AND EQUIPMENT PURCHASE AGREEMENT (the "Agreement") dated as of April 1, 2005,
and between KYOCERA CORPORATION, a corporation organized under the laws of
("KC"), and AVX CORPORATION, a Delaware corporation
KC and AVX each design and manufacture equipment and machinery of a proprietary
and confidential nature used in the manufacture of capacitors and other
electrical components; and
KC and AVX are
desirous of purchasing, on the terms and conditions hereinafter described,
certain machinery and equipment to be manufactured by the other party in
accordance with designs, drawings, specifications, and proprietary information
communicated for such purpose.
THEREFORE, for and in consideration of the mutual promises and covenants
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
following terms shall have the following meanings for purposes of this Agreement
unless otherwise clearly required by the context:
shall mean the party hereto that purchases machinery and equipment manufactured
by the other party as contemplated in this Agreement.
shall mean the machinery and equipment used in the manufacture of capacitors
other electrical components purchased by the Buyer and manufactured and sold
the Seller as contemplated in this Agreement.
"Seller" shall mean the party hereto that manufactures and sells machinery
equipment to be purchased by the other party as contemplated in this Agreement.
and Sale. The
Seller will sell to the Buyer the Products ordered by the Buyer from time
time at prices and terms mutually agreed upon by the Buyer and Seller during
term of this Agreement.
purchases to be made pursuant to this Agreement will take the form of separate
orders to be communicated in writing, from time to time, from Buyer to Seller.
The Seller shall provide a written notice to the Buyer of each purchase order
accepted; such written notice will include a quotation of the total selling
amount and shipment cost for the Product.
Delivery and Payment. The
prices, dates and places of delivery, and terms of payment to be made pursuant
to this Agreement are to be specified, and agreed upon between Buyer and
in each and every such purchase order and such terms shall be equivalent
those terms which an independent unrelated party would agree to at arm's
The Buyer shall provide the Seller with a written approval accepting such
in order to authorize the Seller to commence the manufacture of the Product.
Seller agrees to furnish to Buyer, after acceptance of each order, necessary
designs, drawings, (if specifically requested by Buyer) specifications,
engineering data, and other such information.
agrees that the Products which it manufactures hereunder shall be acceptable
Buyer as to designs, specifications, standards of quality, and performance.
significant deviation from designs, specifications, or standards of quality
established or approved by Buyer, which have been communicated to Seller,
be made without the written consent of Buyer. Seller agrees that it will
establish and maintain appropriate test and inspection procedures to insure
compliance by Seller with the covenants hereinbefore set forth.
of Inspection. Seller
agrees that Buyer shall have the right of sending inspectors to the plant
plants of Seller during the course of manufacturing, and Seller shall furnish
such inspectors the fullest opportunity for observing any and all work being
carried on with respect to the Products, and of testing a reasonable number
such Products or any parts thereof.
materials and information provided by either party to this Agreement to the
other shall be treated by the recipient as Confidential and shall not be
disclosed to third parties without the written consent of the disclosing
Nothing contained herein shall be deemed to constitute the grant by the
disclosing party to the recipient of any right or license under or with respect
to any Confidential Information, trademarks, copyrights, trade secrets, patents,
patent applications, or other proprietary rights.
of this Agreement shall be one year. Subject to Section 5.02 below, this
agreement shall be automatically renewed at the end of the first year, and
succeeding year, for an additional year.
Agreement may be terminated by either party by written notice to the other
given not less than six months prior to the expiration date of the current
or at the option of one party in case the other party becomes involved in
receivership, bankruptcy or insolvency proceedings or in the event of action
any government which would render impossible performance of any obligations
under this Agreement by either party. In any case wherein a breach of any
covenants of this Agreement by either party is not remedied within a 90 day
period after receipt of written notice thereof from the other party, this
Agreement may be terminated if written notice of default without such 90
remedy is given by the other party in the manner provided in Section 6.08
of Termination. Any
termination of this Agreement pursuant to the provisions of Sections 5.01
5.02 will not prejudice either party's right to recover any amounts due
hereunder or bring any cause of action or claims against the other party
other person arising from the transactions contemplated by this Agreement.
disputes, controversies, or differences which may arise between the parties,
of or in relation to or in connection with this Agreement, or breach thereof,
shall be finally settled by arbitration pursuant to the Japan-America Trade
Arbitration Agreement of September 16, 1952, by which each party hereto is
bound. Such Arbitration shall be held in Osaka, Japan if initiated by AVX
shall be held in South Carolina if initiated by Kyocera.
failure of either party to enforce at any time any provision of this agreement
or to require at any time performance by the other party of any provision
will not be construed to be a present or future waiver of such provisions
any way affect the validity of this Agreement or any provision hereof or
right of the other party thereafter to enforce each and every such provision.
One or more express waivers by either party of any provision, condition or
requirement of this Agreement will not constitute a waiver of any future
obligation to comply with such provision, condition or requirement, unless
provided in a writing signed by the
Agreement; Amendment. This
Agreement constitutes the complete and full understanding between the parties
hereto with respect to the subject matter hereof, and this Agreement supersedes
all prior and contemporaneous agreements or understandings between the parties
hereto relating to the subject matter thereof. This Agreement may not be
modified or amended except with the written consent of both parties.
Agreement and the rights and obligations of a party under this Agreement
be assigned or transferred without the prior written consent of the other
Agreement may be executed in two or more counterparts, each of which will
constitute an original but all of which when taken together will constitute
one instrument. Counterparts may be delivered by facsimile.
provision or provisions hereof shall, to any extent, be invalid, illegal
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby and
be valid and enforceable to the fullest extent permitted by law.
contained in this Agreement are inserted as a matter of convenience and do
define, limit, extend or describe the scope of this Agreement or the intent
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered by hand or sent by prepaid telex,
cable, telecopy, or e-mail, or sent, postage prepaid, by registered, certified
or express mail (return receipt requested) or reputable overnight courier
service, and shall be deemed given when so delivered by hand, telexed, cabled
telecopied, or e-mailed, or if mailed, ten days after mailing (two business
in the case of express mail or overnight (courier service), as follows (or,at
such other address for a party as may be specified by like notice):
Kyoto 612-8501 Japan Myrtle
Beach, SC 29577
Chief Financial Officer
Third Party Beneficiaries. AVX and
agree that the execution, delivery and performance of this Agreement are
intended to create any contractual rights benefiting any third parties and
in the event of breach or failure to perform by either party of its covenants
agreements contained in this Agreement such party shall be liable only to
other party hereto.
Agreement shall be governed and interpreted in accordance with the internal
of South Carolina applicable to agreements made and to be performed entirely
within such State, without regard to conflicts of law principles.
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
of the date first written above.
Chief Executive Officer