Supply Agreement - Transgenomic Inc. and Hitachi Instruments Inc.
SUPPLY AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of March 10, 2000
by and between TRANSGENOMIC, INC., a Delaware corporation ("Transgenomic"), and
HITACHI INSTRUMENTS, INC., a California corporation ("HII"). (TRANSGENOMIC and
HII are hereinafter referred to jointly as the "Parties" and individually as a
"Party.")
Section 1. SCOPE AND PURPOSE.
(a) HII agrees to sell to Transgenomic on a non-exclusive basis
certain equipment and related accessories as more fully set
forth in Exhibit A hereto ("Equipment") in accordance with the
terms and conditions of this Agreement. Exhibit A may be
amended from time to time by the addition, substitution or
modification of Equipment or the specifications relating
thereto as agreed to by the Parties.
(b) Transgenomic agrees to purchase from HII Transgenomic's
requirements for Equipment; provided that HII is able to
supply Equipment to Transgenomic meeting all agreed to
specifications set forth in Exhibit A hereto including, but
not limited to, those relating to performance and quality of
the Equipment, and is able to deliver Equipment to
Transgenomic in such quantities and at such times as is
required by Transgenomic.
(c) HII acknowledges that Transgenomic will incorporate Equipment
into one or more products manufactured by Transgenomic,
including its WAVE-Registered Trademark- products for the
separation of nucleic acids (the "Transgenomic Products").
Transgenomic reserves all rights to market Transgenomic
Products incorporating Equipment on a worldwide basis either
directly or through other third parties. Transgenomic shall
have the right to modify the Equipment in order to configure
the Equipment for a variety of uses in connection with its
needs.
(d) HII agrees to assist and support Transgenomic in modifications
of source code of the software HSM 3.0-20 as required for
implementation of Transgenomic applications. If such support
is deemed to be of significant expense to HII, then a mutually
agreed to fee will be paid by Transgenomic.
Section 2. PURCHASING PROCEDURES.
(a) All purchases of Equipment by Transgenomic shall be made by
written purchase order issued to HII (a "Purchase Order") in a
form agreed to by the parties. Each Purchase Order shall
include, among other things, a description of Equipment to be
purchased, the quantity to be purchased, routing instructions,
delivery schedule, destination and confirmation of price. HII
agrees to accept telegraphic or telecopied (fax) Purchase
Orders. HII will deliver confirmation of the receipt of each
Purchase Order to Transgenomic within five (5) business days
of receipt by email or fax.
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(b) Except for the specific items set forth in Section 2(a),
special instructions or different or additional terms which
appear either on Transgenomic's Purchase Order or on HII's
confirmation form shall not apply unless mutually agreed to in
writing by duly authorized officers of each of the Parties.
(c) HII shall only accept blanket Purchase Orders that originate
from the following Transgenomic facility or other locations
designated by Transgenomic:
Transgenomic, Inc.
[Purchasing Department]
5600 South 42 Street
Omaha, NE 68107
(d) Under no circumstances is HII to proceed with the manufacture
or delivery of Equipment for Transgenomic under this Agreement
or otherwise without the receipt and confirmation of a
Purchase Order relating thereto. HII acknowledges and agrees
that Transgenomic will not be responsible for any costs or
expenses incurred by HII for materials, supplies, labor or
other commitments relating to the manufacture or delivery of
Equipment other than as authorized by Purchase Order duly
delivered to HII.
Section 3. PRICES AND TERMS AND CONDITIONS OF SALE.
(a) PRICES. The price of Equipment and other terms and conditions
of sale are as stated in Exhibit B. Either Party may request a
renegotiation of the price together with the date on which
such price change will become effective. In the event the
Parties agree to a change in the specifications of Equipment,
such change will not become effective until the Parties have
agreed on a revised price and the conditions of sale for the
newly specified Equipment. Changes in specifications may only
be initiated by the following named individuals on behalf of
HII and Transgenomic:
Changes may be accepted only by Mark McDonald or his designee
on behalf of HII.
Changes may be accepted only by Collin J. D'Silva or his
designee on behalf of Transgenomic.
