Free Appendix - District Court of Delaware - Delaware

Case 1:06-cv-00004-SLR

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MANUFACTURING AND PURCHASE AGREEMENT
This MANUFACTUNNG AND PURCHASE AGREEMEW made. .entered inlo. day d Febnraly. 1999, by and between WmC. L-P.ra and cffkctheas of this New York im'bd partnership with its principal place of business a 1023. Stab Shaaf t Scheqedody, New York 12307 (hereinakr r e f e d . b as 'Purchnst%"),. and Hang0 ElectrtJnicsCo., U . a Korean co~poration ir principal place of business at YBBO, d. with l Kyo-Dong. Km Chon City, Kyung Buk Kofca (hereinafter referred to as 3 5 i W
RECITALS
A.
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Skll'er designs. manufacturer and saHs remate c o w l units for. interfaca with .sable TV convartops ("RCU'sg).

0. Purchaser operates a business whereby, h n g otherthirrgs. RCU'e tn operators of cab1.eN systems and other.arstom6Ks.

i supplies i
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C. Purchaser wkhtis to engage Sellot O design and rnatkaclvre R C h fot Purchaser and (o sell RCUs to Purchaser pursuant t the terms and conditions'of this o

Agreement

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NOW, - THEREFORE. in consideralii of the pr~mises .and the mritual pmmises . and monanls he&8fbr set forth, the p a t i i hereto, intending to be legally bound, do mutually agree as follows: .

not indude deslgn parameters. functionalii. layout and werlay) wHtr respectto RCCPs lo be designed. manufactured and sold pursuant to this Agmment Seller will thereupon

(a)

Purchaser will provide Seller with ~ p ~ f i i t i o n s may or m y (which

design an RCU in accordance with such specifications. (RCU's designed andlor manufacfured and sold by Sdler to Purchaser pursuant to this Agreement are refemd to
herein as *Products5).

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Products shall be designed by Selbr for Purchaser by Purchase (b) Order. Unless olhewiso specified in PurcHasw's purchaso order, all dosan services shall be pnwided by Selkr to Purclraser withoul chargo. All Purchase Orders shall be Subject to Purchaser's General Terms and Cond~tions copy of which is attached as a Exhibit A ~ c n e r s T a n r and Condillonam).Purchaser reserves the dgM b amend ils l General Tcrms and Cbndilions from time to Lirne in its sole discretion.

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PURCHASE AND ,SALEOF PRODUCTS. '

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(a) Seller shaU sell to Purchaser and Purchaser shal p u r c h ~ - ' b m Seller, MProducts at h e prices as may be agreed imm time to time. S a l k ~ hno1d d l remote mnWs . designed for Purchaser to any other person wWlwl Pur&s~'s wM$n consant, w h ' i consent may be withheld in Purchaser's sole and unfetbred d m . .. .
Pmduds a n b be orderf,d by purchase order. Purchase Mders 1 ( 0 (b) ~rod&!s shall be in wriling and shall state the Product6 ocdrod by mod&'r*rmbaand.. shall h!liite the pnbces. quantities and requested shipping schedules. All puntuse . . . orden shal! be subjecl lo Purchaser's GeneralT m s and Conditions..
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Seller shell accept any purchase order for Products w b a ( reaspnable delivery requirememi issued pursuant to this Agreement prwided that the purchse order is consistent with the annual sales forecast agreed upon by Seller and Pufctaancr. (d) Unless otherwise agreed '#I writing by both particas paymen1ffw the Producls shall be made thirty (30)days from lhe date of shipment.
and (e) Thc p ~ r ~ h a 8 d sale of Products r h d be governed s r d u s ~ y b y iho l e m and condiins of this AgrtcmenL In the case of any inconsistency belween this Agmement, the G e m 1 Terms and Conditions and Purchaser's purchase order,. . sukh:inoonsistoncy shag be reaohmd first to give efltect to the typed or Mitten providons (as opposed to the preprinted pfovisions).of a purchase order of Purdum which has been accepted by Sdlar in writing. next. la give effed to this Agreement, t m to the . h General T e r n and Conditions and fmally t the preprinted provisions of.PurcWWs o purchase order.
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Shipment shall bo mado to Purchaser's wanhouses or d h S y t o Purchasefs cusbmr as specified by Purchaser from t m to time, and tllle b Prad~CtS ie shall!pass t Purehoscr'upondelivery lo the carrier F.O.B. point of shitxnenl.' A#. sh'brplng o cost$ t the pod designated by Purchaser shall be rosponsibilii'of Seller. Upon deUvery o to the Purchaser's carrier ,at the port identified by Purchaser, all risk of loss o damage r and raponsibilily lo file claims shall be Purchaser's. .Ownership of Products shall not be trandferred to Purchaser at any other place or time, regarrl1,essof the lime. mpla-, , medium of payment, the mehod of shipment, the payment of ¶ranrport&n charges or insurance. or any statemenl contained in, or implication d m fm, the shipping. dmurnenls o any omsr documents relating t the sale. r o
(f)

