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Signature
Version
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Exhibit 10.1
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CONFIDENTIAL MATERIALS HAVE BEEN
OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
Fifth Amended and
Restated
Semiconductor Custom
Manufacturing Attachment No. 1
Custom Sales Agreement
No. 000569
When signed by the parties where
provided below, this Attachment shall be incorporated into Custom
Sales Agreement No. 000569 as Fifth Amended and Restated
Semiconductor Custom Manufacturing Attachment No. 1 and shall
be effective as of the date identified below by the second party to
sign this Attachment (the “Effective Date”); however,
if Customer fails to identify a date of signing, then the Effective
Date shall be the date of signing identified by IBM. This Fifth
Amended and Restated Semiconductor Custom Manufacturing Attachment
No. 1 shall replace Fourth Amended and Restated Semiconductor
Custom Manufacturing Attachment No. 1 in its entirety as of
the Effective Date.
Attachments are governed by the
terms and conditions of the Base Agreement.
Statement of Work
Unique Terms and
Conditions
The following terms and conditions
are applicable to this Attachment only. Referring to the Base
Agreement:
(a) Modify the following terms
and conditions:
Delete Section 4.1 in its
entirety and replace it with the following:
4.1 [***] Products will be:
(1) integrated or incorporated into systems sold by Customer
unless otherwise specified by IBM in writing; or
(2) distributed in incidental additional quantities for use as
service or upgrade parts in systems Customer has sold.
Delete Section 5.3 in its
entirety.
Delete Section 8.1 in its
entirety and replace it with the following:
8.1 IBM warrants that each unit of
Product will be free from defects in material and workmanship for
[***] after delivery. For purposes of this provision only,
delivery to Customer of each unit of Product is deemed to occur
five (5) calendar days after shipment from IBM. This warranty
does not include repair of damage resulting from failure to provide
a suitable installation environment, any use for other than the
intended purpose, accident, disaster, neglect, misuse,
transportation, alterations, or non-IBM repairs or activities.
Customer acknowledges that the functionality of Products is
contingent on Customer’s designs and, therefore, such
warranty does not apply to the functionality of Products fabricated
under this Agreement. IBM warrants Services will be performed using
reasonable care and skill.
Delete Section 8.4 in its
entirety and replace with the following:
8.4 If IBM determines such Products
do not meet the warranty, IBM will, at its option, repair or
replace the Products or issue a credit in accordance with the
purchase price. Every returned Product that IBM replaces, or for
which IBM issues a credit, will become IBM’s property and
will be destroyed. This warranty is void if Product labels or
markings have been removed or altered.
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Custom Sales
Agreement No. 000569
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Microtune,
Inc.
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5
th
A&R Attachment
No. 1
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Page 1 of 5
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[***] CONFIDENTIAL TREATMENT
REQUESTED BY MICROTUNE, INC.
Signature Version
CONFIDENTIAL MATERIALS HAVE BEEN
OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
Delete Section 13.2 in its
entirety and replace it with the following:
13.2 If IBM terminates this
Agreement or an Attachment pursuant to Section 13.1, IBM shall
be entitled to treat any or all applicable outstanding purchase
orders as if cancelled by Customer and Customer shall pay
(i) the quoted price applicable for any affected Products
and/or Services delivered or ready for shipment, and (ii) the
cancellation charges set forth in the applicable Attachment or
Attachments. Monies owing IBM shall become immediately due and
payable.
1.0 Scope of Work
1.1 IBM will manufacture photomasks
and Products in accordance with Part A of this
Attachment.
1.2 Customer will provide IBM with
the Customer’s Items and cooperate with IBM to enable IBM to
perform foundry services in accordance with this
Agreement.
2.0 Term
The term of this Attachment expires
on December 31, 2007.
3.0 Change Control
3.1 Customer may, at any time and
from time to time, by written notice to IBM, request changes to the
part numbers, specifications, or work scope. IBM will submit a
written report to Customer setting forth the probable effect, if
any, of such requested change on prices, payment or delivery. IBM
shall not proceed with any change until authorized in writing by
Customer. The parties shall promptly amend this Attachment to
incorporate any agreed changes.
3.2 IBM may implement engineering
changes required to satisfy governmental standards, pr
