Hardware Distribution, Purchase and Resale Agreements

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ADVANCED TELECOMMUNICATION MODULES



INTERNATIONAL OEM AGREEMENT



This International OEM Agreement (the "Agreement") is entered into as of March 7, 1996, ("Effective Date") between Advanced Teleco
mmunications Modules, Inc. ("ATMI"), located at 1130 East Arques Ave., Sunnyvale, CA 94086 ("Manufacturer"), its parent company, Advanced Telecommunications Modules, Limited, and Com21, Inc. ("Com21"), located at 1991 Landings Dr., Mountain View, CA 94043
("Purchaser").



IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:



1. DEFINITIONS



1.1. "STANDARD PRODUCTS" shall mean the most current version of the

standard products manufactured by ATMI for general end-user

availability listed in Exhibit A attached hereto.



1.2. "SPECIAL PRODUCTS" shall mean the most current version of the

non-standard products manufactured by special use by Purchaser

listed in Exhibit A attached hereto.



1.3. "TERRITORY" shall mean that geographic area identified in Exhibit

G attached hereto.



1.4. "END-USER" shall mean any third party which obtains a Product

solely in order to fulfill its own internal needs.



1.5. "END-USER LICENSE" shall at any time during the term of

this Agreement, mean ATMI's then standard license

agreement pursuant to which End-Users are granted the right to

utilize software in or provided with ATMI products.



2. PRODUCTS AND PURCHASE COMMITMENT



2.1. PRODUCTS. The products covered by this Agreement shall be those

products listed in Exhibit A attached hereto ("Standard

Products" and "Special Products"). Products may be changed,

abandoned or added by Manufacturer, at its sole discretion,

provided that Manufacturer gives ninety (90) days' prior written

notice to Purchaser. Upon written notification of Manufacturer's

intent to change or abandon Products, Purchaser shall be granted

an option to place a one time "End of Life" Purchase Order in

addition to orders provided herein. "End of Life" purchase

orders will be accepted at any time within the ninety (90) day

notification period. If the "End of Life" purchase order is not

sufficient to satisfy Purchaser's ongoing requirements,

Manufacturer and Purchaser will negotiate with a third party

escrow company to place sufficient manufacturing specifications

to allow Purchaser to continue manufacture of the Products at

their expense. In all cases, uses of the Products will be

limited to those set forward in this document. Manufacturer

shall be under no obligation to continue the production of any

Product, except as provided herein.



2.2. MINIMUM PURCHASE COMMITMENT. During the term of this Agreement,

Purchaser shall purchase minimum lot quantities of Products as

set forth in Exhibit A attached hereto ("Minimum Purchase

Commitment").



3. LIMITATIONS ON PURCHASER'S RIGHTS TO THE PRODUCTS



3.1. OEM CERTIFICATION. Purchaser certifies that each and every

Product to be purchased under this Agreement will be purchased on

its behalf as an original equipment manufacturer and that each

and every Product will be incorporated by Purchaser or its

customers into another system that Purchaser assembles, for sale

or lease, in the regular course of Purchaser's business.

Purchaser further certifies that the system into which each and

every Product is incorporated will include the addition of

hardware and/or software supplied by Purchaser which, by an

objective examination of such











factors as cost, product features, and pricing, represent a

significant enhancement and transformation of the Products (with

regard to both value and function) and result in a system

substantially different from any of Manufacturer's systems.

Purchaser agrees that Products intended for other purposes shall

not be purchased under this Agreement. Upon Manufacturer's

request, Purchaser shall furnish to Manufacturer evidence of

compliance with the provisions of this Subsection 3.1. Purchaser

acknowledges and agrees that its initial and continuing

qualification under this Subsection 3.1. is within the sole

discretion of Manufacturer.