(9) Purch&sermay sell Products at prices and term established at ils .awn discrefin. Purchasefs profits shall ba from its resale o Pmducts. f

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3.

INTLCECTUAL PROPERTY MAllERS AND INDEMNIFICATION.
-a.

A of the following items, if supplied by Pucfh9ar to Sdbr are N - (a) conskicrad Purcttaseh proprietary. confidenlid infomation or if dewloped by Sdkr In m~e$bn with p t f o m c s of its o b l l pursuant to ihi Agtaomd M ~ ~ considlercd work far h i on behalf of Purd~aser and shall be and are the Purchasefs proprietaly, confidential.inforrnatiorrand property:
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(i)

RCU designs (inchding conceptual deans), specificat'ms, overlays, fitnctianrrllty and layout;

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(ii)
(iii)
(iv)

Plasticcase designs;
Software code; and

Semiconductor-chipa

(An d the f m o i n g is re

to as 'Proprietary InfomtionY).

Selled shall and hereby does assign to Purchaser all of its rights in and t the Proprietary o InfoMWn. Seller agrees t pertwm all reasonable a& and exemte all neceseafyor o appropriate documentl ard othwwke provide proper assistance so as to vest We lo tfm Propnietary lnfmation in Purchaser and to as to e n Purchaser t obtain bor Itself o o r its minoes patents, copyrights and olher legal pmtecth for Ihe Proprietary infomalion.
All Propriety Informstionis for Punhasets exdusiw use. Selb shaU (b) make no use whakoevef of any the Prupiitary Information withwt the prbr wriften consent of Purchaser which consent may bo withheld in Purchasats sde and unlettered discretion.
Sdler shall def'end any suit or.pmeding brought agahl hrchasef (c) t ihe m&nt thal such wit or procssdlng is based on a claim that the.ProduclJ cabotitub' . o an infringemenl of any valid United'Slates or loniQn palent, c o m t , lmde seaet or olher intellectud property. right and Seller shall pay all damages and costs awarded by
finaljudgment against Purchaser.
If any o lhe Product$ designed. @anufactyredandlor supplied to ~unhader . f hemurider shall be held to infringe any valid Uniled Stales or foreign patent copyright, tMde Secret or other infelktual property right and the use of same is enjoined, or if Sdler belimes such a holding i likely. Sclor shall. a1 its option and at its expanse. l~ave s the . right: (I) Lo procure for Purchaser and ils wSLdmers the right to use such goods free of liability for inrringermnl or (ii) to rcplace (or modify) the Products with a nminrringing . substilule otherwise complying wilh all the requirerncnls of this Agreement.
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4.

PRODUCT WARRAFIfV.

~lerwana~ul.t,brapaioddUlm(3)~fm~d. acceptance by Purch.rsr, all PlodUdP Ohdl b. free born debt% in malerials and . . wodmanship a d shall mnlm t all Pumhmer ordm. spedsclbjbn* dwigno parameters and to Purchaw's Remote Contrrrl Deshn RequirementsDocument -1. Rw. A In addiion, Seilu warrants that for a perfod.d one (1) year from the date of manukcture of Product (9s s p d b d by lhe bar code found ins*& the c o ~ r l m n tthe softwarn code library in the Produclshall have bscn current 3 of Jeid .. ) date ad manutachire. Thhs warranty applies t the Purchaser and ils' w k c e s ~ ~ ' i n " o intem$i and its customers. This warranty does not apply lo cosmetic dainaga or to any damages o defects aris'mg from natural dbastem, l i i n g s t n i . dodfical.surges.. r normal wear, damage due.t Ilquids, nqllgem, improper maintena.m or misuse. In o rrdditlan, this warranty does not cover any damages or defeds due .lo nonauthorit#l modiiircwltions, mpairs, additions or deleions of componenls.