New Equipment types will be added to Exhibit A upon the mutual
agreement of both Parties. New Equipment added to Exhibit A
shall be accompanied by an amendment to Exhibit B which will
specify price and other terms and conditions.
(b) TAXES. The amount of any present, retroactive or future sales,
use, excise or similar tax applicable to Transgenomic's
purchase of Equipment shall be added to the HII invoice and
paid by Transgenomic unless Transgenomic provides HII with tax
exemption certificates acceptable to the appropriate taxing
authorities.
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(c) PAYMENT. HII may invoice Transgenomic for Equipment sold
hereunder immediately upon delivery and Transgenomic shall pay
the full invoiced amount within forty five (45) days after the
date of HII's invoice.
Section 4a. FORECASTS. Transgenomic will provide HII with a rolling
forecast of Transgenomic's estimated requirements for Equipment ("Forecast").
Each Forecast will relate to a four month period and will be delivered in
writing to HII at the address specified in Section 15 hereof no later than five
(5) business days after the first day of each month. In addition, no Forecast
shall be construed as a purchase order for Equipment. Transgenomic agrees to
place orders for a minimum of 75% of its Forecast for a given period. An initial
Forecast form is set forth in Exhibit C.
Section 4b. DELIVERY. All deliveries shall be made FOB HII's San Jose
facilities, and title and risk of loss shall pass to Transgenomic at such
delivery point. HII will use reasonable efforts to deliver Equipment to a
carrier at such delivery point on the estimated shipment date for transportation
to the location(s) specified in Transgenomic's Purchase Order. Shipments shall
be in quantities specified in Purchase Orders. Shipping dates shall be the later
of five (5) days within receipt of the Purchase Order, or a date as specified on
the order, provided that if the quantity of Equipment which Transgenomic orders
for delivery in a month exceeds the quantity forecast for that month by more
than 25%, HII may exceed the five (5) day delivery requirement for a reasonable
period for that quantity that exceeds the Forecast. In the event HII is unable
to deliver to Transgenomic quantities as specified in Transgenomic's Purchase
Orders, Transgenomic reserves the right to cancel those Purchase Orders and
purchase from alternate sources. When HII is able to satisfy the production
requirements of Transgenomic, Transgenomic will resume purchasing from HII.
Section 5. INSPECTION AND ACCEPTANCE. Transgenomic will inspect any
shipment of Equipment received from HII and will notify HII of any defects
within five (5) days after Transgenomic has discovered such defects. If
Transgenomic fails to notify HII of any such defects within such period, the
shipment shall be deemed accepted. Transgenomic will allow HII to inspect any
defective Equipment at Transgenomic's site. At the request of HII, Transgenomic
will ship to HII Equipment that Transgenomic believes is defective, provided HII
pays for the freight charges. HII agrees to replace all defective Equipment
rejected by Transgenomic or, at HII's option, to reimburse Transgenomic for the
full purchase price thereof, including any related shipping costs and taxes.
Section 6. WARRANTY AND LIMITATION OF REMEDIES AND DISCLAIMER.
(a) HII warrants the Equipment to be free from defects in material
and manufacture and to conform to specifications set forth in
Exhibit A at the time of shipment. If any Equipment fails to
conform to the specifications or any defect in material or
manufacture appears within 24 months from the date of
shipment, HII's entire liability, and Transgenomic's exclusive
remedy, shall be, at HII's option, either to repair or replace
such defective Equipment within a reasonable time after
written notification thereof and return of the defective
Equipment to HII in San Jose, California.
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(b) THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING OUT OF
A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF
TRADE EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
Section 7. LIMITATION OF LIABILITIES; TIME LIMIT FOR FILING ACTION.
(a) NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO EACH
OTHER FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR
BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THE
EQUIPMENT, ANY OF TRANSGENOMIC'S PURCHASE ORDERS, THIS
AGREEMENT OR THE TERMINATION OR NONRENEWAL OF THIS AGREEMENT.
This limitation applies regardless of whether such damages are
sought based on breach of contract, negligence, strict
liability in tort or any other legal theory.
(b) Any action for breach of warranty or any other obligation
under this Agreement must be commenced within one year after
the breach occurs.
