AMENDED AND RESTATED
AGREEMENT
by and between
JDS FITEL INC.
and
OPTICAL COATING LABORATORY, INC.
TABLE OF CONTENTS
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AMENDED AND RESTATED
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, made as of this 15th day of April,
1999, by and between JDS FITEL Inc., a Canadian corporation, having its
principal place of business at 000 Xxxx Xxxx Xxxx Xxxx, Xxxxxx, Xxxxxxx X0X 0X0
Xxxxxx ("JDS" and "Distributor") and OPTICAL COATING LABORATORY, INC., a
Delaware corporation, having its principal place of business at 0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000-0000 ("OCLI").
W I T N E S S E T H :
WHEREAS, JDS and OCLI entered into an agreement dated February 1, 1997 to
combine their respective areas of expertise and capabilities in a joint effort
for WDM Product Business as defined therein;
WHEREAS, the parties agree that the WDM Business shall be managed with the
intent to make profits; and
WHEREAS, JDS and OCLI wish to expand their joint efforts in the WDM
Business by amending and restating their agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree to the following:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following definitions
shall apply:
"Company" shall have the meaning as set out in Section 7.1.
"Company Profit" with respect to the Company shall mean the Company=s
revenues, including from transactions with the Distributor or with any party to
this Agreement, from the WDM Products Business, including related activities
such as licensing of WDM Product or WDM Optical Filter technology, pursuant to
this Agreement less Company related Costs. "Company Profit" can be either a
profit or a loss.
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"Confidential Information" shall have the meaning as set out in Section
14.1.
"Cost" shall be defined as set forth in Exhibit A attached hereto.
"Fiscal Year" shall mean a 12 month period of time ended October 31.
"Fiscal Quarter" shall mean the quarters ended January 31, April 30, July 31 and
October 31.
"Management Committee" shall have the meaning as set out in Section 10.1.
"Non-assignable" shall mean personal, non-transferable, indivisible and
non-assignable.
OCLI Customer shall mean a single customer as determined by the Management
Committee.
"Passive" shall mean not electrically powered or electrically controllable
or adjustable.
"Planar Waveguides" shall mean planar waveguides performing a wavelength
discrimination function.
"Profit" shall mean the sum of the Transaction Profit of each party plus
Company Profit. "Profit" can be either a profit or a loss.
"Transaction Profit" with respect to any party shall mean that party's
revenues, including from transactions with the Company or with other parties to
this Agreement from the WDM Products Business, including related activities such
as licensing of WDM Product or WDM Optical Filter technology, pursuant to this
Agreement less such party's related Costs. "Transaction Profit" can be either a
profit or a loss. For greater certainty, Transaction Profit shall not include
any revenue, Costs or Company Profit recognized by either party as a result of
either consolidating, equity accounting or cost accounting for a party's
ownership interest share in the Company.
"WDM Optical Filters" shall mean WDM Optical Filters A, WDM Optical
Filters B, WDM Optical Filters C and WDM Optical Filters D.
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"WDM Optical Filters A" shall mean any and all dielectric (thin film)
optical filters that are intended to be used in WDM Products A.
"WDM Optical Filters B" shall mean any and all dielectric (thin film)
optical filters that are intended to be used in WDM Products B.
"WDM Optical Filters C" shall mean any and all dielectric (thin film)
optical filters that are intended to be used in WDM Products C.
"WDM Optical Filters D" shall mean any and all dielectric (thin film)
optical filters that are intended to be used in WDM Products D.
"WDM Products" shall mean (a) WDM Products A and WDM Products B, having
three (3) or more fiber-coupled ports, (b) WDM Products C and WDM Products D
having only two (2) fiber-coupled ports. For greater certainty where a WDM
Product is combined with or integrated into another device which provides
additional features or functions not essential to the operation of the WDM
Product, including without limitation amplification, switching or adjustable
attenuation, the value of the WDM Product shall be considered to be the fair
market value of the WDM Product by itself without including any of the value of
the remainder of the device.
"WDM Products A" shall mean Passive wavelength division multiplexing or
de-multiplexing components of four or more channel capability using optical
filters or some other form of wavelength discrimination.
"WDM Products B" shall mean Passive wavelength division multiplexing or
de-multiplexing components using optical filters or some other form of
wavelength discrimination with all operating channels within the wavelength
range of 1500 to 1580 nanometers and with eighty percent (80%) transmission
bandwidth greater than fourteen (14) nanometers.
"WDM Products C" shall mean Passive wavelength division de-multiplexing
components using optical filters or some other form of wavelength discrimination
with one fixed, non-adjustable passband, within the wavelength range of 1500 to
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1580 nanometers, having an eighty percent (80%) transmission bandwidth which is
within a one percent (1%) transmission bandwidth of less than or equal to four
(4) nanometers.
"WDM Products D" shall mean Passive gain equalization components using
optical filters or some other form of wavelength discrimination designed to
match the spectral characteristics to an ideal optical spectrum for optical
amplifier gain flattening applications over a specified optical bandwidth of at
least six nanometers.
"WDM Product Business" shall mean the business of design, development,
manufacture, supply of WDM Optical Filters or WDM Products, sales to Distributor
and technical product marketing support to assist Distributor in sales and
marketing of WDM Products, all related to WDM Optical Filters or WDM Products.
ARTICLE II
SCOPE OF RELATIONSHIP
2.1 The relationship created between JDS and OCLI as described in more
detail herein encompasses a joint venture activity relating to the design and
manufacture of WDM Optical Filters; the design and manufacture of WDM Products;
and the marketing and sale of WDM Products. From this joint venture activity JDS
will realize two-thirds of all Profits for WDM Products A, B and C and OCLI will
realize one-third of all such Profits, and JDS will realize one-half of all
Profits for WDM Products D and OCLI will realize one-half of all such Profits,
all subject to adjustment and the provisions as set forth herein. The activities
for the design, test and manufacture of WDM Optical Filters are to be provided
by OCLI and the design, assembly, test and manufacture and test of WDM Products
are to be provided by JDS and upon the occurrence of certain circumstances as
set out herein, these activities may be transferred to a separate legal entity.