(a)

b m

(b)

Seller's liability h the event ofbreach of wamnty thall be as l'o~aw:..
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( ) replace any and a# defective or rweanfotm i
Product;

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(ii) 'if Seller is, no1 able to replace the defectkc nonconforming Produdwithin 3 reasonable tirnu,.refund the purchase p k 8 plus shipping and 'dutycosls of we P d u e . .
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(ii) ' . if the w~o box &"re rate b - a n ym t of ~ ~ U U f P exceeds one percent (1%) of such model fmrn any shipping ly) as es, .. determined by date code, Seller, at its expense, shall immediately :shipio Purchaser replacement Pmdud in an amount equal to one hundred ten . percent (1 10%) of the experienced out of box failure rate of such model of Product delived to Purchaset in the shipment lot($) rmm which the l a W o defective Product was taken and all subsequent shipping bs contal'mg, . r t the defect unla Ihe proMern(s) are corrected; or .. . .. in the event of an Epidemic Failure (as h'&einattbr fiv) defined), Purchaswmay, al ib sole option, either
reject !he entire lot of Product subject T @id&nic O (A) Failure and require Seller t refund the purchase price therefor., o o r

(B) . require Seller 10 inspec! afi units br ~roducl ure.!otof in Product and replace all ddedive units with conforming units,
~IIOCIIC
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. . For pu'pp&s of the foasgdng the term 'Epa&mic Failurem maru: (i) failure .

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of three parosnt (3%) or more o any model of Pmdud from any shippi* f lot(.). as determined by dale code in any mree (3) month periodd e t ihe u o same cause or (ii) failure oft percent (5%) of any modef o W dfmm b f u any shipphp id(s), ss determined by date code, in any (wdve(12) month period regadless of cause.

Al shipping. handling and s i d a f charges i n a r d h.&nne&n (c) defcctba Produd shall be borne by Ssllat.
(d)

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lhe,warranlies mnlsined herein are not sole and exdusic but am in additim lo, and do n d limit, any righls affarded Pbrchasff by law.
YOLOS. M molds plaalic cas dewloped by Sdbr 111 . rqu& are the propertyfor Purchaser and designs surrundw@d Purchaser PmWkWs of shall be to

a its quest. t
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6. TESTING, w ~mductsa n subjact b lestin~in aamiance with P u r c m Remote Conlml Design Requirements Document ReOOt Rev A.
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7.

TERM AND TERMINATtON.

(a) Unless terminated in acbrdance with Sactions ?(b), 7(c) or ?(d) of this Pllgreemont. the term of this Agnrement shdl be indefinite.
Either party m terminate this &ramen1 at any time upon one y (b) hundmd twenty (120) days wriUen notice t the dher party. o

of sum default by th8 fint party.

al (c) This AQmement may be lermi~tsd h e e l d o n of either pMty in the event the other paty, has 'Tailed t cure any default in the peffonnance of .its o abliations under this Agreemen1wilhin thirty (30) days after ttre delivery o writthn mtke f
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Unless othsrwb prohibited by law, this Agreement rtrrrll terminate (d) automatically. with no requ'wement of notice, if any ol (he foUow1ng occurs:

creditors;

(i)
(ii)

Either parly makes an assignment for the benefil OF ils

involuntary proceedings a n insliuted against cilher patty undrtr m y

E i e r parly becomas insolvent, or voluntary or

Cedoral, slate or olher bankruptcy or insolvency Isw, or a receiver is appointod Cor either party:
(iii)
Either partiis' business is placed undor atbchmtnt.

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gamkhment or other mtridivc process invoMnq a signitlcant portion of h e
business of e'dher party; or

Ether patty ceases t function as a going mcem or o (iv) ceases ta conduct is business opmtion~.