3.2. PURCHASE OF PRODUCTS SUBJECT TO SOFTWARE LICENSE AND OTHER

RESTRICTIONS. The sale of each Product to Purchaser and the

transfer of title for each purchased Product to Purchaser shall

not include a sale of any software, computer programs, source

codes, object codes, listings or related materials in

machine-readable or printed form (including, firmware and all

types of media), or any updates and modifications thereto that

are included (collectively, "Software") or a transfer of Software

title to Purchaser. Instead, the sale of each Product shall

include a fully paid license for Purchaser to transfer the

Software to its customers upon execution of a Software license by

Purchaser's customers in accordance with the terms of Subsection

6.1. below. Manufacturer shall retain full title to the Software

and all copies thereof and Purchaser and its customers may use

the Software only in accordance with the provisions of their

executed Software licenses. Neither Purchaser nor its customers

shall have any access to or rights in the Software source codes.

Neither Purchaser nor its customers shall have the right to copy,

modify or remanufacture any Product or part thereof.



4. TERMS IS OF PURCHASE OF PRODUCTS BY PURCHASER



4.1. TERMS AND CONDITIONS. All purchases of Products by Purchaser from

Manufacturer during the term of this Agreement shall be subject

to the terms and conditions of this Agreement.



4.2. PRICES. All prices are F.O.B. (as defined in Section 2319 of the

California Uniform Commercial Code) Manufacturer's plant

currently located at the address listed in Exhibit H or the point

of arrival in the United States. Provided that Purchaser fulfills

its Minimum Purchase Commitment in Exhibit A attached hereto, the

purchase price to Purchaser for each of the Products ("Purchase

Price") shall be a fixed percentage of Manufacturer's list price

for that Product; the percentage for each Product is as set forth

in Exhibit B attached hereto, and the current list prices for the

Products are as set forth in Exhibit C attached hereto. The

Purchase Price to Purchaser for repair parts for the Products

shall be as set forth in Exhibit D attached hereto. Manufacturer

has the right at any time to revise the prices in Exhibits C and

D with thirty (30) days' advance written notice to Purchaser, but

such prices shall not be greater than those sold to another

customer in similar volumes. Such revisions shall only apply to

all orders received after the effective date of revision. Price

increases shall not affect unfulfilled purchase orders accepted

by Manufacturer prior to the effective date of the price

increase. Price decreases shall apply to pending purchase orders

accepted by Manufacturer prior to the effective date of the

decrease but not yet shipped.



4.3. BILLBACK PROVISIONS. Purchaser's Purchase Price for each Product

is based on the Minimum Purchase Commitment set forth in Exhibit

B attached hereto. If Purchaser fails to purchase at least the

minimum number of Products specified in Exhibit B for a given

time period, then Manufacturer shall invoice Purchaser for the

difference between Purchaser's Purchase Price and Manufacturer's

standard discounted price for the quantity of Products actually

purchased, and the full amount shall be due and payable to

Manufacturer within thirty (30) days after the invoice date. The

adjusted Purchase Price shall continue in effect for a given

Product until Purchaser fails in a given time period to purchase

the number of Products necessary for the adjusted Purchase Price,

at which time the Purchase Price shall be further adjusted in

accordance with the foregoing, procedure or until Purchaser again

purchases the minimum number of the Product specified in Exhibit

B in which case the Purchase Price shall apply.



4.4. TAXES. Purchaser's Purchase Price does not include any federal,

state or local taxes that may be applicable to the Products. When

Manufacturer has the legal obligation to collect such taxes, the

appropriate amount shall be added to Purchaser's invoice and paid

by Purchaser unless Purchaser











provides Manufacturer with a valid tax exemption certificate

authorized by the appropriate taxing authority.