Furthermore, each party will cross-license intellectual property to the other
party as set forth herein. JDS shall be the exclusive entity through which WDM
Products from this joint venture activity are sold and JDS will perform all
marketing and sales activities for WDM Products, with technical assistance from
OCLI as set out herein. OCLI may perform marketing and sales activities for WDM
Products D solely to the OCLI Customer.
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OCLI represents that it has expertise in optical coating technology and
optical design capabilities for making optical filters and is currently
developing technology to address current and future market demands for
telecommunications applications. JDS represents that it has know-how and
expertise in fiber optic component technology including packaging and
development, design and test, and manufacturing capabilities for fiber optic
components, including WDM Products, for telecommunications applications, and is
currently developing technology to address current and future market demands for
telecommunications applications, and also has marketing and sales expertise
relating to such optical components. At least until the establishment of the
Company, it is intended that OCLI will use its expertise and facilities for
manufacturing WDM Optical Filters for the joint venture, and JDS will use its
expertise and facilities for manufacturing WDM Products for the joint venture.
ARTICLE III
MANUFACTURE OF WDM PRODUCTS
3.1 Manufacture of WDM Optical Filters by OCLI. Subject to Section 7.5,
OCLI agrees to commit all resources necessary and appropriate to provide
manufacturing services to manufacture and supply WDM Optical Filters for use by
JDS or the Company in WDM Products which are based on Distributor=s customer
requirements which have been translated into product, proof of concept product
or prototype product specifications by Distributor where the required WDM
Optical Filters specifications have been determined in consultation with OCLI
with respect to WDM Optical Filters provided by OCLI. For greater certainty, JDS
may also make and supply WDM Optical Filters for use in WDM Products, subject to
Management Committee review based on the cost, available technology or capacity
relating to WDM Optical Filters.
3.2 Supply of WDM Products by JDS. Subject to Section 7.5, JDS agrees to
commit all resources necessary and appropriate to provide services to design,
assemble, test and supply to OCLI as required by OCLI or the Company WDM
Products which are based on Distributor=s customer requirements which have been
translated into product, proof of concept product or prototype product
specifications by
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Distributor in consultation with JDS with respect to WDM Products provided by
JDS.
3.3 Supply of WDM Optical Filters. Prior to formation of the Company, OCLI
shall provide WDM Optical Filters to JDS as customer furnished material for use
in the manufacture of the WDM Products unless JDS has manufactured filters for
use in WDM Products D under license from OCLI pursuant to Section 3.6.
3.4 Price for JDS's Services. Prior to formation of the Company, and
subject to Section 6.1 JDS shall charge OCLI for the design, assembly and
testing of the WDM Products at JDS's Cost to design, assemble and test the WDM
Products plus a percentage xxxx up fee of such Cost as agreed by the Management
Committee. JDS shall invoice OCLI for WDM Products for which testing has been
completed and are ready for shipment to Distributor or Distributor's customers.
3.5 Terms and Conditions. Payment terms for the sale of WDM Products and
services by JDS to OCLI shall be net 45 days from the date of invoice. All
payments not received when due shall be subject to an additional charge of 1.5%
per month of the unpaid amount until the date of payment.
3.6 Licensing of Technology. Subject to Section 11, Section 13 and
subsection (d) below and a Business Plan approved by the Management Committee,
where a particular WDM Optical Filters D or WDM Product D, is commercially
manufacturable as determined by the Management Committee, and where the
Management Committee has determined that it is in the best interests of the
joint venture that OCLI may also manufacture such WDM Product D ("Approved WDM
Product D") or that JDS may also manufacture such WDM Optical Filters D
("Approved WDM Optical Filters D"), then:
(a) License: OCLI and JDS shall each license the other on a royalty
free, nonexclusive, Non-assignable basis all intellectual property
rights, excluding trademarks, service marks and tradenames, owned by
the other party and utilized by such party in the manufacture,
(including the design of the Approved WDM Optical Filters D or
Approved WDM Products D to be manufactured) of Approved WDM Optical
Filters D in the case of
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OCLI, and of Approved WDM Products D in the case of JDS ("Licensed
IP"). Except as set forth in subsection (e) below, the parties agree
that Licensed IP can only be used for the manufacture of Approved
WDM Optical Filters D in the case of JDS, and Approved WDM Products
D in the case of OCLI, and for no other purpose.
(b) Technical Assistance: OCLI and JDS shall at such party's Cost
provide technical assistance to the other party that the furnishing
party considers reasonably necessary relating to Licensed IP and at
mutually agreeable times so as not to adversely affect either
party's own operations and to help such other party to manufacture
Approved WDM Optical Filters D in the case of JDS, and Approved WDM
Products D in the case of OCLI ("Technical Assistance"). The Cost of
providing Technical Assistance shall be included in the Costs of the
joint venture.
(c) Subsidiary Intellectual Property: At the date when a particular WDM
Optical Filters D or WDM Products D becomes Approved WDM Optical
Filters D or Approved WDM Products D, intellectual property rights
owned by either party's subsidiaries in which the party has majority
ownership and where the party has control to cause said subsidiaries
to grant an intellectual property rights license relating to the
Approved WDM Optical Filters D or Approved WDM Products D which is
necessary to enable the joint venture to conduct WDM Product
Business, shall be offered to the other party on a nonexclusive,
Non-assignable royalty free basis if possible, or failing which on a
commercially reasonable basis. Where either party subsequently
attains a majority ownership and where the party has control to
cause said subsidiaries to grant an intellectual property rights
license relating to the Approved WDM Optical Filters D or Approved
WDM Products D which is necessary to enable the joint venture to
conduct WDM Product Business, the party shall offer to the other
party on a nonexclusive, Non-assignable royalty free basis if
possible, or failing which on a commercially reasonable basis,
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such subsidiaries' intellectual property at the date such party
attains such position.
(d) Improvements: Each party agrees to license back all improvements
made to Licensed IP to the other party on a royalty free,
nonexclusive, assignable basis.
(e) Notwithstanding the foregoing, OCLI shall be allowed to design,
develop, manufacture and sell WDM Product D only to the OCLI
Customer using only a JDS designed commercially manufacturable WDM
Product D where the license granted under Section 3.6(a), the
technical assistance required under Section 3.6(b) and the rights
granted under Sections 3.6(c) and (d) shall cover such activity by
OCLI related solely to the manufacture of the JDS designed
commercially manufacturable WDM Product D, whether or not such WDM
Products D sold to the OCLI Customer are Approved WDM Products D.