(e) Thi SecIiOn 7 shall Mt limit any legal right a remedy w h i i either pa* might otherwise haw at isw o in equity with m e b any breach by the ombr r pd party of the prwisions of this Agreement.
SALES AFTER TERMINATIOE~. The occy)tanc. of any odor from, Or the 8. sale of Products to, Purchaw after the lermin8tion qr exp*htionof this Mresment shall

not be constwed as a renewaI or exlenslon hereof nor as a waiver of termination, but tho terms and oondilions of sale of auch tmnsadiOns shall be govemed by p d s h s MenUaal with the provisionso this Agreement. f
9.

DELlVERlESAFTER TERMINATION.

Excepl as provided by subparagraph (b), below, afler a date fat (a) letmination of this Agreement is edablished by ROW agreement, purrruant to S c c h of 7. (unlcss another agrecKnent in wrttlng relating to Products shall then be in effed) Selk snjY be obligated to dsiiir, and Purchaser shall be obQaW to accept, only such Products as Purchaser shall have ordered h r n Seller prior t estabKihmd of a dale for o tcrm*hatb provided. however, Ihat in no event dmU Seller be obligated t d d m , of o P u ~ r b s c be obligaled t accept, any Products after the date of tm'nation. r o
(b) Upon termination of this Agreement for any reason, W e r shall upon . Purchaser's request, promptly d e l i r to Senor all molds used in h e manufadure of plastic cases lor Products. Such transfor shalt be effected without m i lo Purdraser.

Upon termhalion of this,Agreement for any reason, SIYar shall, a. Purchaser's request. identify the manufacturn a all smkmductDn u d in Produds ( and provide Purchaser with written authorization to the. manukdurets of such sodmndudors so that manufacturer may sell sum sm~icanducto~s djredly t Purchaser o or the Purchaser's designee. 'Upon.Sellofs compliagol! with this subsection. Purchaser . shalt pay lo S c l k he amoun!' determined pumant lo the' following table For semiconduclors developed explicitly for Purchaser, or far semiconduCtors .Ulat would not normally be available to Purchaser by the manufacturer without. Seller's written

(c)

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autho&alion:

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Number Of Units Of Product Purdrssed From InceptionTo pate of Terminations

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. . omwing. consideration shall be computed separatay for each s ~ u d o and dl m d k of Product wing a given semicMductor shall be r oe a g g q p t y . H manufgiclunr refuses a sell sernicondm direcUy t Purchaser far any o ~eason; above ~ ( ~ ~ s i d e r all not be paid. K. for any reason, the sedcmdudos the d h t~rwf&Aurtr refuses t supply semiconductars (o ~uaAw&r. Seller will, at Purdr8ser's o

D

optian:
i)
Canhue lo purchase and resell the semimnbudors b Purchaser for an em~unt to SelMs cost for the semmdudors l u s m foa a perlod of up rn p 6 months. and Supply Purrhaser with the s o b r e code stomd in the senrimndudor so that ii)

Purchaser m y have the semicandudor duplicated by another mamfadurer.
10. U T E DELIVERY PENALTY. If. after providing the purchaser a confimtion of Product dd'iery dates, Selter is unable to deliver Product in a timely manner, Purchaser may. ai its discretion, impose the Iblkrwinqpenattiez: a) lfd d i is mom ttm 2 weeks late. Seller will aedfl Furchaser for 2% of lho cosl of the Roduct that Is late and will wedit P&ctwar for an 8 d d i i 1 1 4 6 Ibr each additbnal week Produd is delivered late b Purchaser up to a maximum of 20%. or b) Pwchaser may require S e w to ship Product thal is mom than 2 weeks late by air erq~ess the wpeme o the Seller, or a1 f c) Purchaser may cancel any purchase order than is more than 3 weeks late (o
fsbduleddelkery.
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NO LVuslUTY FOR TERMINATION OR NON-WNEWAC. Neither Seller nor Purchaser shall, by mason of the t m i ~ U o n norwenewal of W i Agt~emenl, or be l i a k h e o h r for compensaliocl, reimbursement or damages on aco~lnt the loss 01 te of ~rofrn8 pfOftts, goochd or anripated sales, or on account of expendikir~. inw~menb. leases or mmmitmntsin connection wilh the b u s a s or good wll 01 Seller Or Purtchaser. or otherwise.
INSURANCE. At dl times during the bm of this Agreemen1 and any r eflmsbn o renewal hereof, each party shall, at its expense. maintain in elled, in r m w n l s and c a ~ r a g e ,and with 'murance companies reasonably satislsctory to tho other party. the following types of insurance: labor and employds IiabU~t~ (including a t ! f$
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liability for personal injuly, death or propty damage of or by b

