party waives any right it may have, if any,
under any law or regulation to have this MPA written in a language other than English.



17.13 Entire Agreement. Together with the NDA and any other applicable non-disclosure
agreements, this MPA and its exhibits contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements relating thereto, written or oral,
between the parties.



17.14 Signatures and Counterparts. This MPA and any Exhibit hereto may be executed in two
counterparts, each of which shall be an original and together which shall constitute one and the
same instrument. Signatures by facsimile shall be binding.



17.15 Notice of Change of Manufacturing Location. RMI shall supply Purchaser written
notice prior to changing the manufacturing location for Products or implementing major
manufacturing process changes in the Products.



IN WITNESS WHEREOF, the parties hereto have executed this MPA as of the Effective Date by persons
duly authorized.



	 	 	 	 	 	 	 	 	 
	RAZA MICROELECTRONICS, INC.	 	ARUBA WIRELESS NETWORKS, INC.	 	 
	 
	By:

	 	 L. William Caraccio
	 	By:
	 	 Alexa King	 	 
	 

	 	 

(print)
	 	 	 	 

(print)
	 	 
	 	 	/s/ L. William Caraccio	 	 	 	/s/ Alexa King	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	(signature)
	 	 	 	(signature)	 	 
	

	 	Title: VP
	 	
	 	Title: Senior Dir., Legal	 	 
	 

	Date:

	 	January 16, 2006
	 	Date:
	 	January 18, 2006	 	 
	 

	 	 

	 	 	 	 

	 	 







 


16











 




EXHIBIT A




PRODUCT SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RMI	 	Purchaser	 	 	RMI	 	 	Purchaser	 	 	 	 	 	 	Product	 	 	Custom	 	 	Lead	 
	Part #	 	Part #	 	 	Spec. #	 	 	Spec. #	 	 	Description	 	 	Price	 	 	Product	 	 	Time	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







	1. EFFECTIVE DATE







The parties agree that the Product Schedule set forth above shall take effect under the
MPA as of       .




	2. CONFLICT WITH MPA







The terms and conditions of the MPA shall govern this Product Schedules unless specific
alternative terms are set forth above. In the event of any conflict or inconsistency
between this Product Schedule and the MPA, the terms in this Product Schedule will apply.




	3. SIGNATURES AND COUNTERPARTS







This Product Schedule may be executed in two counterparts, each of which shall be an
original and together which shall constitute one and the same instrument. Signatures by
facsimile shall be binding.



The parties hereto have executed this Product Schedule intending it to be incorporated into Exhibit
A of the MPA between RMI and Purchaser.



	 	 	 	 	 	 	 	 	 
	RAZA MICROELECTRONICS, INC.	 	 	 	ARUBA WIRELESS NETWORKS, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	By:	 
	 	Name: 

	 

	 	 	 	 	Name: 
	 
 
	 

	 	 
	 	 	 	 	 	 
	 	Title: 

	 	 	 	 	 	Title: 	 
	 

	 	 
	 	 	 	 	 	 
	 
	Date: 

	 	 	 	 	 	Date: 	 	 
	 

	 
	 	 	 	 	 







 


Exhibit A












 




EXHIBIT B 




RESCHEDULES AND CANCELLATIONS




The terms of this Exhibit B are in addition to and not in lieu of the terms the MPA.



1. Reschedules. Upon notice to RMI, Purchaser may reschedule all or a portion of a
purchase order for the Products at no charge as follows:




	 	 	 
	Number of Days	 	 
	From Original	 	Right to
	Delivery Date	 	Reschedule
	 
	 	 
	0-30 days

	 	No Reschedules
	 
	 	 
	31-60 days

	 	Up to four (4) Reschedules, provided in each case that
delivery is within thirty (30) days from original scheduled
Delivery Date, and with an allowable increase of up to 25% of the purchase order amount, not to exceed 500 devices

	 
	 	 
	61 days or more

	 	Unlimited Reschedules






2. Cancellation. Purchaser may cancel all or a portion of a purchase order as follows:



2.1 Standard Product





At any time prior to the original Delivery Date, Purchaser, for its own convenience, may
notify RMI in writing of its intent to cancel an order for
Standard Products, as follows:



	 	 	 
	Number of Days	 	 
	From Original	 	Right to
	Delivery Date	 	Cancel
	 
	 	 
	0-30 days

	 	No Cancellations (100% of Product Price charged)
	 
	 	 
	31-60 days

	 	Cancelable, with 40% restocking charge
	 
	 	 
	61 days or more

	 	Unlimited Cancellation Right





 


Exhibit B-1









 





2.2 Custom Products



2.2.1 If at any time prior to the applicable original Delivery Date, Purchaser needs to cancel all
or a portion of a purchase order for Custom Product, RMI shall use commercially reasonable efforts
to stop all work and cause its subcontractors to stop all work related to the cancelled orders. In
each such case, Purchaser shall compensate RMI for:




(i) 100% of the Product Price for all Products completed which have been delivered, are in
transit or are available for delivery at the time notice of termination is given; and



(ii) With respect to WIP or raw materials for any open purchase orders, RMI’s actual costs
incurred for (a) components for the orders, (b) reasonable costs for manufacturing operations
completed at the time of cancellation for the terminated portion of the orders; and (c) reasonable
cancellation charges and penalties from RMI’s vendors for the terminated portion of the orders.



(iii) Upon payment of RMI’s claim, Purchaser shall be entitled to all work and materials paid
for by Purchaser and shall provide to RMI instructions for material disposition. Materials which
are shipped to Purchaser shall be FCA RMI’s factory, all at Purchaser’s expense.


 


Exhibit B-2









 





EXHIBIT
C


SECURITY OF SUPPLY




1. Purpose; Cooperation. The purpose of this Exhibit is to minimize for Aruba the
risk of
interruption of its supply of Product for use in Wireless Infrastructure Products at
quantities, at a quality, and at prices and terms substantially equivalent to those set forth
in the MPA, notwithstanding the occurrence of any Triggering Condition. RMI agrees to
use its commercially reasonable efforts to ensure that such purpose is achieved and to
fully cooperate with Aruba in securing the know-how, materials and rights necessary to
achieve that purpose.



2. Definitions.



2.1. “Field of Use” means manufacture, test, support, sale and distribution of Wireless
Infrastructure Products following occurrence of a Triggering Event.



2.2.
“Intellectual Property Rights” means all rights under patents, patent applications,
copyrights, mask work rights, trade secrets and know how, whether owned by RMI or
licensed to RMI.



2.3.
“Manufacturing Materials” means the bill of materials for each Product, and all
drawings, schematics, RTL and other synthesizable netlists, gate level netlists, GDSII
databases, mask sets, pinout diagrams, mechanical drawings and specifications of any
custom or semicustom package; software compilers and software code loaded on or used
in the operation, testing or support of the Product (such software to be in both object and
readable source form), documentation, test and validation programs and suites, all in their
most current form used for any and all available production versions of Product, all in
English in a form readable and usable by the Qualified Company.



2.4. “Change of Control” of RMI means a change, whether by voting agreement, by
alteration of the rights, preferences or privileges of the shareholders of RMI, or other like
mechanism, or through a single or related series of transactions, such that immediately
thereafter an Aruba Competitor holds ownership or voting control of more than fifty
percent (50%) of the aggregate voting power of RMI’s shares then outstanding.



2.5. “Aruba Competitor” means a company whose business includes the design,
manufacture, marketing and sale of network equipment and which is a direct competitor
of Aruba in such business.



