EXHIBIT 10.11
PURCHASE AGREEMENT
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This PURCHASE AGREEMENT (the "Agreement") is made as of the 15th day of
November, 2000, by and between CORVIS Corporation ("CORVIS"), a Delaware
corporation, and WaveSplitter Technologies, Inc. ("VENDOR"), a California
corporation.
RECITAL
CORVIS desires to purchase from VENDOR and VENDOR desires to supply to
CORVIS certain components.
NOW, THEREFORE, in consideration of the representations, warranties,
promises, mutual covenants and agreements of the parties contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, CORVIS and VENDOR agree as follows:
ARTICLE 1 - DEFINITIONS
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Capitalized terms shall have the meanings set forth in Appendix 1 to the
Agreement.
ARTICLE 2 - PRODUCTS
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2.1. Products. VENDOR shall process and manufacture the products listed on
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Attachment 1 hereto (the "Products") for CORVIS in accordance with such
Product's Manufacturing Standards and shall deliver to CORVIS such Products in
compliance with the Product Quality Specifications.
2.2. Annual Minimum Purchase Commitments. Notwithstanding any Rolling
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Forecast, CORVIS will: (i) for each of the two consecutive calendar halves
beginning January 1, 2001, purchase for delivery in that respective half a
quantity of VENDOR's Products whose aggregate purchase price is at least * U.S.
Dollars; (ii) for each of the two consecutive calendar halves beginning January
1, 2002, purchase for delivery in that respective half a quantity of VENDOR's
Products whose aggregate purchase price is at least * U.S. Dollars,
respectively; and, (iii) for each of the two consecutive calendar halves
beginning January 1, 2003, purchase for delivery in that respective half a
quantity of VENDOR's Products whose aggregate purchase price is at least * U.S.
Dollars; provided, that, if (a) VENDOR fails to deliver any Products within *
after the applicable Delivery Window (as specified in Section 4.2), and (b)
CORVIS orders substitute products from a third party to replace the Products
that Vendor so failed to deliver, then CORVIS shall receive a credit toward
CORVIS' obligations in this Section 2.2 in an amount equal to the purchase price
of the VENDOR Products not delivered within * after such Delivery Window. For
purposes of this Section 2.2., Products delivered to Corvis pursuant to Purchase
Orders outstanding as of the effective date of this Agreement will be deemed to
have been purchased when delivered.
2.3. Failure to Meet Annual Minimum Purchase Commitment.
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* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as ******. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(1) (a) If, in 2002, CORVIS fails to purchase for delivery in 2002 a
quantity of VENDOR's Products whose aggregate purchase price is equal
to or exceeds * U.S. Dollars, then VENDOR may immediately invoice
CORVIS for an amount equal to * of the difference between * U.S.
Dollars and the aggregate purchase price of all Products actually
purchased for delivery in 2002 by CORVIS (such difference being the
"Annual Minimum Purchase Commitment Shortfall"). CORVIS will pay such
invoice within thirty (30) days after receipt of invoice.
(b) (If CORVIS fails, in any calendar quarter of 2002, to
purchase for delivery in that respective quarter a quantity of
VENDOR's Products whose aggregate purchase price is at least * U.S.
Dollars, then the remainder of this Section 2.3.(1)(b) will be
invalid, and of no force or effect.) If CORVIS submits Purchase Orders
for at least the amount of the Annual Minimum Purchase Commitment
Shortfall within such 30 day payment period referenced in Section
2.3.(1)(a), above, and such Purchase Orders requests delivery of
VENDOR Products within three (3) calendar months, CORVIS will receive,
for application against such Purchase Orders, a credit for the * of
the payment made for the Annual Minimum Purchase Commitment Shortfall.
In the event that the amount paid by CORVIS with respect to the Annual
Minimum Purchase Commitment Shortfall is not fully utilized as credit
against Purchase Orders issued within such thirty (30) day period,
CORVIS will receive a credit equal to * of the remaining amount, which
credit may be used to pay for purchases of Products for delivery
within four (4) calendar months after the end of the calendar year in
which the shortfall occurred. Any credit given pursuant to this
section shall be applied first to satisfy CORVIS' obligations for the
year in which the Annual Minimum Purchase Commitment Shortfall
existed, to the extent of such shortfall. Any excess amount shall
apply against Corvis' obligations in the period in which such Purchase
Order was issued.
