by andbetween PEREGRINE SEMICONDUCTOR CORP. and RUBICON TECHNOLOGY, INC.
Exhibit 10.22
CONFIDENTIAL TREATMENT REQUESTED
BY RUBICON TECHNOLOGY, INC.
SECOND AMENDMENT TO SUPPLY AGREEMENT
by and between
PEREGRINE SEMICONDUCTOR CORP.
and
RUBICON TECHNOLOGY, INC.
This Second Amendment (this Amendment) further amends that certain Supply Agreement by and between Peregrine Semiconductor Corp., with offices at 9450 Carroll Park Drive, San Diego, California 92121 (Buyer) and Rubicon Technology, Inc., with offices at 9931 Franklin Avenue, Franklin Park, Illinois 60131 (Seller), dated as of March 26, 2007 (the Agreement), and is made by and between the parties to the Agreement as of November 25, 2008 (the Effective Date).
RECITALS
A. Buyer and Seller are parties to the Agreement, which provides for the purchase and sale in 2008 of Products, as defined therein, as amended by an agreement of the parties as of August 22, 2008 that modified the volume of Product purchases and sales in 2008 and provided for certain Product purchases and sales in 2009 (the Amended Agreement).
B. Buyer and Seller now desire to amend the Amended Agreement to provide for an agreement between the parties with respect to Product purchases and sales in 2008, 2009, 2010, and 2011.
C. Buyer also currently owes Seller $2,906,250, which includes certain amounts for Products purchased under the Amended Agreement. In connection with payment of amounts owed, Buyer and Seller also desire to provide for a closer strategic relationship between the two companies pursuant to which Seller will become an investor in Buyer as part of Buyers recent Series D1 Preferred Stock financing (D1 Financing) and Buyer will issue to Seller Series D1 Preferred Stock (the Series D1 Stock) in the amount of $2,000,000 pursuant to an agreement entered into as of the date of this Amendment and will pay to Seller $906,250 on the Effective Date of this Amendment.
Now, therefore, for the consideration described in the recitals above and the mutual benefits to be derived by the parties from this Amendment, the sufficiency of which is hereby acknowledged, Buyer and Seller agree to further amend the Agreement as follows:
1. Definitions. Unless otherwise expressly provided in this Amendment, each capitalized term used in this Amendment has the same meaning as provided in the Amended Agreement.
B-1
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
BY RUBICON TECHNOLOGY, INC.
2. Revision of Product Delivery and Acceptance Obligation.
(a) The Product quantities and delivery amounts described in the Amended Agreement are hereby revised such that:
(i) During 2008: Seller shall have no obligation to manufacture and sell to Buyer and Buyer shall have no obligation to purchase or accept delivery from Seller of any additional Products during 2008 as provided in the Amended Agreement;
(ii) During 2009: Seller shall manufacture and sell to Buyer and Buyer shall purchase from Seller and accept delivery of the greater of [***] [***] sapphire wafers (Wafers) or 70% of Buyers monthly Wafer purchases (for purposes of this Amendment, Buyers monthly Wafer purchases shall include any Wafers purchased by Buyer for use by Buyers fabricators or other third parties) in each month of 2009;
(iii) During 2010: Seller shall manufacture and sell to Buyer and Buyer shall purchase from Seller and accept delivery of 70% of Buyers monthly Wafer purchases, up to [***] per month, and Seller shall manufacture and sell to Buyer and Buyer shall purchase from Seller and accept delivery of 50% of Buyers monthly Wafer purchases for quantities above [***] Wafers per month in each month of 2010; and
(iv) During 2011: Seller shall manufacture and sell to Buyer and Buyer shall purchase from Seller and accept delivery of not less than 50% of Buyers monthly Wafer purchases.
(b) Seller is hereby authorized to ship to Buyer [***] Wafers in each month of 2009 without further order from Buyer and, if Buyer shall require more than such minimum number of Wafers for any month, Buyer shall deliver a notice to Seller not less than 90 days before the first day of the month in which the greater number of Wafers is to be shipped (the Purchase Month), advising Seller of the total number of Wafers that Buyer desires to be shipped in the Purchase Month. Wafers shipped in 2010 and 2011 must be shipped pursuant to Buyers purchase orders which shall be delivered to Seller not less than 90 days before the scheduled delivery date.