3.7 Marking of WDM Products. All WDM Products D manufactured and sold
pursuant to this Agreement, and all technical and marketing literature, shall be
marked with the names and trademarks of both JDS and OCLI as determined by the
Management Committee. WDM Products A, B and C shall also be marked as required
by the Distribution Agreement.
ARTICLE IV
DISTRIBUTION AGREEMENT
4.1 Contemporaneously with the execution of this Agreement, OCLI and
Distributor shall enter into that certain Distribution Agreement attached hereto
as Exhibit B pursuant to which OCLI shall sell WDM Products only to Distributor
as the sole and exclusive distributor of WDM Products at a price equal to OCLI's
Cost of WDM Products plus a percentage xxxx up fee of such Cost as agreed by the
Management Committee; notwithstanding the foregoing, OCLI may sell WDM Products
D only to the OCLI Customer directly.
ARTICLE V
USE OF THIRD PARTY WDM OPTICAL
FILTER AND ASSEMBLY SERVICES SUPPLIERS
5.1 Price Competition. The Management Committee may decide whether JDS, in
the case of purchase WDM Optical
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Filters, or OCLI, in the case of WDM Products assembly Services, or the Company
for both, may purchase WDM Optical Filters or WDM Products assembly Services
from third parties (where third parties in this Agreement shall include
non-wholly owned subsidiaries of either party) if it determines that the Profits
would be greater.
5.2 Competition Other Than Price. In the event that OCLI, in the case of
WDM Optical Filters, JDS, in the case of WDM Products assembly Services or the
Company for both, is unable to provide WDM Optical Filters or WDM Products
assembly Services, as required by Distributor=s customers, based on lack of
technology, including but not limited to capacity, yield or delivery timeframes,
the Management Committee may authorize JDS, in the case of WDM Optical Filters,
OCLI, in the case of WDM Products assembly Services, or the Company for both to
purchase WDM Optical Filters or WDM Products assembly Services from third
parties.
5.3 Price of Third Party Filters or Services Included in Costs. In the
event WDM Optical Filters or WDM Product assembly services are purchased from
third parties pursuant to Section 5.1 or 5.2, the price paid for such filters or
such services are to be included in Costs for the purpose of determining profit
sharing under Article VI.
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ARTICLE VI
PROFIT SHARING
6.1 Quarterly Profit Sharing Adjustments. Within 30 days from the end of
each Fiscal Quarter thereafter, OCLI, JDS, Distributor and the Company when
formed will exchange accounting information regarding each party's respective
Costs incurred and Profits realized from the WDM Products Business. The sale
price of WDM Products from OCLI or the Company to Distributor under the
Distribution Agreement or alternately prior to formation of the Company the
xxxx-up fee under Section 3.4, shall be adjusted such that the portion of
Profits realized by OCLI are equal to one-third for WDM Products A, B and C and
one-half for WDM Products D and the portion of Profits realized by JDS and
Distributor combined are equal to two-thirds for WDM Products A, B and C and
one-half for WDM Products D, of the Profits realized pursuant to the terms of
this Agreement, subject to adjustment under Sections 6.2 and 6.3, and the
provisions of Section 6.4. The profit sharing adjustment of each party=s portion
of Profits shall be made retroactively for the Fiscal Quarter just ended in the
form of a credit from one party to the other and prospectively such that the
profit sharing expected for the current Fiscal Quarter will conform to the
requirements of this section.
6.2 Profit Sharing for Non-Optical Filter WDM Product A, B and C. In the
event the amount of sales of WDM Products A, B and C by Distributor that
incorporate means of wavelength selection other than WDM Optical Filters or
other elements providing means of wavelength discrimination which all have
originated from OCLI during any Fiscal Quarter constitute more than 50% of the
amount of all sales of WDM Products A, B and C by Distributor, then the
adjustment called for by Section 6.1 shall be such that the portion of Profits
realized by OCLI are equal to one-quarter and the portion of Profits realized by
JDS and Distributor combined are equal to three-quarters of the Profits realized
pursuant to the terms of this Agreement. In the case of WDM Products A, B and C
containing both WDM Optical Filters and other means of wavelength selection,
sales by Distributor shall be allocated to WDM Products A, B and C sales in
accordance with the relative value of the WDM Optical Filter elements or other
elements providing means of wavelength discrimination which all have originated
from OCLI to the total value of all
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wavelength selection elements employed in the WDM Products A, B and C, as
determined by the Management Committee. Notwithstanding the foregoing, the said
other elements providing means of wavelength discrimination in WDM Products A, B
and C which all have originated from OCLI, shall only be used in the calculation
in this subsection if such elements were not available from JDS at the time
introduced by OCLI.
6.3 Profit Sharing for Non-Optical Filter WDM Product D. In the event the
amount of sales of WDM Products D by Distributor that incorporate means of
wavelength selection other than WDM Optical Filters or other elements providing
means of wavelength discrimination which all have originated from OCLI during
any Fiscal Quarter constitute more than 50% of the amount of all sales of WDM
Products by Distributor, then the adjustment called for by Section 6.1 shall be
such that the portion of Profits realized by OCLI are equal to 38%. In the case
of WDM Products containing both WDM Optical Filters and other means of
wavelength selection, sales by Distributor shall be allocated to WDM Products
sales in accordance with the relative value of the WDM Optical Filter elements
or other elements providing means of wavelength discrimination which all have
originated from OCLI to the total value of all wavelength selection elements
employed in the WDM Products, as determined by the Management Committee.
Notwithstanding the foregoing, the said other elements providing means of
wavelength discrimination in WDM Products which all have originated from OCLI,
shall only be used in the calculation in this subsection if such elements were
not available from JDS at the time introduced by OCLI.
6.4 Profit Sharing for WDM Product D for JDS Fiber Amps.
Notwithstanding any term to the contrary, for sales of WDM Product D to
JDS as customer for its use in fiber amplifiers (Fiber Amps ), OCLI's share of
Profits shall be as follows: 5% during Fiscal Year 1999; 7.5% during Fiscal Year
2000; 10% during Fiscal Year 2001; 12.5% during Fiscal Year 2002; and 15%
thereafter. For such sales of WDM Product D to JDS as customer, the sales price
shall be a `best customer' price based on the sales price for equivalent WDM
Product D products on substantially similar terms to third parties, all as
determined by the Management Committee. For greater certainty JDS as customer
may
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purchase any or all of its WDM Product D requirements for Fiber Amps from third
parties and all such activities shall be deemed to be completely outside the
scope of this Agreement.