4.5. ORDER AND ACCEPTANCE. All orders for Products submitted by

Purchaser shall be initiated by written purchase orders sent to

Manufacturer and requesting a delivery date during the term of

this Agreement; provided, however, that an order may initially be

placed orally or by telex if a confirmational written purchase

order is received by Manufacturer within five (5) days after said

oral or telex order. To facilitate Manufacturer's production

scheduling Purchaser shall submit non- binding forecasts to

Manufacturer ninety (90) days prior to the requested month of

delivery. Purchaser shall submit binding purchase orders to

Manufacturer at least thirty (30) days prior to the first day of

the requested month of delivery. No order shall be binding upon

Manufacturer until accepted by Manufacturer in writing, and

Manufacturer shall have no liability to Purchaser with respect to

purchase orders that are not accepted. Manufacturer shall use its

reasonable best efforts to notify Purchaser of the acceptance or

rejection of an order and of the assigned delivery date for

accepted orders within fifteen (15) days after receipt of the

purchase order. No partial shipment of an order shall constitute

the acceptance of the entire order. absent the written acceptance

of such entire order. Manufacturer shall use its reasonable best

efforts to deliver Products at the times specified either in its

quotation or in its written acceptance of Purchaser's purchase



4.6. TERMS OF PURCHASE ORDERS. Purchaser's purchase orders submitted

to Manufacturer from time to time with respect to Products to be

purchased hereunder shall be governed by the terms of this

Agreement, and nothing contained in any such purchase order shall

in any way modify such terms of purchase or add any additional

terms or conditions.



4.7. INITIAL ORDER. Upon execution of this Agreement, Purchaser shall

deliver to Manufacturer a written purchase order for the

quantities of Products shown in Exhibit E attached hereto. The

order shall be non-cancelable and shall be shipped to Purchaser

based on Purchaser's delivery dates accepted by Manufacturer

based on its production schedule and receipt of an export



4.8. CHANGE ORDERS. Purchaser may utilize written change orders

without penalty for orders that have not vet been accepted by

Manufacturer. For orders that have been accepted by Manufacturer

but have not yet been shipped (excluding the initial order under

Subsection 4.7. above), Purchaser may utilize written change

orders subject to the following conditions:



4.8.1. Purchaser may delay delivery of any accepted order,

provided that the rescheduled delivery date occurs

during the term of this Agreement and provided

further that Purchaser shall pay a rescheduling fee

equal to [*] of the Purchase Price (net of freight,

taxes, and other charges) of the rescheduled

Products if Purchaser's change order is received by

Manufacturer less than thirty (30) days before the

assigned delivery date. Unless Manufacturer

otherwise agrees, no change order shall be

effective unless accompanied by the rescheduling

fee. if any, required by this Subsection 4.8.1.



4.8.2. Purchaser may cancel any order that has been

accepted by Manufacturer, provided that, if the

written change order is received by Manufacturer

less than thirty (30) days before the assigned

delivery date or if the written change order

cancels an order that has been previously

rescheduled under Subsection 4.8.1. above, then

Purchaser shall pay a cancellation charge equal to

fifteen percent (15%) of the net Purchase Price of

the canceled Products.





NOTICE PRIOR TO DELIVERY DATE RESCHEDULING CHARGE CANCELLATION CHARGE

----------------------------- ------------------- -------------------

Greater than 90 days [*] [*]

31-90 days (forecasting period) [*] [*]

0-30 days (confirmed orders) [*] [*]





4.9. PAYMENT. Manufacturer shall ship Products FOB from their

manufacturing facility and shall





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invoice upon shipment in U.S. dollars. Full payment of

Purchaser's Purchase Price for the Products and spare parts

(including any freight, taxes or other applicable costs initially

paid by Manufacturer but to be home by Purchaser) shall be made

by Purchaser to Manufacturer thirty (30) days from the date of

the invoice. Payment shall be in U.S. dollars. All exchange,

interest, banking, collection, and other charges shall be at

Purchaser's expense. At such time as Manufacturer may grant a

line of credit to Purchaser, payment terms shall be net thirty

(30) days after date of invoice, and payment shall be made by

wire transfer, check or other instrument approved by

Manufacturer. Any invoiced amount not paid when due shall be

subject to a service charge of one and one-half percent (1.5%)

per month. Purchaser shall pay all of Manufacturer's costs and

expenses (including reasonable attorneys' fees) to enforce and

preserve Manufacturer's rights under this Subsection 4.9.