(2) (a) If, in 2003, CORVIS fails to purchase for delivery in 2003 a
quantity of VENDOR's Products whose aggregate purchase price is equal
to or exceeds * U.S. Dollars, then VENDOR may immediately invoice
CORVIS for an amount equal to * of the difference between * U.S.
Dollars and the aggregate purchase price of all Products actually
purchased for delivery in 2003 by CORVIS (such difference being the
"Annual Minimum Purchase Commitment Shortfall"). CORVIS will pay such
invoice within thirty (30) days after receipt of invoice.
(b) (If CORVIS fails, in any calendar quarter of 2003, to purchase for
delivery in that respective quarter a quantity of VENDOR's Products
whose aggregate purchase price is at least * U.S. Dollars, then the
remainder of this Section 2.3.(2)(b) will be invalid, and of no force
or effect.) If CORVIS submits Purchase Orders for at least the amount
of the Annual Minimum Purchase Commitment Shortfall within such 30 day
payment period referenced in Section 2.3.(2)(a), above, and such
Purchase Orders requests delivery of VENDOR Products within three (3)
calendar months, CORVIS
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* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
will receive, for application against such Purchase Orders, a credit
for * of the payment made for the Annual Minimum Purchase Commitment
Shortfall. In the event that the amount paid by CORVIS with respect to
the Annual Minimum Purchase Commitment Shortfall is not fully utilized
as credit against Purchase Orders issued within such thirty (30) day
period, CORVIS will receive a credit equal to * of the remaining
amount, which credit may be used to pay for purchases of Products for
delivery within four (4) calendar months after the end of the calendar
year in which the shortfall occurred. Any credit given pursuant to
this section shall be applied first to satisfy CORVIS' obligations for
the year in which the Annual Minimum Purchase Commitment Shortfall
existed, to the extent of such shortfall. Any excess amount shall
apply against Corvis' obligations in the period in which such Purchase
Order was issued.
2.4. Quantity. By the seventh business day of each month (the month
hereafter being "M"), CORVIS shall provide to VENDOR a twelve-month rolling
forecast (the "Rolling Forecast") of deliveries for the twelve-month period
commencing at the beginning of the next month. The first month of each Rolling
Forecast (hereafter "M+1") shall include the quantity of each product, by
product code, to be delivered during M+1 and the target delivery date for each
shipment to be made during M+1. The remaining months of each Rolling Forecast
(M+2 through M+12) shall contain the quantity of each product by product code
which CORVIS anticipates will be delivered during the specified month. The first
month of the Rolling Forecast shall represent a binding commitment to order and
CORVIS shall submit a Purchase Order for * no later than the seventh business
day of M for delivery in the following month (M +1). The forecast issued in M
for the second month of each Rolling Forecast (M+2) shall be partially binding
in that in the next subsequent Rolling Forecast (in which M+1 has become M and
M+2 has become M+1), the quantity of each product, by product code, to be
delivered in M+1 and the corresponding Purchase Order shall be not less than *
of the quantity forecast for such month in the immediately preceding Rolling
Forecast. The forecast issued in M for the third month of each Rolling Forecast
(M+3) shall be partially binding in that in the next subsequent Rolling Forecast
(in which M+1 has become M, M+2 has become M+1 and M+3 has become M+2), the
quantity of each product, by product code, to be delivered in M+2 and the
corresponding Purchase Order shall be not less than * of the quantity forecast
for such month in the immediately preceding Rolling Forecast for M+3.