6.5 Right to Inspect and Audit Records. Each party hereto shall have the
right, upon reasonable notice and during normal business hours, to inspect and
conduct an audit of any other party's or the Company=s accounting records for
the purpose of verifying such party's Costs and Profits.
6.6 Audit Costs Necessitated by Agreement. Except for Section 6.5, in the
event a financial audit other than a party=s normal annual or quarterly audit
required for its own business, is required at any time to determine any matter
or calculation hereunder, the costs of such audit shall be included in Costs.
ARTICLE VII
FORMATION OF JOINT VENTURE COMPANY
7.1 Option to Form Joint Venture Company. Subject to Section 7.2 and only
where the sales of WDM Products by Distributor exceeds forty million dollars
($US40,000,000) for any four consecutive Fiscal Quarters, either party hereto
may exercise an option to cause to be formed a joint venture company (the
ACompany"). Such option shall be exercisable by either party by giving sixty
(60) days written notice thereof to the other party.
7.2 Formation of Joint Venture Company. Prior to either party exercising
the option under Section 7.1, OCLI and JDS shall upon written notice negotiate
in good faith for a period of sixty (60) days following such notice and agree
upon all the terms and conditions relating to the formation and operation of the
Company, including but not limited to the terms set forth below. Where the
parties are not able to agree on all such terms or conditions, the terms and
conditions the parties have not agreed upon shall be addressed in accordance
with Section 7.6 below.
(a) Form. The Company will be formed as a general partnership, limited
liability company or other "flow-through" entity in order to minimize or
eliminate taxes at the Company level.
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(b) Location. The Company will be located in a location agreed upon by
OCLI and JDS which provides a favorable tax treatment for all parties, location
to competent labor force, access to markets and convenience to the management of
OCLI and JDS.
(c) Capital. OCLI and JDS will provide capital in the form of equity or
working capital loans on commercially reasonable terms as needed.
(d) Licensing of Technology. Subject to Sections 11 and 13.1, OCLI and JDS
shall license the Company on a royalty free, nonexclusive, Non-assignable basis
all intellectual property rights, excluding trademarks, service marks and
tradenames, owned by either party for WDM Products Business. OCLI and JDS shall
at no charge provide technical assistance to the Company to help the Company to
implement, and utilize in the Company=s WDM Product Business, such licensed
intellectual property rights. Intellectual property rights owned by either
party's subsidiaries in which the party has majority ownership and where the
party has control to cause said subsidiaries to grant an intellectual property
rights license relating to the WDM Products Business which is necessary to
enable the Company to conduct WDM Product Business, shall be offered to the
Company on a nonexclusive, Non-assignable basis for a commercially reasonable
royalty.
(e) Governance. The governance and control of the Company will be
negotiated by the parties acting in good faith prior to the exercise of the
option under Section 7.1, by taking into consideration, in addition to all other
factors: (i) OCLI=s desire to structure the Company to enable OCLI to
consolidate the Company into its financial statements and (ii) JDS=s desire to
adequately address JDS= need to feel comfortable with the fairness and degree of
control it has over the Company by taking into consideration, in addition to all
other factors, JDS's participation in Profits under this Agreement including its
status as exclusive distributor under the Distribution Agreement.
(f) Profit Sharing. The parties= respective percentage interest in the
earnings and profits of the Company shall be such as to reflect the sharing of
Profits provided for in Article VI of this Agreement.
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7.3 Assignment of Distribution Agreement. Upon formation of the Company,
the Distribution Agreement shall be assigned by OCLI to the Company.
7.4 Assignment of Terms of the Agreement. The Company, shall also agree to
be bound by the same obligations that JDS and OCLI have to each other before the
formation of the Company that relate to protecting each party=s interests,
including but not limited to, Sections 3.1 and 3.2, Article IV Distribution;
Article VI Profit Sharing; Article VIII Exclusivity; Article IX Termination;
Article XI Research and Development; Article XIII Acquisitions; Article XIV
Confidential Information and Article XV Miscellaneous.
7.5 Activities of the Company. After the formation of the Company, the
parties shall determine what activities as set out in Article III shall be
assumed by the Company or shall continue to be provided by one or both of the
parties.
7.6 Failure to Agree on Terms of the Company. In the event the parties do
not reach agreement on all the terms and conditions relating to the formation
and operation of the Company within the 60-day notice period or any extensions
of time mutually agreed to by the parties, the parties agree to immediately
submit any such terms and conditions that the parties have failed to agree on to
arbitration pursuant to Section 15.7 except that such arbitration shall not be
binding on the parties save as expressly set out in this Article VII. The
factors set forth in Section 7.2(e)(i) and (ii) shall not in any manner be
disclosed to the arbitrators. The arbitrators shall determine such terms and
conditions taking into account:
(a) all of the factors listed in Section 7.2 but without any reference to
the factors set forth in Section 7.2(e)(i) and (ii), (b) other provisions of
this Agreement and (c) the conduct of the parties under this Agreement. The
arbitration proceeding shall be completed within 90 days following the
conclusion of good faith negotiations. After conclusion of the arbitration of
all such terms and conditions that the parties had failed to agree on, and where
OCLI is not satisfied with the arbitrators= decision OCLI shall have the option,
exercisable by notice, given within 30 days of the date of the arbitrators'
decision, to (i) terminate this Agreement on six months notice provided
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notice is given after January 31, 1999, (ii) agree to form the Company upon the
terms decided by the arbitrators if, and only if, JDS also, in its sole and
unfettered discretion, whether or not acting reasonably, agrees to form the
Company upon such terms or (iii) continue this Agreement without the formation
of the Company. In the event the parties continue this Agreement without the
formation of the Company, either of the parties may elect, on one subsequent
occasion only, to initiate the process to form the Company pursuant to this
Article VII any time after a date that is 24 months after the date of the
arbitrators= decision. In no event shall either party have any rights or
obligations under this Article VII upon the conclusion of the second arbitration
and this Article VII shall thereafter be null and void.