(c) Seller will have the right, upon reasonable notice during business hours to audit and copy Buyers books and records relating to Wafer purchases from any source, the use of Wafers in Buyers products and the sale of such products and to interview Buyers personnel with respect to the same. Seller will bear the cost of such audits unless Seller determines pursuant to an audit that Buyer has purchased less than 50% of its Wafer requirements during any month, in which case, Buyer shall reimburse Seller for all of its audit costs and shall, within 45 days or such longer time period as Seller may require, purchase the number of Wafers that Buyer was obligated to purchase from Seller during any month in which Buyer failed to purchase at least 50% of its Wafer requirements from Seller.
B-2
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
BY RUBICON TECHNOLOGY, INC.
3. Price and Specifications.
(a) Buyer shall pay Seller [***] per Wafer for the first [***] Wafers delivered pursuant to this Amendment through 2010.
(b) Pricing in 2009 and 2010 for Wafers delivered after [***] Wafers have been delivered pursuant to this Amendment will be as follows:
Quarterly Volume | Price per Wafer | |||||
£ [***] | [***] | |||||
[***] | [***] | |||||
[***] | [***] | |||||
[***] | [***] | |||||
[***] | [***] | |||||
[***] | [***] | |||||
[***] | [***] |
For clarity, the first pricing reduction, from [***] to [***], will apply to the first Wafer delivered after [***] Wafers are delivered. However, further incremental price decreases will occur only if the total quantity for each pricing increment is purchased during a calendar quarter (for purposes of this Amendment, a calendar quarter means January March, April June, July September, or October December). Therefore, if after [***] Wafers are delivered and Buyer does not order more than [***] Wafers in any calendar quarter, then the price per Wafer will remain at [***].
(c) Commercially reasonable pricing (based upon previous pricing, anticipated quantities for 2011, and market conditions) for the Wafers to be purchased by Buyer from Seller in 2011 will be agreed upon by the parties before September 30, 2010.
(d) Seller will provide a [***] discount to Buyer for each Wafer delivered to Buyer pursuant to this Amendment that does not meet grade 1 specifications as defined in Attachment A hereto, up to the first [***] Wafers delivered. After [***] Wafers are delivered, all Wafers delivered to Buyer shall meet the grade 1 specifications.
4. Issuance of Series D1 Shares and Payment. On the Effective Date: (a) Buyer will transfer to Seller 1,345,444 unencumbered shares of Series D1 Stock (valued at a total of $2,000,000) and Seller will execute all agreements and other documents executed by other investors in Buyers D1 Financing; and (b) Buyer will pay to Seller by electronic funds transfer in accordance with instructions to be provided to Buyer by Seller, $906,250. If the foregoing conditions precedent (the Conditions) to the effectiveness of this Amendment are not met, then this Amendment will be void and of no effect. If the foregoing Conditions are met, then Buyers obligation to pay Seller $2,906,250 will have been satisfied.
B-3
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
BY RUBICON TECHNOLOGY, INC.
5. Release and Waiver. Buyer and Seller agree that effective upon the Effective Date and subject to the completion of the Conditions in Section 4 above, Seller shall have no obligation to sell and Buyer shall have no obligation to purchase the Products in the quantities set forth on Attachment A to the Agreement or in the Amended Agreement and neither Seller nor Buyer shall have any liability or obligation to the other party with respect to the failure of Buyer to purchase or Seller to sell the quantity of Products set forth in the Amended Agreement. Buyer and Seller further agree that as of the Effective Date and subject to the completion of the Conditions in Section 4, Buyer shall have paid Seller in full for all Products purchased and delivered under the Amended Agreement and shall have no further payment obligation with respect to any Products delivered by Seller to Buyer under the Amended Agreement as of the Effective Date. Upon the Effective Date and subject to the completion of the Conditions in Section 4, Buyer and Seller each hereby agree, to the fullest extent permitted by applicable law, to waive, release and promise never to assert any claims or causes of action, whether or not now known, against the other party with respect to the failure of Buyer to purchase or failure of Seller to sell the Products in the quantities set forth on Attachment A to the Agreement or in the Amended Agreement or with respect to the payment of any Products delivered by Seller to Buyer prior to the Effective Date.