~ p l 0 ~ ~ ) mmpnhensive general public liability insurance for a l risks ( i w m faC%tilesB operathns. products, sewccs, contradual liability and automobi7e liabE(y inm-L all in a m n l reasonably salisfactory to the other party as will adequatsly bdh W hom daims for properly damage. personal iniury including death, theft, and other liablit~ which may arise o result f or under this Agreemenl. Each pady shag kmish t0 the t m 0 t h party ccrtifscates of sueh Snwnnce which p v k l e that a minimum of 30 days wrltlen notice of any expiration, termination, cancellation or modificalicrn bs given la the other pafly13

1NDEMNlFlCATlON; LIMITATION OF LIABILITY.

Each paw shall indemnify and h ~ l d harmless the other party, its (a) of shareholders, diredom, officers. employees,agenls. designees and assignees, or them. from and against all losses. damages. liabilities, expnses. costs, ddm, suib.

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demands, actions, causes of actions, proceedings,judgments. assesmrenb, d e f i ~ n c b and charges (cdledively, mDamages") caused by, relating to. o arising from a d e k n in r the performance by such par& in accordance with this Agreement of its 0bl~ations hereunder. o a breach of its obligabs hereunder. or a breach of ils watranlisc or r m p r ~ e n l a h n as made herein. In the event o a chirn with resped t which a party may s f o be the indemnified parly hereunder, such parly (the 'Indemniiied P a m shall note oVler party (he -Indemnifying Party"} in writing as soon as practicable, but in M, event later than thirty (30) days afterreceipt d such daims. The Indemnified Party's failu*
provide such nntice shall not precludo il rrom seeking indernnircation hereunder unless such failure has materially prejudiced the Indedfylng Pafifs ability to defend such claim. The Indemnifying Pafly shall promplly defend such claim (with counsel of its awn choosing) and the Indemnified Party shall owperate with the IndemniFy'hg Party in the defense of such claim, including the sehment of the matter on the basis slipulatd by the Indemilying Party (with L e Indemnifying Party being responsibk for a l costs and h expenses of sucb settlement). If h e Indemnifying Party within a teasonable time afler nolice of a claim faih lo deknd the Indemnified Party, the Indemnified Paw shall be enliUed lo undertake lhw defense. compromise or settlement of wch claim at the expense of the hdcmityig Party. Upon tho assumption of the defense of such daim, the 4ndmnifymg Party may settle, compromise or defend as i sees fit. l
!N NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE (b) TO THE OTHER OR TO ANY PERSON OR ENTITY NOT A PARTY TO THIS AGREEMENT FOR ANY tNDIRECT, INCIDENTAL. SPECIAL OR CONSEQUENTJAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR BASED UPON ANY BREACH OF CONTRACT, VIOLATION OF STATUTE, NEGLIGENCE, STRICT LIABILI'IY OR ANY OTHER LEGAL THEORY.
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CONFIDENTlAtlrY. Seller agrees lo keep secret and not Ci C s to lS b e
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others nor make use of any confidential inlormation C Q R C ~ Mu d ' W 8 h P ~~

o r

b~siness, which m have become known t S d l durn Ule mm of the Seller's y o ~ u this relatiowhip with Purchaser and at any (inro thmalsr. Upon Wm*& Agnement, S e k agrees forthwith 1 deliver a Purcbasor any and an liimre. 0 doarmen&, data, information. samples, solhrvare, price fists, and all oUlet pnopeq belonging t Putchaser or relating b Purchasefs business. o