4.10. SHIPPING. All Products delivered pursuant to the terms of this

Agreement shall be suitably packed depending on the method of

freight shipment in Manufacturer's standard shipping cartons,

marked for shipment at Purchaser's address set forth above, and

delivered to Purchaser or its carrier agent F.O.B. Manufacturer's

manufacturing plant, at which time (subject to Subsection 4.13.

below) title to such Products and risk of loss shall pass to

Purchaser. Unless otherwise instructed in writing by Purchaser,

Manufacturer shall select the carrier. All freight, insurance,

and other shipping expenses, as well as any special packing

expense, shall be paid by Purchaser from the FOB point. Purchaser

shall also bear all applicable taxes, duties, and similar charges

that may be assessed against the Products after delivery to the

carrier at Manufacturer's plant.



4.11. REJECTION OF PRODUCTS. Purchaser shall inspect all Products

promptly upon receipt thereof and may reject any Product that

fails in any material way to meet the specifications set forth in

Manufacturer's current brochure and specifications for that

Product. Any Product not properly rejected within thirty (30)

days after receipt of that Product by Purchaser ("Rejection

Period") shall be deemed accepted. If any unit of a Product is

shipped by Purchaser to its customer prior to the expiration of

the Rejection Period, then that unit shall be deemed accepted

upon shipment by Purchaser. To reject a Product, Purchaser shall,

within the Rejection Period, notify Manufacturer in writing or by

telex of its rejection and request a Return Material

Authorization ("RMA") number. Manufacturer shall use its best

efforts to provide the RMA number in writing or by telex to

Purchaser within three (3) business days after receipt of the

request. Within ten (10) days after receipt of the RMA number,

Purchaser shall return to Manufacturer the rejected Product,

freight prepaid, in its original shipping carton with the RMA

number displayed on the outside of the carton. Provided that

Manufacturer has complied with its obligations in this Subsection

4.11., Manufacturer reserves the right to refuse to accept any

rejected Products that do not bear an RMA number on the outside

of the carton. As promptly as possible but no later than thirty

(30) working days after receipt by Manufacturer of properly

rejected Products, Manufacturer shall, at its option and expense,

either repair or replace the Products. Manufacturer shall pay the

shipping charges back to Purchaser for properly rejected

Products; otherwise, Purchaser shall be responsible for the

shipping charges.



4.12. RETURN OF PRODUCTS AFTER REJECTION PERIOD. Unless a Product is

returned in accordance with the provisions of Manufacturer's

standard warranty for the Product described in Subsection 5.1.

below, after the Rejection Period Purchaser may not return a

Product to Manufacturer for any reason without Manufacturer's

prior written consent. For any Product for which Manufacturer

gives such consent, Manufacturer shall charge Purchaser a

restocking fee equal to fifteen percent (15%) of Purchaser's

Purchase Price for that Product and shall credit the balance of

the Purchase Price to Purchaser's account. Purchaser shall be

responsible for all shipping charges.



5. WARRANTY TO PURCHASER



5.1. STANDARD LIMITED WARRANTY. Manufacturer grants to Purchaser

Manufacturer's standard limited warranty for the Products,

including the limitations set forth in Subsections 5.2. and 5.3.

below. Specifically, Manufacturer warrants that the Product

hardware as delivered (except consumable items, such as fuses)

conform to published specifications and are free from defects in

materials and workmanship under normal use and service for the

period set forth in the applicable Product











documentation. All Product warranty periods are Product specific

and may vary by Product. The End-User warranty specifically

disclaims all other warranties relating to the Products,

including all warranties with respect to the performance of the

Products. This warranty is contingent upon proper use of a

Product in the application for which it was intended and does not

cover Products that were modified without Manufacturer's approval

or that were subjected by the customer to unusual physical or

electrical stress. The Manufacturer's Standard Limited Warranty

including terms, conditions, and warranty periods in included in

Exhibit I attached hereto.



5.2. NO OTHER WARRANTY. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH

ABOVE, MANUFACTURER GRANTS NO OTHER WARRANTIES, EXPRESS OR

IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE PRODUCTS, THEIR

FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR

OTHERWISE. MANUFACTURER GRANTS NO WARRANTIES TO PURCHASER'S



5.3. LIMITATION OF LIABILITY. MANUFACTURER'S LIABILITY UNDER THE

WARRANTY SHALL BE LIMITED TO A REFUND OF PURCHASER'S PURCHASE

PRICE. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR THE COST OF

PROCUREMENT OF SUBSTITUTE GOODS BY PURCHASER OR PURCHASER'S

CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES

FOR BREACH OF WARRANTY.