6. No Other Changes. Except as is expressly provided in this Amendment, the Amended Agreement is not amended or revised in any other way and remains in full force and effect and this Amendment shall be considered a part thereof.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Amendment as of the Effective Date above.
Rubicon Technology, Inc. | ||
By: | /s/ Raja Parvez | |
Raja Parvez, President & CEO | ||
Peregrine Semiconductor Corp. | ||
By: | /s/ Jim Cable | |
Jim Cable, President & CEO |
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* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
BY RUBICON TECHNOLOGY, INC.
ATTACHMENT A
TO 2ND AMENDMENT TO RUBICON/PEREGRINE SUPPLY AGREEMENT
1 | Purpose |
This document specifies the characteristics of [***] Sapphire Wafers.
2 | Scope |
This document defines the requirements for purchase of [***] Sapphire Wafers for Peregrine Semiconductor and its foundries.
3 | Authority and Responsibility |
This document is controlled by the Operations Department of Peregrine Semiconductor.
4 | References |
SEMI MF1390-0707 - Test Method for Measuring Warp on Silicon Wafers by Automated Non-Contact Scanning
SEMI MF534-0707 - Test Method for Bow of Silicon Wafers
SEMI MF657-0707 - Test Method for Measuring Warp and Total Thickness Variation on Silicon Wafers by Non-Contact Scanning
SEMI MF1530-0707 - Test Method for Measuring Flatness, Thickness, and Total Thickness Variation on Silicon Wafers by Automated Non-Contact Scanning
SEMI M13-1103 - Specification for Alphanumeric Marking of Silicon Wafers
SEMI AUX015 - SEMI OCR Character Outlines
5 | Definitions |
5.1 | [***] |
5.2 | [***] |
5.3 | [***] |
6 | Specification |
Rubicon Proposal 19-Sep-08
B-5
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
150 mm, Grade 1, Sapphire Specification
(Part 1)
ITEM | CHARACTERISTIC | UNITS | TARGET | TOLERANCE | MEASUREMENT METHOD | FREQUENCY | NOTE | |||||||||
MANUFACTURING METHODS | GROWING METHOD | [***] | ||||||||||||||
SURFACE ORIENTATION | degree | [***] | [***] | XRD | All wafers | [***] | ||||||||||
PHYSICAL DIMENSIONS | WAFER DIAMETER | mm | [***] | [***] | Micrometer | 5 wfrs/lot | ||||||||||
WAFER REGISTRATION | SEMI FLAT | mm | [***] | [***] | Micrometer | 5 wfrs/lot | ||||||||||
JEITA FLAT | mm | [***] | [***] | Micrometer | 5 wfrs/lot | |||||||||||
THICKNESS | µm | [***] | [***] | Micrometer | 5 wfrs/lot | |||||||||||
FLAT LOCATION | degree | [***] | [***] | XRD | 10 wfrs/lot | See Figure A. | ||||||||||
FLATNESS | QUALITY AREA | [***] | ||||||||||||||
GLOBAL FLATNESS | TOTAL THICKNESS VARIATION | µm | [***] | Tropel or equivalent | All wafers | [***] | ||||||||||
FOCAL PLANE DEVIATION (GF3D) | µm | [***] | [***] | |||||||||||||
WARP | µm | [***] | [***] | |||||||||||||
BOW | µm | [***] | [***] | |||||||||||||
SITE FLATNESS | SFQR | µm | [***] | Tropel or equivalent | All wafers | [***] | ||||||||||
SITE SIZE | mm | [***] | ||||||||||||||
PERCENT USABLE AREA | % | [***] | ||||||||||||||
EDGE BEVEL | BEVEL METHOD | [***] | ||||||||||||||
1. EDGE CORNER SHAPE | [***] | Profile Projector | 1 wafer per lot | See Figure B. | ||||||||||||
2. BEVEL EDGE SHAPE | [***] | |||||||||||||||