N h e r pany h a l be liable for failure or d a y h shbping Products a) hereunder if said failure is due ta an ad of God, t i , flood, sabotsp. war, riot,

insuna8m. M tisortlef, embargo, act of any du)l andlor miWy authority, p(flts I gf8nLad at Iheaquesl or far Ihc beneffil direelly o i n d i i y of any governmnb. 0 d . w r shall be dccmtd suspended upon notice to the other patty by the nan+etforming pad.

o lift (b) - a& pny shall uis its best efgofts t , ihs force majeurs ard agree lo work with the other t anfvs a t to the exlent pradicabls, a fesOl~tlon adt5eue. o wr .. the putpose of (his Agreement.
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The non-petforming party shall presume performance as soon as Ule (c) force majeurc ceases or is Isrmbrated.
COMPLIANCE WITH LAWS. Selkr represents that any and a# Products la this Agreement are designed, manufactured and sold in accordance with all applicable l w and regulations includihg. without Imobti0n,all labor as laws and lhat no forced or p r a mlabor has been used in c n othdth.
16.

la .be sold pursuant

17.

AUTHORITY TO BIND. No agent; employee. or repiesenfatbe of either

party has any aulhan'ly to b i d the said patty lo any affumatiorr, mpfemtation, Or wamnly concerning the Prodas sdd under rhis Agreement and unless an a f f i is spedlkaIy ntlned by !he party and included within I i A m n n1 is not p l.of the hr g ~ e t r basis af the bargain and shall not be enbmable against the party. Nothim contained in this Afpemenl shdl be construed as constiluting the relatbnship at the parties br, be one of agentlprincipal. pancler. pin1ventwe or ernployeelemployer, or muse either party be Mbte for any of the debts or obligafons of the olher, nor shall e b r pmty have the right Or au-rity lo ad for or incur any liability or obllgalion of any kind, e x p e ~ s implied, in o r the name of or on behalf of the other party nerelo.
18. SURVIVAL. Whenever an obligation. responsibility or duly of either party under this Agreement extends beyond the camplem of .u: pcrlormance or the termination of t h s Agmerner~t. such obl~galion, nspons~bAily duty shall tonlinue in lull w forceand effea w~thout regard I such mmpkthn of p ro ef a lennhution.

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DISPUTES. In the even1 of any controversy arising with respect to this

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Agncmnt, both pa-s shall use its bast efforls to resblve the m n m f s y . In lhf2 even1 me parties are unable to anive at a resdution, such m n m v e v s M be determind W a r b w a n held h (he CZy d Albany. New Yofk in accordsna, wilh the ~OnImWdial Arbitration Rules of the Amer'K;an Arbidration Assodation (the -AAA") ff any 0rganbWn that i the s u m thereto using arbitrators W e d g e s in the telecommunications industry and who will foUw substantive ~ k of law* fhe d i s p ~ s shall he delermined by an arbitrator acceptable to both poltiss who shall be s~ea* within liben (15) days of fihq no~ce intenth t arbitrate. m mr .t disprb of o r ie b be determined by a panel d three arbitrators selected as folbws: Within f i b n (15) d W ol N i notice of inlention to arbitrate. each party shall appoht one arbitv'abr, these seiecled arbitrators will then name a third arbiIra\or, who shalt be an atloMey admlttd before the barst any state of !he United States. to preside over the pand. If dmfP fiils to appainl any arbbator, or ifthe W arbitrators do not n a m a third afBiWtOf a n ffleen (15) days, either party may roquest h e AAA to appoint Vle necessary arbi41~1m) pursuant to Rule 13 of the Cornmedal Arbitration Rules. No a r b i i l m may be af@aMd M employed by either party and the arbitrabrs shall have fuU authority. including a to grant specific performance, injunctive o other equitable relid~mvided this S, that t ! 21 shall in no way affed the right of any parly ta seek interim equitable rcriief to mainbin Ihe status quo in aid d the arbhation in any court of cornpeten1jurisdlctbn. ArbiltretOrS shall be compensated for their scnrices a the standard haurly rate charged h t e private t hi r profeSsibnal activities. A# testimony shall be transcribed. fhe pw8iling party in any such situation wiH be entitled M recover fmm the other pady dl o its expenses, including, f without limilation, an expenses due and payable t Ihe AAA and such p w fees and o a s expenses for witnesses. the arbitrators and its atlornefs fees imtred in the conduct of such arbitration but in no oven( wll the recovery of its attorney's fees be in arcem ofthe Of the other party's attorney's fees. The award of the panel shall be acmmpanied by findings of fad and a statement of reasons for the decision. All parties agree be bound by the results of this arbitration and such arbitration decisii shall constitute an award by the arbitrators within the meaning of the AAA notes and applbbb Jaw:judgment upon the award so tendered may be entered and enforced in m Wftof y competent j u W i n . To the exlent reasonably pradicable. both patties Wtee conllnuc pehrming !heir respective obligations under this Agreement white (he dispute is
being resolved.

