EXHIBIT 10.16
MEADOWLARK OPTICS AND WAH-III
DISTRIBUTION AGREEMENT
This agreement is made and entered into as of the twenty-first day of
September, 1995, by and between WAH-III Technology Corp., having offices at
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as "Manufacturer"), and Meadowlark Optics Inc., having its principal place
of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - 9470
(hereinafter referred to as "Distributor").
In consideration of the mutual covenants and conditions herein contained, the
parties mutually agree as follows:
1. PREAMBLES:
-- WAH-III (Manufacturer) and Meadowlark Optics
(Distributor) agree to enter into this Distribution
Agreement applying to Manufacturer's Display and Spatial
Light Modulator (SLM) technology. As a component of this
agreement, both parties would like to establish a
distribution agreement from which we can utilize the
Distributors' established and future customer contacts as
well as their established sales and marketing
infrastructure to promote the product sales and increase
industry awareness of Manufacturer's technological
capabilities.
2. PRODUCTS:
-- AWH-III Display or SLM modules.
-- Drive electronics, and applicable software, manuals and
accessories for driving Manufacturer's Display or SLM
modules, if applicable.
-- A list of the products and their specifications is
provided in Exhibit 1A.
3. TERRITORY:
Manufacturer grants Distributor on a world wide
nonexclusive basis the rights and authorities to solicit
orders for the sale of Manufacturer's products pursuant
to Section 5 (Distribution Rights and Obligations).
4. PRICING AND PAYMENT:
-- Manufacturer will sell products to Distributor at prices
according to the current Manufacturers price list
provided in Exhibit 1B.
-- Manufacturer will offer Distributor the same or lesser
pricing for quantity and product as any other distributor.
-- Manufacturer reserves the right to change prices by
giving thirty (30) days written notice to Distributor.
All services provided by Distributor will be subject to
thirty (30)
days written notice of change. It is understood that
Manufacturer relies on services provided by Distributor for
the fabrication of the products.
-- Payment terms shall be net 50 days, payable in U.S. dollars
within fifty (50) days from the date of invoice or 3 days from
receipt of payment by Distributor's customer, whichever comes
first. If Distributor secures pre-payment from customer, then
that percentage of payment shall be due Manufacturer within
three (3) days of that payment.
-- Distributor will not be required to stock, or keep inventory
of Manufacturer's products.
-- Manufacturers agrees not to undersell Distributor unless
Manufacturer had entered into an agreement, or commitment,
prior to this agreement. Distributor recognizes that
Manufacturer had a commitment prior to this agreement for
lower pricing.
5. DISTRIBUTION RIGHTS AND OBLIGATIONS:
-- Distributor agrees to pay all of its incurred expenses
associated with promoting and closing sales, i.e., sales
literature, advertisements, travel, lodging,
entertainment, etc.
-- Distributor is obligated to put forth reasonable efforts
to promote and obtain sales of Manufacturer's products,
including data sheets to customers, calls, quotations,
trade shows, demonstrations on site and at customers' site.
-- Distributor has the rights to distribute and represent
other like or similar products to those provided by
Manufacturer.
-- All customer contacts that are initiated by Distributor
are deemed to be Distributor's exclusive customer and at
no time, without written consent of Distributor, will
Manufacturer circumvent that linkage either directly or
through other indirect means.
-- Any disputes that arise with regard to multiple
distributors or distributor exclusivity will be
arbitrated by a mutally agreed upon third party. Time is
of the esssence in resolving such disputes.
6. DISCONTINUATION OF PRODUCT:
-- Manufacturer shall have the right to discontinue the
availability of any product or to make design changes or
improvements at any time without incurring any obligation
to apply such changes or improvements to the products
previously purchased or in use in the Territory.
-- Manufacturer will notify, in writing, Distributor with
three (3) days of any decision to discontinue, add, or
change a product offering. Any material stocked by
Distributor will receive full refund or upgrade by
Manufacturer at Manufacturer's expense.
-- [Quotations will be valid for forty five (45) days.]
Obsolete products will be available for 45 days after
obsolescence.
7. PRODUCT DEVELOPMENT:
-- All NRE charges or other costs associated with product
development work performed by Distributor for
Manufacturer, will be executed via purchase orders. The
terms and
conditions that govern those purchase orders
will be negotiated on an individual basis, and further
they will be independent from this Agreement.
8. PATENT INDEMNIFICATION:
-- Manufacturer shall indemnify, and defend at Manufacturer's
expense, Distributor against any claims as they pertain to the
product, with the exception of any claims that pertain to the
process steps performed and provided by Distributor.
-- Distributor shall indemnify, and defend at their expense,
Manufacturer against any claims that specifically relate
to Distributor's manufacturing processes performed to
yield the product.
-- Example, if WAH-III directs Meadowlark Optics to
flatten and polish backplanes then WAH-III will
indemnify and defend Meadowlark Optics against any
infringements that deal with the broad scope of
flattening or polishing a Display or SLM backplane.
However, the specific processes or procedures
utilized by Meadowlark Optics to flatten or polish
the backplanes is their liability and they must hold
harmless and defend WAH-III against any claims made
with respect to those procedures.
-- Manufacturer provides no representations or indemnification
covering product applications.
-- In the event that any product or any part thereof is held
to constitute infringement, the Manufacturer shall, at
its own expense and discretion, either procure for the
Distributor or subsequent purchaser the right to continue
using said product, or part, or replace the same with a
non-infringing product, or part, or modify it so that it
becomes non-infringing, or refund the purchase price,
less depreciation thereof.
9. PRODUCT WARRANTIES:
-- Manufacturer warrants that the goods sold to Distributor
hereunder are free from defects of material and
workmanship for ninety (90) days from date of sale to the
ultimate consumer by Distributor except for products or
component warranties that have been clearly identified to
have a shorter warranty period.
-- Manufacturer will repair or replace defective products at
Manufacturer's discretion within twelve (12) months from
date of purchase at Distributors discretion.
-- Distributor warrants all products and services integrated
into Manufacturer's products for ninety (90) days from
manufacture, and repair or replace products and service
at Manufacturers discretion within twelve (12) months
from date of manufacture.
10. TERM AND TERMINATION:
-- This Agreement shall expire three (3) years from the date
of execution.
-- This agreement may be terminated in the event Distributor
becomes insolvent or files an application in bankruptcy,
or if Distributor makes a general assignment for the
benefit of creditors.
-- This Agreement may be terminated in the event
Manufacturer becomes insolvent or files an application in
bankruptcy, or if Manufacturer makes a general assignment
for the benefit of creditors.
-- This Agreement may be terminated immediately by the
non-defaulting party, if such party is not itself in
default of the Agreement, if the other party breaches any
covenant or warranty made by it in this Agreement and if,
after ten (10) days written notice to cure any such
default, the default is not cured.
-- In the event that the controlling ownership of either the
Manufacturer or the Distributor changes, then either
party to this Agreement may terminate this Agreement,
upon giving the other party at least forty-five (45) days
prior written notice of such termination.
-- This agreement may be terminated by either party for any
reason or no reason with with 90 day written notification
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
DISTRIBUTOR MANUFACTURER
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Sales & Marketing WAH-III Technology
SIGNED 9-22-95 SIGNED 10-13-95
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