2.6. “Qualified Company” as of a particular date means a company that RMI has identified
to Aruba as such and:




(a) that is regularly engaged in the business of designing, developing, testing and
supporting semiconductor devices incorporating MIPS Technologies, Inc. (“MIPS”)-
licensed processor functionality;




(b) that is licensed by RMI and by all third parties whose technology is implemented
or used in the Products or in any Manufacturing Materials, to engage in the design,
development, manufacture, testing and support of such technology to the extent
required to test, debug and support the Products;




(c) such license is irrevocable and binding on RMI and on its successors and assigns
(whether voluntary or involuntary) and on such third party licensors and shall remain
by its terms in full force and effect until a date no less than three years after such date
(subject to the termination provisions set forth below); and


 


Exhibit C-1









 





EXHIBIT
C


SECURITY OF SUPPLY





(d) that is ready, willing and able to manufacture, sell and support the Products for the
benefit of Aruba and the Purchaser ODMs on terms and at prices substantially the same as those
set forth in the MPA, with first delivery to occur no later than thirty (30) days after the
occurrence of a Triggering Condition.



2.7.
“Triggering Condition” means occurrence of any of the following:




(a) RMI has ceased making Products available for purchase under the terms of the
MPA and such cessation is not attributable to Aruba’s breach of the MPA (provided that
for purposes of the MPA, “cessation” includes, without limitation, any suspension in
manufacture of Products for a period of ninety (90) days or more);




(b) a proceeding has been instituted against RMI under any provision of any
bankruptcy laws, which has not been dismissed, concluded or abandoned within ninety
(90) days;




(c) RMI fails to comply with Section 3 below;




(d) a trustee or receiver has been appointed by a court for all or a substantial portion
of the assets of RMI;




(e) RMI has ceased or suspended all or substantially all of its business for a period of
sixty (60) days or more;




A Change of Control has occurred; or




(g) RMI has made an assignment of all or substantially all of its assets for the benefit of
its creditors;



3. Qualified Company Authorization and License.



3.1. No later than ninety (90) days following the signing of the MPA, for any Products currently
released to production (and no later than the date of release to production of any Products later
released to production), RMI shall grant to a Qualified Company, a non exclusive, non transferable,
royalty free, fully paid license, effective from and after the occurrence of a Triggering Condition
and solely within the Field of Use, under all RMI Intellectual Property Rights (a) to modify, copy
and use (and to have others modify, copy and use on its behalf) the Manufacturing Materials to
manufacture and sell Products to Aruba and the Purchaser ODMs and (b) to make, have made, purchase,
use, import, sell or otherwise dispose of Products for use in or with Wireless Infrastructure
Products (the “Authorization and License”). The Qualified Company shall covenant and agree in the
Authorization and License to make Products available for purchase by Aruba and the Purchaser ODMs
in accordance with the terms of this Addendum. RMI shall deliver to Aruba a certified copy
of such Authorization and License signed on behalf of both RMI and such Qualified Company by
authorized officers of each of them; provided, however, that RMI shall have the right to redact
from such copy the names and any other information relating to RMI customers other than Aruba.



 


Exhibit C-2









 





EXHIBIT
C


SECURITY OF SUPPLY




The Authorization and License shall direct the Qualified Company, from and after the occurrence of
a Trigging Condition, to continue RMI’s performance obligations under the MPA (including current
and subsequent orders placed by Aruba and the Purchaser ODMs hereunder). The Authorization and
License shall authorize and direct the Qualified Company to sublicense to each of RMI’s then
current foundries and packaging and
assembly contractors all rights necessary or appropriate to permit such foundries and packaging
and assembly contractors to manufacture and sell the Products to the Qualified Company. Pursuant
to the Authorization and License:



(a) For the first twelve (12) months after the commencement of volume
production of the Products being sold to Aruba, the Qualified Company will comply
with RMI’s-supply obligation to Aruba set forth in Section 7.2 of the MPA;




(b) From and after twelve (12) months after the commencement of volume
production of the Products being sold to Aruba, in the event Aruba directly or indirectly
has purchased more than one million dollars ($1,000,000) of Products during the
twelve (12) months preceding the Triggering Condition, the Qualified Company will
comply with RMI’s-supply obligation to Aruba set forth in Section 7.2 of the MPA; and




(c) In the event Aruba directly or indirectly has purchased less than such dollar
amount of Products during the time frame described in subsection (b) above, the
Qualified Company will have the option, exercisable in its discretion, either (i) to offer
Aruba a Life Time Buy opportunity, whereby Aruba will have three (3) months in which
to place final Orders and an additional three (3) months to take
delivery, or (ii) to
continue to comply with RMI’s supply obligation to Aruba set forth in Section 7.2 of
the MPA.