ARTICLE VIII
EXCLUSIVITY
8.1 Scope of Exclusive Rights. Unless otherwise agreed in writing by the
parties, neither OCLI nor JDS may make for or sell to third parties WDM Optical
Filters, Fiber Xxxxx gratings, Planar Waveguides or any other form of wavelength
discrimination device or technology for WDM Products or may provide WDM Products
assembly services for any technology for third parties.
ARTICLE IX
TERMINATION
9.1 Termination for Convenience by Either Party. On January 31, 2015 and
at the end of every five-year period thereafter, upon 3 years prior written
notice given within 6 months prior to such dates, either party may terminate
this Agreement for convenience.
9.2 Effect of Termination. Subject to Section 14.4, in the event that
either this Agreement or the Distributor Agreement, Exhibit B, is terminated
pursuant to any provision hereunder or for breach, both this Agreement,
including all licensed rights granted hereunder, and said Distributor Agreement
shall terminate and all intellectual property rights owned by each party shall
be retained by such party and all intellectual property rights jointly owned
shall continue to be jointly owned provided however that either party may
thereafter exploit such joint
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intellectual property rights without the consent or accounting to the other
party. In addition, in the event the Company has been formed, the parties shall
use their best efforts to effect an orderly dissolution and wind-up of the
Company by discharging all debts and obligations of the Company with the
remaining equity to be distributed to the parties in accordance with their
respective interests in Profits; provided that all assets of the Company are
dealt with as follows. All assets of the Company shall be transferred to the
parties as mutually agreed. No Company asset shall be conveyed, sold, leased or
otherwise disposed of to a third party unless both parties agree in writing to
such disposal in their respective sole discretion. Should the Company not have
sufficient monetary assets to discharge all debts and all obligations of the
Company, each of the parties shall share in the discharge of such debts and
obligations in accordance with their respective interests in Company.
ARTICLE X
MANAGEMENT COMMITTEE
10.1 Management Committee. OCLI and JDS shall each appoint two persons to
serve as a Management Committee. The Management Committee shall have the
authority, acting reasonably, to manage the design, development, manufacture and
technical product marketing support of the WDM Products Business pursuant to
this Agreement and until the formation of the Company. Meetings of the
Management Committee may be called by any member thereof upon one business day
notice to the other Management Committee members and attendance may be by
telephone, video conference or other means agreed to by such members. Three
members, or their designated representatives, must be present for a quorum and
no business shall be conducted by the Management Committee except at such
meetings where a quorum is present. The affirmative vote of three members is
required to authorize all actions of the Management Committee. In the event the
Management Committee reaches a deadlock, including consistent failure or refusal
of one or more party's members to attend meetings, the chief executive officers
then in office of JDS and OCLI shall jointly appoint one non-affiliated business
person to serve as the fifth member of the Management Committee to break such
deadlock. If the chief executive officers of OCLI and JDS are unable to agree on
who should serve as the fifth member of the Management
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Committee, each shall select one non-affiliated business person, and the two
non-affiliated business persons so selected shall select a third non-affiliated
business person who alone will then join the Management Committee as the fifth
member to break such deadlock.
10.2 Chairperson of the Management Committee. A member of the Management
Committee initially selected by OCLI shall serve as chairperson for a nine-month
term. Thereafter, JDS shall choose the chairperson to serve for a nine-month
term, and thereafter the parties shall continue to rotate in the selection of
the chairperson for succeeding nine-month terms. The duties of the chairperson
shall be to organize and preside at meetings of the Management Committee and to
perform such other duties as from time to time may be determined by the
Management Committee. The parties may adjust the term of the chairperson by
mutual agreement.
10.3 Delegation. The Management Committee may delegate duties to one or
more persons who need not be members of the Management Committee.
10.4 Business Plan. The Management Committee shall prepare the joint
venture's annual Business Plan which shall include each parties obligations and
responsibilities all in accordance with this Agreement. The Business Plan shall
be completed not later than the beginning of each Fiscal Year.
ARTICLE XI
RESEARCH AND DEVELOPMENT
11.1 Funding of R&D. The parties may propose any R&D projects that relate
to WDM Products Business to the Management Committee or the Company.
Notwithstanding the voting provisions contained in Section 10.1, if the Company
or the Management Committee, acting through members or representatives that are
unaffiliated with the offering party, elects to conduct the R&D project, the
Company, or OCLI or JDS as determined by the Management Committee, shall fund
the R&D project which funding shall constitute Costs and the results shall be
owned by the Company or equally by OCLI and JDS. Where the Company or said
members of the Management Committee decline to undertake the R&D project, either
party may conduct the R&D project provided that the Company or said members of
the Management Committee shall have the right for a period of 60 days after
declining to
17
conduct the R&D project to accept the R&D project in which case the total cost
of the R&D project shall be funded by the Company, or OCLI or JDS as determined
by the Management Committee, which funding shall constitute Costs. In the event
the Company or said members of the Management Committee elect not to conduct the
R&D project, or exercise the 60 day option described above, either party is free
to conduct the R&D project with the results being owned by such party with no
obligation to license or otherwise share the results with the Company or the
other party and any products based on the R&D project shall be deemed to fall
outside of the definition of WDM Products. In the event a party elects not to
present an R&D project to the Management Committee or the Company, and the
results of the R&D project has application in the WDM Products Business, at the
end of the R&D project such party will offer the Company a nonexclusive,
Non-assignable license limited to use the results of such R&D project solely for
the WDM Product Business, based on commercially reasonable terms including lump
sum and royalty terms, which amounts shall be included in Costs but not be
included in the licensing party's revenues for the purpose of determining such
party's Transaction Profits. The Company shall have a period of thirty (30) days
from the date of such offer to accept such license. In the event the Company
does not take a license within said time period, any products based on such R&D
project shall be deemed to fall outside of the definition of WDM Products and
the party owning such results shall have no obligation to license or otherwise
share the results with the Company or the other party.
ARTICLE XII
THIRD PARTY LICENSING
12.1 Where the parties agree that a third party license of intellectual
property rights is needed to carry out the activities hereunder, the costs of
such license shall be included in Costs for the purpose of sharing Profits under
Article VI.