6. SOFTWARE LICENSING AND SERVICES



6.1. LICENSE TO PURCHASER. Manufacturer hereby grants to Purchaser an

[*] royalty-free, fully paid license to use, distribute,

demonstrate and sublicense the object code of the Software in the

Territory specified in Exhibit H attached hereto in carrying out

Purchaser's obligations under the provisions of this Agreement.

The license shall terminate on the termination of this Agreement

for any reason.



6.2 SUBLICENSING. Purchaser shall require each of its customers to

execute a software End-User License for each Product purchased,

in the form attached hereto as Exhibit F, as a specific condition

to the purchase of that Product. Purchaser shall maintain a file

of these such license agreements for Manufacturer's review. The

End-User License fee for each Product is included in Purchaser's

Purchase Price for the Product.



6.3. SERVICES. To each licensee of the Software, Manufacturer shall

provide the software maintenance services that are set forth in

the License.



7. IMPORT AND EXPORT REQUIREMENTS



Purchaser shall, at its own expense, pay all import and export

licenses and permits, pay customs charges and duty fees, and take

all other actions required to accomplish the export and import of

the Products purchased by Purchaser from the point of delivery

into the United States. Purchaser understands that Manufacturer

is subject to regulation by agencies of the U.S. government,

including the U.S., Department of Commerce, which prohibit export

or diversion of certain technical products to certain countries.

Purchaser warrants that it will comply in all respects with the

export and reexport restrictions set forth in the export license

for every Product shipped to Purchaser.



8. TERMS AND TERMINATION



8.1. TERM. This Agreement shall continue in force for a fixed term of

[*] from the date hereof unless terminated earlier under the

provisions of this Section 8. At the end of the fixed term, this

Agreement shall terminate automatically without notice unless

prior to that time the term of the Agreement is extended by

mutual written consent of the parties.



8.2. TERMINATION FOR CONVENIENCE. This Agreement may be canceled by

either party for any reason or no reason, whether or not extended

beyond the initial term, by giving the other party written





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Commission. Confidential treatment has been requested with respect to the

omitted portions.









notice [*] in advance.



8.3. TERMINATION FOR CAUSE. Except as set forth in Subsection 8.4.

below, if either party defaults in the performance of any

provision of this Agreement, then the non-defaulting party may

give written notice to the defaulting party that if the default

is not cured within thirty (30) days the Agreement will be

terminated. If the non-defaulting party gives such notice and the

default is not cured during the thirty-day period, then the

Agreement shall automatically terminate at the end of that



8.4. TERMINATION FOR FAILURE TO PURCHASE MINIMUM COMMITMENT. If

Purchaser during the term of the agreement to purchase the

minimum number of Products set forth in Subsection 2.2. above,

then Manufacturer may terminate this Agreement effective upon

delivery of a written notice to Purchaser, which is not cured in

sixty (60) days.



8.5. TERMINATION FOR INSOLVENCY. This Agreement shall terminate,

without notice, (i) upon the institution by or against Purchaser

of insolvency, receivership or bankruptcy proceedings or any

other proceedings for the settlement of Purchaser's debts, (ii)

upon Purchaser's making an assignment for the benefit of

creditors, or (iii) upon Purchaser's dissolution or ceasing to do



8.6. FULFILLMENT OF ORDERS UPON TERMINATION. Upon termination of this

Agreement for other than Purchaser's breach, Manufacturer shall

continue to fulfill, subject to the terms of Section 4 above, all

orders accepted by Manufacturer prior to the date of termination.