(c) Each limitation on liability or limited or exclusive remedy
set forth in this Agreement is independent of any other
limitation or remedy and if any such limitation or remedy
fails of its essential purpose or is otherwise held to be
unenforceable, that shall not affect the validity of any other
such limitation or remedy.
Section 8. TECHNICAL SUPPORT AND SERVICING OF EQUIPMENT.
(a) HII agrees to provide all available technical support and
literature, including information on the use of the Equipment
being supplied to Transgenomic to facilitate its use in
Transgenomic Products.
(b) HII shall make available for purchase all necessary
consumables, accessories and spare parts for the operation,
repair and proper servicing of each unit of Equipment to
Transgenomic and to Transgenomic's customers for a period of
seven years following the date of the delivery of the
Equipment. This provision shall survive termination of this
Agreement.
(c) HII shall provide, free of charge, Transgenomic with all
necessary copies (maximum of three copies) of all manuals,
brochures and part price lists concerning the servicing of
each unit of Equipment. Hitachi will make no provision to
re-label or otherwise modify such manuals, brochures and part
price lists without a prior written agreement.
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Section 9. PRODUCT IDENTIFICATION AND LABELING. All Transgenomic
Products shall carry the Transgenomic name (or other name designated by
Transgenomic) and will not use the HII brand name except as mutually agreed to
by the Parties. There shall be no obligation on the part of Transgenomic to
purchase or acquire any right to use the HII name or any other trademark,
tradename or other symbol or designation used by HII or to make any reference to
HII on any Equipment or Transgenomic Products incorporating Equipment.
Section 10. CONFIDENTIAL INFORMATION.
(a) "Confidential Information" shall mean all such confidential
and proprietary information of any kind, whether or not fixed
in a tangible medium, including, without limitation, systems
concepts, drawings, models, software embodiments,
specifications, plans, designs, marketing plans, identity of
customers, trade secrets and technical data, as either of the
Parties (the disclosing Party) may designate as confidential
upon disclosure to the other (the receiving Party). For the
purposes of this Agreement, appropriate words of designation
include, without limitation, the words "Confidential" or
"Proprietary." Any information disclosed orally by either
Party shall not be considered "Confidential Information"
unless clearly identified as confidential or proprietary at
the time of such oral disclosure and summarized by the
disclosing Party in a writing which is clearly marked
"confidential" or "proprietary" and sent to the recipient
Party within 30 days after the initial oral disclosure.
Confidential Information includes the existence and terms of
this Supply Agreement.
(b) Confidential Information shall not include any information
that the receiving Party reasonably establishes:
(i) was in the public domain at the time the receiving
Party learns of it, or later becomes publicly known
through no wrongful act of the receiving Party;
(ii) was known to the receiving Party prior to the date of
their Agreement, as shown by written records of the
receiving Party, and was not subject to prior
confidentiality obligations with the disclosing
Party;
(iii) was received by the receiving Party from a third
party who had a lawful right to disclose it to the
receiving Party and no obligation to maintain the
confidentiality of such information;
(iv) was independently developed by the receiving Party
without the use of or reference to the Confidential
Information of the disclosing Party; provided,
however, that such information as is not included
within Confidential Information because it meets the
conditions of subsection (b)(i), (iii), or (iv) or of
this Section 10 shall be deemed to be Confidential
Information until the date it becomes public
knowledge, is independently developed, is received
from a third party or is approved for release, as the
case may be.
(c) All Confidential Information received under this Agreement
shall be treated by the recipient Party with reasonable care
to assure that the confidentiality of such
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Confidential Information is maintained, and that such
Confidential Information is not distributed, disclosed or
disseminated in any way to anyone except employees of the
recipient Party who are involved in the work related to this
Agreement and who have a need to know such information.
(d) All rights the disclosing Party may have in Confidential
Information prior to disclosure, including, without
limitation, rights of patent, copyright and trade secret,
shall remain exclusively with the disclosing Party, and
nothing in this Agreement shall be construed as granting any
license, waiver or other right to the receiving Party with
respect to Confidential Information.
(e) Each of the Parties shall have the right to refuse to receive
any information under this Agreement and nothing in this
Agreement shall obligate either Party to disclose to the other
any information whatsoever.
