Exhibit 10.1
THIRD AMENDMENT TO MANUFACTURING
AGREEMENT
This Third Amendment to
Manufacturing Agreement, dated as of January 1, 2009 (this
“ Amendment ”), is made and entered into by and
between Microtune (Texas), L.P., a Texas limited partnership,
located at 2201 10th Street, Plano, Texas 75074 (“
Microtune ” or “ Buyer ”) and
Ionics EMS, Inc. (“ Ionics ” or “
Company ”).
WHEREAS, Microtune and Ionics are
parties to that certain Manufacturing Agreement, dated as of
May 24, 2005 (the “ Manufacturing Agreement
”);
WHEREAS, Microtune and Ionics wish
to enter into this Amendment to amend and modify certain provisions
of the Manufacturing Agreement; and
WHEREAS, pursuant to
Section 10.7 of the Manufacturing Agreement, no
modification thereto shall be valid unless it is made in writing
and signed by the parties thereto;
NOW, THEREFORE, in consideration of
the foregoing, the mutual promises and covenants contained herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Definitions. Capitalized
terms used herein without definition shall have the respective
meanings ascribed to them in the Manufacturing
Agreement.
2. General Provisions . This
Amendment shall be subject to the terms and conditions of Article
10 of the Manufacturing Agreement.
3. Amendment to Section 3.9
of Manufacturing Agreement. Section 3.9 of the
Manufacturing Agreement is hereby deleted in its entirety and
replaced by the following:
3.9 Consigned Test Equipment.
The Company will maintain at its expense all equipment consigned by
the Buyer in good working condition and will keep all calibrations
of equipment current and accurate in accordance with Buyer’s
requirements. Such maintenance shall include any and all test jigs
and other production fixtures consigned by Buyer. All calibration
and maintenance records will be made available to Buyer upon
request. Should Buyer determine in its sole discretion that Company
has failed to adequately maintain such consigned equipment, Buyer
may elect in its sole discretion to maintain and/or repair such
consigned equipment. Company agrees to pay for all reasonable
expenses incurred by Buyer to maintain and/or repair any consigned
equipment.
3.9.1 For the period commencing
January 1, 2009 and ending on December 31, 2009 (“
CY2009 ”), Buyer agrees to reimburse Company for the
cost of calibrating Buyer’s consigned equipment presently
being used by the Company. This reimbursement obligation will only
cover consigned equipment with regular
calibration intervals falling inside
of CY2009. The cost of calibration of consigned equipment that
should have been calibrated prior to CY2008 in accordance with
regular calibration intervals will be the sole responsibility of
Company
3.9.2 Repair of defective consigned
equipment will be the sole responsibility of Company. Any
accompanying calibration of the repaired consigned equipment will
be the responsibility of Company, unless such calibration coincides
within +/- 3 months of a regular calibration interval within
CY2009.
3.9.3 Buyer assumes no obligation to
reimburse Company for costs of calibration of consigned equipment
subsequent to December 31, 2009 and any such reimbursements
must be separately agreed upon by the parties and documented in the
form of an additional amendment to this Agreement.
3.9.4 For the calibration charges in
reference to the Annual Calibration Calendar (Consigned Test
Equipment, Annex A), the Company is to issue a Calibration
Quotation to the Buyer for approval. Buyer also agrees to pay
Company a 2.5% administration charge (i.e. 2.5% of the calibration
charge) as part of the calibration quotation. Upon approval, Buyer
is to issue a Purchase Order for such and Company shall issue an
invoice reflected the approved amount in the quotation.
4. Amendments to Sections 4.6 and
4.7 of Manufacturing Agreement. Sections 4.6 and 4.7 of
theManufacturing Agreement are hereby deleted in their entirety and
replaced by the following:
4.6 Manufacturing Price. The
prices to be paid by Buyer for the Products manufactured pursuant
to this Agreement shall be according to the Manufacturing Pricing
which is attached hereto as Exhibit C or the Manufacturing Pricing
as has been mutually agreed upon by the parties through the
issua