20. NO THIRD PARTY BENEFICIARIES. This Agreement is no1 intended to bench any third person other than furcbaser and Sdler.
21. NON-ASSIGNMENT. This Agreemenl, and any interest tierein. may not be assigned by either pacty, whether by operation of law or otherwh, without the prior wriuen consent of the other party, which cansent shall not be unreasonablywithheld.

22. SEVERAB~LITY. If any of the provisions of this Agreement i dedatod or s found to be illegal. unenforceable or void, L c remaining provisions of this Agreement h shall continue ifr full brce and effcct and shall be edorceaMe to lhe extent permitted by

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HIGHLY

~003997

Case 1:06-cv-00004-SLR

Document 12-6

Filed 03/01/2006

Page 11 of 12

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law. As t any Uegal. unenforceable or wid provision; the rights and obliwUDnr d ihe o partier shall be mstwed and enforced through a valid c%mWdally t m b k (sfm ~0ns'rsl~nt the undarlalcings of the padies under the order has been substituted in with place bf the invalid pmvlsbn.
WAIVER Faikrru to insist upon strid of.any.6f the t m or d oondihs of ihis Agreement by either party shaU not constitute a waiyer of such.t e r n and cmdiliOm or a waiver d any defaull by the other party. No waiver or m o d m m - o f

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any of the foregoing terms and condiiions shall be efhctive unless such waiver ar moditkation is in wrilhg and signed by an authorEud represenblive of bath parties.
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24. FULL AGREEMENT. This Agreement is intended by 4he partm a'r the find expresbn of their agreement as a camplets and exduslve statement of its t e r n with rwpaQla the wbjact nytler htnof and superstdas and cancels any priot agreementor undentlandings, orid o MitOgn, wilh t a p e d thereto. No other rqmsenl?tbm, r understandings, or communications shall bt indudedin thk Agreemenl, other than rhots speeikaWy set forth herein. T i Agreement may only be modified o altered br whs r r ~xeCusrd h e parties hereto. by
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25. GOVERNING LAW. This Agreement ohal be governed by lht?laws of lbe Stale of New York applicable b contracts to be fully performedtherein.
26. NOTICES. All notices required o pmitled hereunder shall be in w&hg r and shah be deemed duly given when personally delivered or when received ifsent by R e g i r e d o Cerlifd Ma#, Return Receipt Requested, POSUQC r Prepaid, o by &ble o r r FAX when confiied by letter as akxesald, as follows:
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To Purchaser.

Harry Mlckey Conlec, L.P. 1023 State Street Schenectady, New York 12307 F:AX:(518) 3 8 2 M 2
Phone: (518) 3029000

Wilh a copy b :

Richard A. Langer, ESQ. McNdmee, Lochner, T h 6 Wdliams. P,C "s 75 Slate Sweet, P.0; 80% 459 Albany, New Yo& '12201-0459 FAX: (518) 447-W1 Phone: (518) 447-3200

HIGHLY

CONFIDENTIAL

Case 1:06-cv-00004-SLR

Document 12-6

Filed 03/01/2006

Page 12 of 12

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To seller.

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Hang0 IZktrotdct Ltd. - Kyd)ong;Kim a* city, , Kyuns Buk, FAX: 82-54? 4324329

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or sac$! other addnss as either party m y h m f l w ckQmte in writing by like n d b .

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W WIWESS WHEREOF the p a r k s hereto have sQned t i ~ g n a m ~mt the hs n day anft year tltst abv8 writlen.
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CONTEC, L . P

HIGHLY CONFIDENTIAL
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