3.2 The terms of the Authorization and License shall be binding upon RMI, its successors
and assigns, and shall survive the expiration or termination of any agreement between
RMI and its current foundries and packaging and assembly contractors. The Authorization
and License shall provide that Aruba is an intended third party beneficiary thereof. The
Authorization and License, its enforceability and construction shall be governed by the
laws of the State of California.



3.3 RMI’s obligations under this Section 3 shall be suspended as long as one of the
following conditions applies:




	 	(a) It is more than twelve (12) months after first release to product ion of any
Aruba products intended to incorporate RMI processors (“Aruba Products”) and
Aruba and its ODMs (“Purchaser ODMs”) have collectively placed purchase
orders on RMI for delivery of Products over the six completed calendar months
immediately preceding in an aggregate dollar amount no more than five
hundred thousand dollars ($500,000); or

	 
	 	(b) It is less than twelve (12) months after first release to production of any
Aruba
Products and the Aruba forecast last furnished places the total collective
purchases of Product by Aruba and the Purchaser ODMs from RMI over the
next succeeding six (6) complete calendar months at an amount no more than
five hundred thousand dollars ($500,000).






3.4 The Authorization and License, and RMI’s and the Qualifying Company’s
obligations under this Addendum, shall terminate upon the earlier to occur of the
following:




(a) the closing date of the initial public offering of RMI; or




(b) the date that RMI’s aggregate
revenue exceeds $30,000,000 (thirty million dollars) within a consecutive twelve (12) month period.


 


Exhibit C-3









 





EXHIBIT
C


SECURITY OF SUPPLY




4. Confidential Treatment. The Authorization and License and the Manufacturing
Materials, to the extent generated by RMI and non-public as of time of delivery, shall be
marked by RMI as RMI Confidential Information, and shall be treated as such under the
terms of the NDA and the confidentiality provisions of the MPA.



5. Remedies Cumulative. This right is in addition to and cumulative with any other rights
or remedies that Aruba may otherwise have under the MPA in the event
of breach by RMI.



6. Failure to Complete or Perform. In the event that RMI fails to enter into a written
Authorization and License with a Qualified Company with in the time period specified in
Section 3.1 above, on terms and conditions that are not materially less favorable to Aruba
than those set forth in Section 3 above, or in the event the Qualified Company fails to
perform its material obligations under the Authorization and License following a Triggering
Event, RMI shall promptly prepare and enter into a Manufacturing Information Escrow
Agreement, on terms and conditions reasonably acceptable to Aruba, pursuant to which
RMI will thereafter place into an escrow account copies of the Manufacturing Materials and
Intellectual Property Rights sufficient to enable Aruba to manufacture or have
manufactured the applicable Products. In such event, RMI shall select the escrow agent
and be responsible for the establishment, administration and cost of the escrow account.
The escrow materials described above shall be released for use by Aruba upon the
occurrence of any one or more of the Triggering Conditions described above, in each case
following prior written notice to RMI in accordance with the procedures to be set forth in
the escrow agreement.


 


Exhibit C-4









 





EXHIBIT D 




PURCHASER AUTHORIZED CONTRACT MANUFACTURERS




Purchaser hereby identifies the following authorized Purchaser CMs who may purchase RMI Products on
behalf of Purchaser. Purchaser may withdraw each such authorization on thirty (30) days advance
written notice to RMI, provided that in the event of such a withdrawal, Purchaser may, at its
election, cancel any open orders and pay all applicable cancellation charges or accept delivery of
and pay for any Products then being manufactured by RMI for the affected Purchaser CM for the
benefit of Purchaser. Further, Purchaser may expand unilaterally this list of authorized Purchaser
CMs upon thirty (30) days advance written notice to RMI, subject to RMI’s rights set forth under
Section 2.5 of the MPA.




	 	 	 
	Name

	 	Address
 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 


	 	 
 







 


Exhibit D