(f) The receiving Party shall promptly return all Confidential
Information to the disclosing Party upon termination of this
Agreement or at any time upon request and shall certify,
represent and warrant that all such Confidential Information
and copies and extracts thereof have been returned or
destroyed, provided that the recipient Party may retain one
copy of the Confidential Information for archival purposes in
the event of a dispute as to the Confidential Information
received.
(g) The Parties agree that the production processes used by HII to
manufacture Equipment covered by this Agreement are
confidential and will be treated as Confidential Information
under this Agreement and are proprietary to HII. In addition,
the Parties agree that the specifications of Equipment covered
by this Agreement as supplied by Transgenomic are Confidential
Information and proprietary to HII and will be treated as
Confidential Information under this Agreement. The Parties
agree that the production processes used by Transgenomic to
manufacture Transgenomic Products are confidential and will be
treated as Confidential Information under this Agreement and
are proprietary to Transgenomic. In addition, the Parties
agree that the specifications of Transgenomic Products are
Confidential Information and proprietary to Transgenomic and
will be treated as Confidential Information under this
Agreement. All such treatment shall be effective without
regard to whether the subject information is specifically
designated as confidential under Section 10(a).
Section 11. INDEMNIFICATION.
(a) HII will indemnify, defend and hold harmless Transgenomic and
its directors, officers, agents and employees from any loss,
claim, liability and expense (including reasonable attorneys'
fees and other expenses of litigation) with respect to:
(i) workers' compensation benefits payable on account of
sickness, injury or death of any HII employee, or to
any employee of HII's subcontractors, agents or
delegates, where the sickness, injury or death arises
out of or is in
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any way related to the work performed or to be
performed under this Agreement; and
(ii) claims for sickness, bodily injury, personal injury,
death, property damage or loss as asserted by third
parties (including employees of HII or by HII's
subcontractors, agents or delegates, or by any other
person at HII's plant), where the claim is based in
whole or in any part on, or is in any way related to,
any act or omission attributable to HII, its agents,
employees or subcontractors, or in any way related to
the work performed or to be performed or the
Equipment supplied under this Agreement, except to
the extent that such claims are due solely and
directly to the negligence of Transgenomic.
(b) HII agrees that the indemnities stated in subsection 11(a)
should be construed and applied in favor of indemnification.
To the extent permitted by law, the stated indemnities apply
(i) regardless of any strict liability or negligence
attributable to Transgenomic (excluding sole negligence) and
(ii) regardless of the extent to which the underlying harm is
attributable to the negligent or otherwise wrongful act or
omission (including breach of contract) of HII, its
subcontractors, agents or employees. HII also agrees that if
applicable law limits or precludes any aspect of the stated
indemnities, then the indemnities will be considered limited
only to the extent necessary to comply with that applicable
law. The stated indemnities continue until all applicable
statutes of limitations have run.
Section 12. TERM AND TERMINATION.
(a) TERM. The term of this Agreement begins on the date first
above written and continues until terminated by either Party
as provided herein.
(b) TERMINATION WITH CAUSE. Either Party may terminate this
Agreement during the term of this Agreement, upon written
notice, sent registered or certified mail, return receipt
requested, in the event the other Party fails to perform a
material obligation under this Agreement or otherwise is in
breach of any of its material obligations hereunder. Failure
to perform or breach of a material obligation includes,
without limitation, (i) failure to deliver Equipment as agreed
to by the Parties or (ii) failure of the Equipment delivered
to Transgenomic to conform to the specifications. The Party
receiving such notice shall have 30 days from the date of
receipt thereof to cure the failure or breach. If the Party
receiving such notice does not cure the failure or breach
within such cure period, the Party claiming breach may
terminate this Agreement by sending written notice of
termination, by certified mail, return receipt requested. The
issuance of a Blanket Purchase Order Release during the 30-day
cure period does not waive the notice of breach. If HII has
the right to terminate this Agreement pursuant to this Section
12(b), or has demanded cure of a Transgenomic default pursuant
hereto which has not yet been cured, HII may also suspend its
performance under this Agreement and any individual sales
contracts concluded pursuant hereto and, by written demand to
Transgenomic, cause all amounts owed to it by Transgenomic
which are not yet due to become immediately due and payable.