ARTICLE XIII
ACQUISITIONS
13.1 Where either party makes an acquisition in which it has majority
ownership and the acquiring party has control to cause the acquisition to offer
an intellectual
18
property license relating to WDM Products Business to the Company, immediately
after the completion of the acquisition the Company will be offered a
nonexclusive, Non-assignable license limited to use for the WDM Product Business
based on commercially reasonable terms including lump sum and royalty terms. The
Company shall have a period of thirty (30) days from the date of such offer to
accept such license. Neither party is otherwise obligated to license or
otherwise share such intellectual property with the Company or the other party.
13.2 Notwithstanding the voting provision contained in Section 10.1, where
either OCLI or JDS makes an acquisition in which it has majority ownership (the
"Acquiring Party") and the acquisition's existing business includes WDM Products
Business, the Acquiring Party shall offer to the joint venture, immediately
after the completion of the acquisition, acting through the members of the
Management Committee or the governing body of the Company who are unaffiliated
with the Acquiring Party, the right to have the Acquiring Party=s share of
Transaction Profits of the acquisition's WDM Products Business included in the
calculation of Profit sharing between the parties pursuant to Article VI of this
Agreement. If the joint venture so elects within thirty (30) days from the date
of such offer to so participate, as consideration for the right to so share in
such Transaction Profits, the Acquiring Party shall be compensated by the
non-acquiring party (the "Other Party"), in cash or other consideration
acceptable to the Acquiring Party, an amount that shall be equal to the portion
of the acquisition costs, including expenses (including costs associated with
determining the portion of the acquired company's business allocable to the WDM
Products Business), that is attributed to the WDM Business of the acquired
company (reflecting the fact that the non-acquiring party will be acquiring a
Profit interest without any equity ownership, and taking into account the
remaining term of the Agreement under Section 9.2, and subject to additional
payments by the Other Party at the beginning of each renewal term of the
Agreement) times one-third where OCLI is the Other Party and two-thirds where
JDS is the Other Party. Alternatively, the Acquiring Party may at its sole
option agree with the Other Party to adjust the Profit sharing pursuant to
Article VI to replace a portion or all of the said cash amount. If the joint
venture does not so elect within the specified time period, the acquired
19
company's business shall be completely outside the scope of this Agreement and
not be included in the calculation of Profit. For greater certainty, where the
Acquiring Party is OCLI, the Other Party is JDS and vice-versa.
ARTICLE XIV
CONFIDENTIAL INFORMATION
14.1 "Confidential Information" shall mean any business, marketing,
technical, scientific, financial or other information, specifications, designs,
plans, drawings, software, prototypes or process techniques, of a party, which
at the time of disclosure, is designated as confidential (or like designation),
is disclosed in circumstances of confidence, or would be understood by the
parties, exercising reasonable business judgement, to be confidential, but
excludes any information which:
(a) is independently developed by or for the receiving party without
reference to or use of Confidential Information;
(b) is lawfully received free of restriction from another source having
the right to so furnish such confidential information;
(c) is or becomes lawfully in the public domain other than through a
breach of this Agreement;
(d) was known by the receiving party prior to disclosure, as evidenced by
its business records;
(e) disclosing party agrees in writing is free of such restrictions;
(f) is disclosed by the disclosing party to a third party without a duty
of confidentiality on such third party; or
(g) is required or compelled by law to be disclosed, provided that the
receiving party give all reasonable prior notice to the disclosing party to
allow it to seek protective or other court orders.
14.2 Except as otherwise allowed under this Agreement, Receiving party
shall keep Confidential Information of the
20
disclosing party in confidence; disclose it only to individuals in the receiving
party with a need to know and who are under confidentiality restrictions; and
use or reproduce it only to the extent necessary for the activities contemplated
hereunder. Each party shall protect Confidential Information of disclosing party
with at least the same degree of care as it normally exercises to protect its
own Confidential Information of a similar nature, but no less than a reasonable
degree of care.
14.3 Receiving party agrees that any violation or threat of violation of
this section will result in irreparable harm to disclosing party for which
damages would be an inadequate remedy and, therefore, in addition to its rights
and remedies otherwise available at law, including without limitation the
recovery of damages and expenses, including attorney=s fees for breach of this
Agreement, disclosing party shall be entitled to unilaterally seek equitable
relief, including both temporary and permanent injunctions, to prevent any
unauthorized use or disclosure, and to such other and further equitable relief
as the court may deem proper under the circumstances.
14.4 Notwithstanding anything contained herein to the contrary, upon
termination of the Agreement pursuant only to Subsection 9.2, each party
covenants and agrees that it will not bring, commence or institute, or aid or
abet any suit, action at law, proceeding in equity, arbitration or other
proceeding or action based on, or related to, any claim or right under Article
XIV, Confidential Information, to the extent such claim or right is based upon
(i) in the case of claims or rights asserted by JDS against OCLI, the use by
OCLI of WDM Product Packaging Technology in the field of use related to WDM
Products A, B or C containing one or more WDM Optical Filter A, B or C elements
performing a necessary wavelength discrimination function or (ii) in the case of
claims or rights asserted by OCLI against JDS, the use by JDS of WDM Optical
Filter Technology in the field of use related to WDM Optical Filters A, B or C.
For the purpose of this Section 14.4, (A) "WDM Product Packaging Technology"
shall mean all intellectual property rights relating to the design, manufacture,
assembly, testing and marketing of WDM Products A, B or C which contain WDM
Optical Filters A, B or C as at least one wavelength discrimination element,
including, but not limited to, patents, trademarks and tradenames (but limited
to trademarks and tradenames which
21
were specifically created to be used pursuant to this Agreement and excluding
any trademarks and tradenames which contain as an element a any trademark or
tradename of either party), proprietary technical know-how and business
information, owned by JDS but limited to that used in the WDM Product A, B or C
Business, and (B) "WDM Optical Filters Technology" shall mean all intellectual
property rights relating to the design, manufacture and testing of WDM Optical
Filters A, B or C used as wavelength discrimination elements in WDM Products A,
B or C, including, but not limited to, patents, trademarks and tradenames (but
limited to trademarks and tradenames which were specifically created to be used
pursuant to this Agreement and excluding any trademarks and tradenames which
contain as an element a any trademark or tradename of either party), proprietary
technical know-how and business information, owned by OCLI but limited to that
used in the WDM Products A, B or C Business. In no event shall either party be
under any obligation whatsoever to provide any technical information or services
to the other party related to the use of WDM Optical Filters Technology or WDM
Products Packaging Technology. In no event shall this Section 14.4 provide a
right to either party to disclose or grant any right in WDM Optical Filter
Technology or WDM Product Packaging Technology to any third party. In addition
to the forgoing, where WDM Optical Filters D or WDM Optical Products D have been
licensed pursuant to Section 3.6, then, only in the case where termination was
made pursuant to Section 9.1, such licenses shall continue on nonexclusive,
Non-assignable, commercially reasonable terms that would be applicable if
licensed in an arm's length transaction at the date of such termination.