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* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
2.5. Capacity. VENDOR shall accept Purchase Orders for delivery in M+1 of
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Products designated in a Rolling Forecast delivered by the seventh business day
of M, provided that VENDOR shall not be obligated to deliver more than * of
the amount of that product code that was scheduled to be delivered to CORVIS in
the immediately preceding Rolling Forecast. VENDOR shall make commercially
reasonable efforts to maintain sufficient capacity to process, manufacture, and
deliver the Products VENDOR is obligated to deliver to CORVIS under this
Agreement, within the delivery times set out in Section 4.2. For increases of
units of a Product in any given month in the Rolling Forecast that exceed *
of the units of that Product in that month in the then-preceding Rolling
Forecast, the parties shall meet and discuss the delivery obligations of VENDOR;
VENDOR will have no obligation to accept Orders for that excess unless the
parties mutually agree. The parties will also agree to the first Rolling
Forecast delivered under this Agreement.
2.6. Inventory. VENDOR shall, not later than * from the Effective
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Date, maintain an inventory of each Product equal to * of the amount it is
required to supply pursuant to Section 2.5 for month M+1 of the then current
Rolling Forecast. CORVIS will purchase such inventory at the then-current unit
prices upon termination of this Agreement or Product discontinuance, subject in
each case to the binding commitments of CORVIS set forth in Section 2.4.
2.7. Product Report. VENDOR will provide CORVIS with a periodic report of
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the manufacturing capacity utilization, inventory quantities and refreshment
rates and current lead times for each Product.
2.8. Pricing.
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(1) The unit prices for each Product shall be that set forth in Attachment
1. The unit prices set forth in Attachment 1 shall remain in effect through
2001, unless expressly agreed upon by CORVIS and VENDOR as provided in this
Section.
(2) Pricing for Orders placed in 2002 and 2003 will be negotiated by the
parties in good faith in the latter part of 2001 and 2002, respectively,
and will be competitive. (For purposes of this Section 2.8(2), pricing will
be deemed to be competitive if it is * If, as a result of VENDOR's pricing
not being competitive, the parties do not agree in good faith to 2002 or
2003 pricing, then: (x) CORVIS will have no obligations to issue Orders,
and VENDOR will have no obligations to accept Orders, in that particular
year; and, (y) CORVIS will promptly purchase the inventory mentioned in
Section 2.6., above, at the unit prices last in effect.
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* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(3) * For pricing that is variable based upon the units of a Product
purchased by CORVIS, pricing shall be based upon quantities CORVIS has in
its initial Rolling Forecast for the year, and, if the actual amount
purchased by CORVIS is greater or less than the initial Rolling Forecast
amount upon which the pricing was calculated, then, at these quarterly
reviews, the parties will negotiate in good faith to adjust the unit
pricing going forward for that Product accordingly. If there is a
discrepancy between the unit price of any Product listed in Attachment 1
and another correspondence, including purchase orders and order
confirmations, the unit price set forth in Attachment 1 shall control,
unless amended via an express writing executed by CORVIS and VENDOR
2.9. All prices are exclusive of any applicable sales, use or other
similar taxes, transportation charges and cost of insurance and other similar
charges which may be assessed against an order. Any such taxes or charges shall
be invoiced to and paid by CORVIS. In lieu of paying sales, use or other similar
taxes, CORVIS may provide VENDOR with a valid tax exemption certificate or other
document acceptable to the appropriate taxing authorities.
2.10. Product Discontinuance. VENDOR shall not discontinue any Product
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unless it gives CORVIS at least * notice in writing. In such event, VENDOR shall
provide CORVIS with a suggested product replacement at the same time for the
remainder of the term of this Agreement. CORVIS shall have the right to
substitute the Replacement Product for the Product under this Agreement, at a
price to be negotiated by the parties, but in no event more than the price paid
for the original Product. If CORVIS elects not to use the suggested replacement
product, VENDOR shall offer CORVIS a * period beginning the day of the notice of
discontinuance within which CORVIS can place orders for the discontinued
Product. CORVIS may give a last order ("One Time Buy Order") immediately prior
to the end of the * period. The One Time Buy Order is non-cancelable, non-
reschedulable and non-returnable, except as otherwise provided in this
Agreement. Products ordered with the One Time Buy Order will be delivered to
CORVIS as agreed to by the parties, but no later than * after the notice of
discontinuance.
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* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE III - SPECIFICATIONS AND STANDARDS
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3.1 Changes to Specifications.