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(c) TERMINATION WITHOUT CAUSE. Transgenomic or HII may terminate
this Agreement at any time without having to state,
demonstrate or possess cause by giving written notice of
termination to the other party at least 180 days prior to the
effective date of termination.
(d) ORDER AFTER TERMINATION. Any order placed by Transgenomic and
accepted by HII after the termination of this Agreement is
governed by the provisions of this Agreement. The placing or
acceptance of post-termination or shipment of post-termination
orders does not otherwise extend the term of this Agreement.
Notwithstanding the foregoing, if terminated by HII pursuant
to Section 12(c), Transgenomic shall have the option to
purchase during the six month period after termination, the
quantity of Equipment equivalent to three times its previous
six-month's purchases and such purchases shall be governed by
this Agreement, and if terminated by Transgenomic pursuant to
Section 12(c), Transgenomic shall have the obligation to
purchase the quantity of Equipment equal to its current four
month Forecast or the prior four month period if no forecast
has been provided, and such purchases shall be governed by
this Agreement.
(e) EFFECT OF TERMINATION OR NONRENEWAL. The termination of this
Agreement shall not release either Party from the obligation
to pay any sum that may be owing (whether then or thereafter
due) or operate to discharge any liability that had been
incurred by either Party prior to any such termination. The
provisions of Sections 3(b), 3(c), 6, 7, 10, 11, 12(d), 12(e),
and 13 through 21, shall survive any termination of this
Agreement.
Section 13. EXCUSED PERFORMANCE. No Party shall be liable for or be
deemed to be in default on account of any failure to perform (except payment of
HII's invoices) if due to any cause or condition beyond reasonable control of
the nonperforming Party.
Section 14. RELATIONSHIP OF THE PARTIES. The relationship established
between HII and Transgenomic by this Agreement is that of a vendor to its
vendee. No Party is an agent of another Party and no Party has authority to bind
another Party, transact any business in another Party's name or on its behalf in
any manner or make any promises or representations on behalf of another Party.
Section 15. NOTICES. All notices and other communications shall be in
writing and shall be deemed to have been given when received. Any notice to be
given to Transgenomic shall be addressed to:
Transgenomic, Inc.
5600 South 42 Street
Omaha, NE 68107
USA
Attention: Collin J. D'Silva
Telephone: (402) 738-5480
Telecopier: (402) 733-1264
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Any notice to HII shall be addressed to:
Hitachi Instruments, Inc.
3100 North First Street
San Jose, CA 95134
USA
Attention: Mark McDonald
Telephone: (408) 955-7001
Telecopier: (408) 432-8258
Any change in address shall be promptly communicated by either Party to the
other Party.
Section 16. NO ASSIGNMENT. No Party shall assign its rights or delegate
its duties under this Agreement without written consent of the other Party. Any
assignment, delegation or transfer of this Agreement or any interest herein is
void and cause for termination of this Agreement.
Section 17. WAIVER. Any failure or delay by any Party in exercising any
right or remedy in one or many instances will not prohibit a Party from
exercising it at a later time or from exercising any other right or remedy.
Section 18. MODIFICATION. No part of this Agreement may be waived,
modified or supplemented in any manner whatsoever (including a course of dealing
or of performance or usage of trade) except by a written document signed by
authorized officers of the Parties.
Section 19. GOVERNING LAW. This Agreement and any questions, claims,
disputes or litigation concerning or arising from this Agreement shall be
governed by the laws of California, United States of America without giving
effect to the conflicts of law doctrines of any state, provided that the Federal
Arbitration Act shall apply in place of and instead of the California
Arbitration Act and the California International Arbitration Act.
Section 20. ENTIRE AGREEMENT. This Agreement and the Exhibits referred
to in this Agreement, which Exhibits are incorporated and made a part of this
Agreement by this reference, supersede and terminate any and all prior
agreements, if any, whether written or oral, between the Parties with respect to
the subject matter contained herein. Each Party agrees that it has not relied on
any representation, warranty or provision not explicitly stated in this
Agreement and that no oral statement has been made to either Party that in any
way tends to waive any of the terms or conditions of this Agreement. This
Agreement constitutes the final written expression of all terms of the
Agreement, and it is a complete and exclusive statement of those terms.