3. BEVEL WIDTH @ FRONT | µm | [***] | [***] | |||||||||||||
4. BEVEL WIDTH @ BACK | µm | [***] | [***] | |||||||||||||
5. EDGE THICKNESS | µm | [***] | [***] | |||||||||||||
EDGE CHIPS | QUANTITY | count | [***] | Microscope | All wafers | [***] | ||||||||||
WIDTH | mm | [***] | ||||||||||||||
LENGTH | mm | [***] | ||||||||||||||
MATERIAL DEFECT | DISLOCATION DENSITY | count/cm2 | [***] | microscope | 1 per 6 months | [***] | ||||||||||
BUBBLES | count | [***] | Visual | All wafers | ||||||||||||
SLIPS, TWINS & LINEAGE | count | [***] | Visual | All wafers | [***] | |||||||||||
CRACKS & FRACTURES | count | [***] | Visual | All wafers | [***] | |||||||||||
METALLIC IMPURITY | Na, K, Ca, Cr, Fe, Ni, Z | ppm | [***] | ICP-MS | 1 per 12 months |
B-6
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
ITEM | CHARACTERISTIC | UNITS | TARGET | TOLERANCE | MEASUREMENT METHOD | FREQUENCY | NOTE | |||||||||
FRONT SURFACE | SURFACE ROUGHNESS | Ra | Å | [***] | AFM | 1 wafer/lot | [***] | |||||||||
SCRATCH | [***] | Microscope | All wafers | [***] | ||||||||||||
PITS, SPOTS, DIMPLES & STAINS | [***] | Microscope | All wafers | [***] | ||||||||||||
GROSS CONTAMINATION | [***] | Microscope | All wafers | [***] | ||||||||||||
PARTICULATE | Larger than 0.3 µm | count | [***] | Candela CS10 | All wafers | [***] | ||||||||||
|
| [***] | ||||||||||||||
SURFACE METALLIC CONTAMINATION | Na | 1/cm2 | [***] | ICP mass spectroscopy | 1 wafer per half year. | |||||||||||
K, Ca, Ti, Cr, Cu, Zn, Ni, Fe | 1/cm2 | [***] | TXRF | 1 wafer per wet clean solution change | ||||||||||||
BACK SURFACE | SURFACE ROUGHNESS | Ra | µm | [***] | [***] | Kosaka | 1 wafer per Lap batch | [***] | ||||||||
Ra | µm | [***] | [***] | Tencor Alpha-Step | 1 wafer per Lap batch | |||||||||||
SCRATCHES | [***] | Microscope | All wafers | |||||||||||||
BUMPS | [***] | Naked eye | All wafers | |||||||||||||
VISIBLE CONTAMINATION | [***] | Naked eye | All wafers | |||||||||||||
SAW MARKS | [***] | Naked eye | All wafers | |||||||||||||
WATER STAINS, WATER SPOTS, SLURRY RESIDUE | [***] | Naked eye | All wafers | |||||||||||||
TRANSPARENT AREA | [***] | Naked eye | All wafers | |||||||||||||
WAFER MARKING | Lumonics or equivalent | All wafers | [***] |
B-7
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Figure A [***]
Figure C [***]
Figure B [***]
B-8
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
7 | Quality |
7.1 | Gauge Study: The supplier shall be required to perform a gauge study on all equipment used for obtaining quality data. |
7.2 | Quality Data: |
7.2.1 | Lot Data: Particle and flatness data for each lot shall be sent electronically to Peregrine at the time the lot is shipped from the supplier. |
7.2.2 | Periodic Data: Each quarter, the supplier shall summarize the periodic quality data in a report. This report shall be sent to Peregrine within 2 weeks of the end of the quarter. |
8 | Records |
8.1 | Quality Records shall be kept by the supplier for a period of seven years. |
9 | Revision History |
DCN# | Revision | Date | Originator | Description of Change | ||||
B-9
* [***]: Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.