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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Page 1.
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NORTH AMERICAN DISTRIBUTOR AGREEMENT
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2002
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1
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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2
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