Section 21. DISPUTE RESOLUTION. The parties agree that all disputes
arising in connection with this Agreement shall be finally settled by binding
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association by one or more arbitrators appointed in accordance with said rules
and taking place in San Jose, California USA. If a party commences any action or
proceeding against the other party to enforce this Agreement or any rights
related thereto, the prevailing party in such action or proceeding shall be
entitled to recover from the other party the reasonable attorneys' fees and
other costs and expenses incurred
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by that prevailing party in connection with such action or proceeding and in
connection with enforcing any judgment, award or order thereby obtained.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
TRANSGENOMIC, INC.
By /s/ COLLIN J. D'SILVA
--------------------------------------------
Collin J. D'Silva, Chief Executive Officer
HITACHI INSTRUMENTS, INC.
By /s/ MARK MCDONALD
--------------------------------------------
Mark McDonald, President
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EXHIBIT A
EQUIPMENT DESCRIPTION AND SPECIFICATIONS
The nucleic acid analysis unit shall contain at a minimum the following
components:
<TABLE>
<CAPTION>
ITEM P/N DESCRIPTION QPA
--------------------------------------------------
<S> <C> <C>
**
</TABLE>
Changes in specifications may be initialized only by authorized individuals on
behalf of HII and Transgenomic.
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EXHIBIT B
EQUIPMENT PRICES AND TERMS
The instrument as specified in Exhibit A will be $** per system with no
minimum purchase order requirement, or for individual components, prices will be
as follows:
<TABLE>
<CAPTION>
ITEM P/N DESCRIPTION QPA UNIT PRICE EXTENSION
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
**
</TABLE>
NOTE: COMMENCING MAY 15, 2000, ITEMS 19 AND 20 WILL REPLACE ITEMS 4 AND 5,
RESPECTIVELY. AT SUCH TIME THE EFFECTIVE SYSTEM PRICE WILL BE $**.
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TERMS AND CONDITIONS
TERMS
I. The following terms apply to all purchase orders. These terms
supersede the terms that may be printed on the purchase order.
A. FOB Point is "San Jose, CA".
B. Shipments will not be insured unless they are in excess of
$400,000. If a shipment is in excess of $400,000, HII will
insure the shipment at Transgenomic's expense.
C. Shipment charges will be prepaid by HII and added to invoice.
D. For orders in excess of $75,000, payment will be due 45
days from date of shipment with payment secured by Bank
Draft for an additional charge of $120. For orders of
$75,000 or less, payment will be due 30 days from date of
shipment.
II. All Orders are subject to credit review. Current Bank Draft
Credit Limit is $1,000,000 and the open line of credit is
$120,000. Credit limits are subject to periodic review.
III. HII will not accept unsigned purchase orders or unsigned
releases against a signed purchase order.
IV. For purchase orders where the shipping method is either
unspecified or specified as "Best Way", shipment will be (3-5
day ground service) determined by HII.
CONDITIONS
I. The accompanying pricing schedule may be voided, at HII's
discretion, if a system component supplied by HII is removed
from the system configuration by Transgenomic. The only
exception to this condition is AN0-0371, the modified L-7300
column oven.
II. Pricing is effective immediately upon execution of this
document by both parties.
III. This agreement does not provide for modifications to any
existing purchase order. Such modifications, cancellations,
substitutions, or otherwise, to purchase orders that have
already been received by HII, are expressly forbidden.
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EXHIBIT C
INITIAL FORECAST
Pursuant to Section 4(a), Transgenomic forecasts the following items of
Equipment for delivery in each of the initial four months of this Agreement:
<TABLE>
<CAPTION>
MONTH EQUIPMENT
----------------------------------------------
<S> <C>
April 2000
May 200
June 2000
July 2000
</TABLE>
** Certain confidential portions of this Exhibit were omitted by means of
redacting a portion of the text indicated by two double-stricken through
asterisks "**". This Exhibit has been filed separately with the Secretary of the
Commission without the ** pursuant to the Registrant's Application Requesting
Confidential Treatment under Rule 406 of the Securities Act.
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