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(a) Manufacturing Standards. Ninety (90) days prior to any proposed
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implementation of changes to the Manufacturing Standards for any Product
that affect either the form, fit or function of a Product, VENDOR shall
provide CORVIS with notice of any such proposed modifications for CORVIS'
review and VENDOR shall include therewith an assessment of the impact of
such modifications on the Product Quality Specifications and pricing of
each Product. CORVIS shall respond to any such proposed change within
thirty (30) days of its proposed date of implementation. To the extent
that such proposed modifications are unacceptable to CORVIS, they shall not
be implemented except as provided in Section 2.10. CORVIS shall not
unreasonably withhold acceptance of any such proposed change. In the event
CORVIS declines to accept any such change, CORVIS shall immediately inform
VENDOR in writing together with the specific reasons for declining to
accept the change.
(b) Product Quality Specifications. CORVIS may provide VENDOR with written
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notice of modifications to the Manufacturing Standards or the Product
Quality Specifications of any individual Product. VENDOR shall use
commercially reasonable efforts to implement such modifications (subject to
mutual agreement with CORVIS regarding terms, prices and time frames).
CORVIS will pay to VENDOR the unit price for Products, and the fair market
value of all unique material, deemed obsolete by any such changes, subject
to the binding commitments of CORVIS set forth in Section 2.4.
3.2 Record keeping. VENDOR and CORVIS shall mutually agree upon the
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records to be maintained by VENDOR regarding processing activities, monitoring
of process steps, and Product quality tests. Thereafter for a period of at
least two years, VENDOR shall accurately maintain such records. CORVIS shall
have the right upon request to inspect such records, and to obtain a copy of
such records, provided that the information contained therein shall constitute
VENDOR's Confidential Information..
3.3 Inspection. Authorized representatives of CORVIS shall have the
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right, upon reasonable notice to VENDOR and with reasonable frequency, during
normal business hours, to enter VENDOR's facility and to inspect all areas used
for the storage and handling of ingredients, and in the processing,
manufacturing, and storage of the Products, to monitor and assure compliance
with the Manufacturing Standards and Product Quality Specifications. CORVIS
shall also be permitted to review quality reports and statistical process
controls related to the manufacturing of Products.
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ARTICLE IV - ORDER, ACCEPTANCE, AND PAYMENT PROCEDURES
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4.1 CORVIS Orders. CORVIS shall submit Purchase Orders to VENDOR in a
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timely manner for the quantities of each Product code it is required to purchase
pursuant to Section 2.4 . VENDOR shall acknowledge receipt of the Purchase
Order within one (1) business day and further agrees to provide an Order
Confirmation confirming the shipment dates within three (3) business days after
receipt of a Purchase Order for orders it is obligated to accept pursuant to
Section 2.5. Upon acceptance, a Purchase Order shall constitute a binding
obligation of the parties subject to the terms of this Agreement. The terms of
this Purchase Agreement shall control over any inconsistent terms of any
Purchase Order or Order Confirmation issued after the date of this Agreement.
Nothing herein obligates VENDOR to accept any terms of a Purchase Order
delivered by CORVIS or obligates CORVIS to accept the terms of an Order
Confirmation delivered by VENDOR
4.2 Delivery Times. VENDOR shall use commercially reasonable efforts to
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deliver the Products within the delivery time frames specified in Purchase
Orders issued pursuant to Article 2 of this Purchase Agreement. VENDOR shall
deliver 100% of all products ordered under Article 2 within the Delivery Window
*. VENDOR agrees to participate in a vendor evaluation program with respect to
deliveries under this Agreement. VENDOR shall use commercially reasonable
efforts to comply with any reasonable request by CORVIS for acceleration of
delivery, subject to product inventory and lead time requirements. CORVIS shall
also have the right to delay delivery of ordered products once per Purchase
Order by a maximum of * by providing VENDOR not less than * written notice
before the target delivery date, provided, that, upon such notice, CORVIS can
delay the delivery of up to * one time by a maximum of *. Any Product for which
CORVIS has requested a delay shall be deemed timely delivered within the
Delivery Window. Should VENDOR fail (i) in any rolling consecutive * period to
deliver the required quantity of any Product and (ii) in any * to make all
scheduled deliveries within the Delivery Window, in each case in accordance with
the obligations contained in Article 2 at least * of the time then CORVIS will
have no further purchase obligations for that Product for *; provided, that such
purchase obligations will be eliminated only to the extent that CORVIS actually
orders substitute products from a third party to replace the Products that
Vendor so failed to timely deliver. For purposes of this section, VENDOR shall
not be able to cure any quantity shortfall in an earlier delivery by delivering
a greater quantity in any subsequent delivery.