ARTICLE XV
MISCELLANEOUS
15.1 Outside the scope of this agreement, OCLI agrees to use its best
efforts, subject to available capacity and prior commitments, to supply optical
filters for use in telecommunication optical fiber products to JDS as requested
on normal Best Customer commercial terms. For the purposes
22
of this Section "Best Customer" shall mean that the prices charged and delivery
times for products purchased from OCLI by JDS are, and will at all times be, no
greater than the lowest prices charged by OCLI to any third party for
substantially the same quantity of all such optical filters, on the same or
similar delivery times as those provided to any third party for such optical
filters.
15.2 Order Backlog. All orders from WDM Products D received on or after
April 15, 1999 shall be included in the calculation of Profits under Article VI.
All orders in JDS's backlog for WDM Products D as of April 14, 1999 and shipped
on or after October 15, 1999 shall be included in the calculation of Profits.
15.3 Constraints on Employee Transfers. For a period of two years
following the termination of employment of an employee of either party, the
other party shall be prohibited from employing such employee without prior
written consent of the other party; provided, however, that this restriction
shall terminate two years after the termination of this Agreement.
15.4 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware without regard to the conflict
of law principles or without regard to the United Nations Convention on the
Contracts for the International Sale of Goods.
15.5 Disputes. Except for breach of Article XIV Confidential Information,
and subject to Sections 7.6 and 10.1, except where the parties fail to take any
required actions to resolve their differences or there is no resolution under
Section 10.1, if a dispute, breach or failure to agree shall occur between the
parties concerning this Agreement, both parties may require the other party
promptly to submit the reasons for its position, in writing to the requesting
party, and then to enter into good faith negotiations, including the
involvement, if appropriate, of senior management of each of the Parties to
attempt to resolve the disagreement. If such dispute, breach or failure to agree
cannot be settled by good faith negotiation between the parties within 30 days,
the matter shall be finally settled by mandatory, binding arbitration, in
accordance with the rules and procedures of the American Arbitration Association
applicable to commercial
23
transactions then in force, provided that arbitration proceedings may not be
instituted until sixty (60) days after delivery of any such notice of
arbitration and where the other party has not remedied the matter within said
time period. The arbitration panel shall consist of three (3) arbitrators one of
which shall be appointed by each party and the third selected by the two so
appointed. Costs of arbitration shall be borne by the parties in accordance with
the decision of the arbitrators. Judgment upon the award rendered may be entered
in any court having competent jurisdiction thereof, or application may be made
to such court for a judicial acceptance of the award and an order of enforcement
as the case may be. The arbitration proceedings shall be conducted at a
reasonable location selected by the parties or by the arbitrators. The factors
set forth in Section 7.2(e)(i) shall not in any manner be disclosed to the
arbitrators. Notwithstanding the foregoing, the parties may apply to any court
of competent jurisdiction to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision.
15.6 Attorneys' Fees. In case suit is brought or arbitration proceedings
commenced by either party because of the breach of any term, covenant or
condition contained in this Agreement, the prevailing party shall be entitled to
recover against the other party the full amount of its costs, including expert
witness fees and reasonable attorneys' fees. If neither party prevails entirely,
such fees and expenses shall be prorated based upon the relative success of each
party to the relief being sought.
15.7 Notices. All notices, offers, acceptances, approvals and other
communications under this Agreement shall be in writing and shall be given to
such party, addressed to it, at its address or telecopy number set forth below
or such other address or telecopy number as such party may in the future specify
for such purpose by notice to the other party. Each such notice, information,
request or communication shall be effective upon actual receipt by the party at
the address specified below:
24
If to OCLI:
Optical Coating Laboratory, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: General Counsel
(Xxxxxx X. Xxxx, Esq.)
With a copy to (which is not required to constitute notice to OCLI):
Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
If to JDS or Distributor:
JDS FITEL, Inc.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx, XX X0X 0X0 Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: President (Xxxxx Xxxxxx, Ph.D.)
With a copy to (which is not required to constitute notice to JDS):
JDS FITEL, Inc.
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxx, XX X0X 0X0 Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention: General Counsel (Xxxxxx Xxxxxx, Esq.)
Any party may from time to time specify as its address or telecopy number for
purposes of this Agreement any other address or telecopy number upon the given
of 10 days notice thereof to the other party.
15.8 Public Announcements. The parties shall not issue a press release or
other publicly available document containing any
25
information regarding the other party or the operating or financial results of
the joint venture or the Company without the prior written approval of the other
party unless such information has previously been lawfully and publicly
disclosed in writing or is lawfully and publicly available in writing.
Furthermore, such press releases are to be limited to what is publicly
available. At least 24 hours prior to the issuance of such information, the
issuing party shall provide the other party with notice of its intention to
disclose such information as well as the draft wording of the information to be
released. Where a party refuses to approve the wording of the information to be
released, the party shall provide the reasons for such refusal and both parties
agree to use their best efforts to negotiate the appropriate wording of the
information to be released. However, nothing contained herein shall prevent a
party from disclosing any information that is required to be disclosed pursuant
to Securities Law and the rules or regulations promulgated thereunder.
Accordingly, each party therefore consents to the filing by the other party with
the SEC of a complete version of this Agreement. Where a party issues a press
release containing any information regarding the other party, this Agreement,
the transactions contemplated herein or the operating or financial results of
the Company, a copy of such release shall be provided to the other party
forthwith.
15.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original. A photocopy or
facsimile copy of the signatures of the parties to this Agreement shall be
considered authenticated signatures admissible into evidence where the
authenticity of the signatures are placed into question.
15.10 Interpretation. The table of contents and the headings to the
various subdivisions of this Agreement are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof. All pronouns
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons referred to may require. The language
in all parts of this Agreement will in all cases be construed as a whole and in
accordance with its fair meaning and not restricted for or against either party.