8.7. LIMITATION ON LIABILITY. In the event of termination by either

party in accordance with any of the provisions of this Agreement,

neither party shall be liable to the other, because of such

termination, for compensation, reimbursement or damages on

account of the loss of prospective profits or anticipated sales

or on account of expenditures, inventory, investments, leases or

commitments in connection with the business or goodwill of

Manufacturer or Purchaser. Termination shall not, however,

relieve either party of obligations incurred prior to the



8.8. SURVIVAL OF CERTAIN TERMS. The provisions of Sections 3.2., 4.3.,

4.9., 4.13., 5, 7, 8, 9, 10, 11, 12, and 13 shall survive the

termination of this Agreement for any reason. All Licenses

executed under the provisions of Subsection 6.2. above prior to

termination of this Agreement shall survive the termination of

this Agreement for any reason. All other rights and obligations

of the parties shall cease upon termination of this Agreement.



9. LIMITED LIABILITY TO PURCHASER AND OTHERS



MANUFACTURER'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR

SALE OF THE PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY

PURCHASER OR THE AMOUNT RECEIVED BY MANUFACTURER FOR THE

PRODUCTS. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR COSTS OF

PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT SHALL ANY

PARTY BE LIABLE TO THE OTHER OR ANY OTHER ENTITY FOR ANY SPECIAL,

CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR

BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT

SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.



10. PROPERTY RIGHTS AND CONFIDENTIALITY



10.1. PROPERTY RIGHTS. Purchaser agrees that Manufacturer owns all

right, title, and interest in the product lines that include the

Products and in all of Manufacturer's patents, trademarks, trade

names, inventions, copyrights, know-how, and trade secrets

relating to the design, manufacture, operation or service of the



10.2. SALE CONVEYS NO RIGHT TO MANUFACTURE OR COPY. The Products are

offered for sale and are sold





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Commission. Confidential treatment has been requested with respect to the

omitted portions.









by Manufacturer subject in every case to the condition that such

sale does not convey any license. expressly or by implication, to

manufacture, duplicate or otherwise copy or reproduce any of the

Products except as provided by agreement between ATML and Com21

regarding, a Hardware and Software Technology License. Purchaser

shall take appropriate steps with its customers, as Manufacturer

may request, to inform them of and assure compliance with the

restrictions contained in this Subsection 10.2.



10.3. CONFIDENTIALITY. Purchaser acknowledges that by reason of its

relationship to Manufacturer hereunder it may have access to

certain information and materials concerning Manufacturer's

business, plans, customers, technology, and products that are

confidential and of substantial value to Manufacturer, which

value would be impaired if such information were disclosed to

third parties. Purchaser agrees that it will not use in any way

for its own account or the account of any third party, nor

disclose to any third party, any such confidential information

revealed to it by Manufacturer. Purchaser shall take every

reasonable precaution to protect the confidentiality of such

information. Upon request by Purchaser, Manufacturer shall advise

whether or not it considers any particular information or

materials to be confidential. Purchaser shall not publish any

technical description of the Products beyond the description

published by Manufacturer. In the event of termination of this

Agreement, there shall be no use or disclosure by Purchaser of

any confidential information of Manufacturer, and Purchaser shall

not manufacture or have manufactured any devices, components or

assemblies utilizing any of Manufacturer's confidential

information. Purchaser's obligations shall not apply to

information that: (i) is generally known to the public, or (ii)

was in Purchaser's possession or known by it prior to receipt

from Manufacturer, or (iii) was rightfully disclosed to Purchaser

by a third party without restriction, or (iv) was independently

developed by Purchaser without use of any confidential

information of Manufacturer.



11. TRADEMARKS AND TRADE NAMES



11.1 USE. During the term of this Agreement, Purchaser shall have

the right to indicate to the public that its systems contain

Manufacturer's Products and to designate such Products under the

trademarks, marks, and trade names that Manufacturer may adopt

from time to time ("Manufacturer's Trademarks"). Purchaser shall

not alter or remove any Manufacturer's Trademark applied to the

Products at the factory. Except as set forth in this Section 11,

nothing contained in this Agreement shall grant to Purchaser any

right, title or interest in Manufacturer's Trademarks. At no time

during or after the term of this Agreement shall Purchaser

challenge or assist others to chal...

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