4.3 Cancellations. CORVIS shall have the right to cancel any Purchase
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Order in whole or in part prior to shipment, subject to its binding purchase
commitments set forth in Section 2.4. VENDOR must cease production and delivery
upon notification of cancellation.
4.4 Point of Delivery. The Products sold to CORVIS under this Agreement
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shall be delivered by VENDOR , FOB origin to CORVIS at its designated facility
in Columbia, MD (the "Point of Delivery"), unless otherwise indicated on the
Purchase Order.
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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4.5 Packaging. Products shall be packaged in accordance with industry
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standards and any applicable requirements of the carrier used to deliver such
Products. Each shipment will be labeled with the appropriate Purchase Order
number and each Product shall be labeled with relevant part numbers per CORVIS'
Product Quality Specifications.
4.6 Partial Deliveries. Should VENDOR be unable to deliver Products
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within a delivery schedule established by a given Purchase Order, it shall
deliver partial shipments only with CORVIS' consent
4.7 Inspection, Acceptance and Rejection.
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(a) Inspection. All Products shall be inspected by CORVIS following
receipt at the Point of Delivery.
(b) Rejection and Acceptance. CORVIS shall have the right to reject any
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Product that was not manufactured in compliance with the Manufacturing
Standards or that does not comply with the Product Quality Specifications.
CORVIS shall inform the VENDOR in writing within thirty (30) days after
receipt at the Point of Delivery of its rejection of any Product together
with the reason(s) for such rejection. If CORVIS determines that a
shipment of a given Product received from VENDOR does not conform, as
required by a mutually-agreed Acceptable Quality Level under MIL-STD-105E,
a copy of which is attached hereto as Attachment 3, to the Manufacturing
Standards or the Product Quality Standards, CORVIS shall have the right to
reject all, some or none of the shipment of such Product containing such
defective unit or units. VENDOR shall, at the request of CORVIS, as
promptly as possible replace the Products thereof rejected by CORVIS.
VENDOR shall use commercially reasonable efforts to issue material return
authorizations in an expeditious manner.
(c) Disposition of Rejected Products. If CORVIS rejects any Product in
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accordance with the provisions of Section 4.7 (b), CORVIS shall have the
right to either:
(1) return the rejected Product to VENDOR for, at VENDOR's option,
credit, refund, or replacement; or
(2) accept the material as a substandard grade product with an
appropriate reduction in price.
If CORVIS requests replacement of a rejected Product, VENDOR shall promptly
ship the replacement Product.
(d) Responsibility for Rejected and Returned Products. If CORVIS rejects a
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Product:
(1) VENDOR shall, upon notice from CORVIS, make all necessary
arrangements for the transportation and return of the rejected Product;
(2) VENDOR shall be solely responsible for all costs of transportation
and other actions necessary to return the rejected material;
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(3) Title to the rejected Product shall be deemed to have been always
retained by the VENDOR, and never to have passed to CORVIS;
(4) VENDOR shall retain all risks of loss, contamination, and liability
with respect to shipment and disposition of such rejected Product; and
(5) VENDOR shall be solely responsible for the proper handling,
transportation, storage, treatment and disposal of the rejected
material.
(e) Title; Risk of Loss. Except as provided in Section (d)(3) above,
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title to Products shall pass to CORVIS upon shipment of such Products to
CORVIS. VENDOR assumes all risks of loss or contamination and liabilities
arising from the storage, handling and shipment of products until such time
as such Products are delivered to CORVIS at the Point of Delivery.