15.11 Successors and Assigns. This Agreement and any rights or licenses
granted herein are personal to each party and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns,
26
provided, however, neither party shall assign any of its rights, privileges or
obligations hereunder without the prior written consent of the other party
provided, however, that JDS may assign this Agreement to JDS Uniphase
Corporation. Should either party attempt an assignment in derogation of the
foregoing, the other party shall have the right to immediately terminate this
Agreement by written notice to the other party.
15.12 Waiver. The failure of either party to give notice to the other
party of the breach or non-fulfillment of any term, clause, provision or
condition of this Agreement shall not constitute a waiver thereof, nor shall the
waiver of any breach or non-fulfillment of any term, clause, provision or
condition of this Agreement constitute a waiver of any other breach or
non-fulfillment of that or any other term, clause, provision or condition of
this Agreement.
15.13 Purchase By Competitor. In the event any third party which is a
direct competitor of the other party acquires a 20% or greater equity
participation in a party hereto, without first having obtained the written
consent of the other party, such other party may without any delay, by written
notice, terminate this Agreement by written notice to the other party.
15.14 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and cancels all previous negotiations, agreements, commitments, and
writings in respect to the subject matter hereof, and neither party shall be
bound by any term, clause, provision or condition save as expressly provided in
this Agreement or as duly set forth on or subsequent to the date of execution
hereof in writing, signed by duly authorized officers of the parties.
15.15 Agency. Subject to Article VII, each party acknowledges that it does
not intend to create or imply a legal partnership with the other parties by
virtue of this Agreement and the parties agree that nothing in this Agreement
shall be construed as establishing or implying any legal partnership between the
parties hereto, and nothing in this Agreement shall be deemed to constitute
either of the parties hereto as the Agent of the other party or authorize either
party to incur any expenses on behalf of the other party or to commit the other
party in any way whatsoever, without obtaining the other party's prior written
consent. The parties further agree that when any party hereto deals with a third
party as a result of this
27
Agreement that such third party will be notified that every party hereto is
acting on its own behalf.
15.16 Survival. The provisions of Sections 9.3, 14, 15.3, 15.4, 15.5,
15.6, 15.7, 15.10, 15.11, 15.12, 15.16, 15.17 and 15.18, and for Exhibit B,
Article V and Article IX, shall survive termination of this Agreement. The
provisions of Section 6.5 shall survive for a period of 18 months following
termination of this Agreement. Notwithstanding any term to the contrary: (a)
where at the date of termination of this Agreement, (i) the Profit is negative
or (ii) Costs exist but there is no Profit; or (b) where after the date of
termination of this Agreement (i) if any obligations, including but not limited
to customs and duties, arise with respect to any Cost that would have been
included in Costs if the obligation was identified during the period that the
Agreement was in effect, (ii) if any liability arose during the period that the
Agreement was in effect, including but not limited to any liability under
Section 15.18 or Exhibit B Article V, but which was not identitifed or
determined until after the date of termination of this Agreement, or (iii) bona
fides bad debts arise for which revenues have been used in the calculation of
Profits; then in all cases the parties agree to share the Costs such that OCLI
shall be responsible for paying one-third and JDS and Distributor combined shall
be responsible for paying two-thirds of all such Costs, regardless of which
party actually paid such Costs. The parties shall promptly make payment to the
other party as appropriate to ensure that each party has fulfilled its
obligation under this Section 15.19 with regard to such Costs.
15.17 Further Assurances and Approvals. The parties agree to make, do,
execute, endorse, acknowledge and deliver or cause and procure to be made, done,
executed, endorsed, acknowledged, filed, registered and delivered any and all
further acts and assurances including any conveyance, deed, transfer,
assignment, share certificate or other instrument in writing as may be necessary
to give effect to the terms and conditions provided for and contemplated by this
Agreement. The parties further agree that where any term, warranty,
representation, option or condition provided for or contemplated by this
Agreement requires prior regulatory or shareholder approval to give effect to
such term, warranty, representation, option or condition, the parties shall not
enforce such term, warranty, representation, option or condition unless and
until such approval is obtained.
28
15.18 Intellectual Property Indemnity Liability. Where any threaten or
actual proceeding or claim against any party alleging that any WDM Product or
WDM Optical Filter furnished hereunder during the term of this Agreement
infringes any third party intellectual property rights, including without
limitation any patents, trademarks and copyright, the parties agree to jointly
(i) defend or settle any such matter, (ii) equally share any costs, including
without limitation all legal or expert fees and disbursements which were
incurred as a result of such defense or settlement, and (iii) equally share in
the payment of all damages and costs assessed by final judgment against any
party and attributable to such matter.
15.19 Approvals. The signatures provided below shall not be deemed
effective unless and until all required or counseled government or regulatory
filings are made and all approvals or consents are obtained.
15.20 Representations and Warranties. Each party represents and warrants
that:
(a) it has full right and title to all of the Confidential Information it
discloses to the other party under this Agreement;
(b) to the best of its knowledge, there are no material liens,
encumbrances of any kind against its intellectual property which relates to the
WDM Product Business and that it is not subject to any outstanding agreements,
assignments or encumbrances that are inconsistent with the provisions of this
Agreement;
(c) to the best of its knowledge, there are no material actual or
threatened suits, actions at law, proceedings in equity, arbitrations or other
proceedings or actions against the party; and
(d) the execution, delivery and performanace of this Agreement by each
party are within each party=s corporate powers.
15.21 Force Majuere. Neither party be responsible or liable for any delay
or failure to deliver goods or perform services under this Agreement due to any
unforeseen circumstances or causes beyond that party's control, including but
not limited to, acts of God, fire, flood, explosion, earthquake, war,
insurrection, embargo, acts of civil or military authorities, delay in delivery
by suppliers, accident, strike or other labour
29
dispute, inability to secure labour, material, facilities, energy or
transportation. In the event of a force majeure condition, the time for delivery
or other performance will be extended for a period of time equal to the duration
of such force majeure condition.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
OPTICAL COATING LABORATORY, INC.
By
------------------------------
Name
----------------------------
Its
-----------------------------
JDS FITEL Inc.
By
------------------------------
Name
----------------------------
Its
-----------------------------
30