4.8 Payment. Payment for Products by CORVIS (including any sales, use
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or other similar taxes, transportation charges and cost of insurance and other
similar charges to be paid by CORVIS) shall be made * following the
receipt of a valid invoice (provided, however, that CORVIS shall not be
obligated to pay for any Products rejected in accordance with the provisions of
Section 4.7 (b)). *
ARTICLE V -- WARRANTY
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5.1 Product Warranty. For a period of * commencing upon CORVIS'
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receipt of any given Product under this Agreement (the "Warranty Period"),
VENDOR warrants that all Products sold hereunder or pursuant hereto, will be
free of any claim of any nature by any third person and that VENDOR will convey
clear title thereto to CORVIS as provided hereunder. VENDOR warrants that
during the Warranty Period each Product delivered pursuant to this Agreement was
manufactured in accordance with the Manufacturing Standards, conforms to the
Product Quality Specifications and is of good material and workmanship and is
free from defects in material and workmanship. This warranty is subject to
proper maintenance and operation of the particular Product. Any attempt by
VENDOR to limit, disclaim, or restrict any such warranties or any remedies of
CORVIS, by acknowledgment or otherwise, in accepting or performing any Purchase
Order, shall be null, void, and ineffective without CORVIS' written consent.
The foregoing warranties are exclusive and in lieu of all other warranties,
express or implied. WITHOUT LIMITING THE FOREGOING SENTENCE, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR PARTICULAR PURPOSE SHALL NOT
APPLY.
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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5.2 Warranty Remedy. If any Product is found to be in violation of the
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warranty contained in Section 5.1, CORVIS may, in addition to any other rights
which it may have under warranties provided or required by law or contained in
this Agreement, at its option and at VENDOR's sole cost and expense, return any
nonconforming or defective Product to VENDOR for repair, refund or replacement
(at VENDOR's option). Payment by CORVIS of any invoice shall not constitute
acceptance of the Products covered by such invoice, and acceptance by CORVIS
shall not relieve VENDOR of its warranty or other obligations under this
Agreement.
ARTICLE VI -- INTELLECTUAL PROPERTY
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6.1 Warranty and Infringement Indemnity. VENDOR hereby warrants that the
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Products do not infringe any third party intellectual property and VENDOR is
entitled to make, have made, use, offer for sale, and sell the Products to
CORVIS. VENDOR shall indemnify according to the provisions of this Agreement
and defend any action brought against CORVIS that is based on any claim that a
Product infringes any third party intellectual property; except when the
infringement claim is based on (i) a CORVIS supplied design, or (ii) a
combination of the Products with other devices or elements not supplied by
VENDOR and, absent such combination, there would be no sustainable claim of
infringement. CORVIS shall promptly notify VENDOR in writing of any
infringement claim and VENDOR shall have the right to control the defense of all
such claims, lawsuits, or proceedings. If an infringement claim is sustained,
or CORVIS' use of the Product is enjoined, VENDOR shall, if possible, either (i)
procure the right to continue to make, use, and sell the Product, or (ii)
replace or modify the Product to be non-infringing while still conforming to the
Product Quality Standards.
6.2 Right to Use. VENDOR hereby grants to CORVIS the right to use, offer
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for sale, and sell each Product for its intended purpose under all intellectual
property owned or licensed by VENDOR, either solely or jointly, as long as
CORVIS continues to purchase Products from VENDOR. Nothing in this Section 6.2
shall be deemed to expand, modify, contradict or supplement any other provision
of this Article VI.
6.3 THE FOREGOING IS VENDOR'S SOLE LIABILITY WITH RESPECT TO ANY CLAIMS
RELATING TO INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. VENDOR
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, RELATING TO CLAIMS THAT THE
PRODUCTS INFRINGE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. CORVIS SHALL
USE REASONABLE COMMERCIAL EFFORTS TO MITIGATE ANY DAMAGES UNDER THIS SECTION.
ARTICLE VII - COMPLIANCE WITH LAWS AND OTHER RESPONSIBILITIES
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7.1 VENDOR Responsibilities. VENDOR shall be solely responsible for
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compliance with all Environmental Laws, export laws, and other laws, rules,
regulations, Governmental Approvals, and governmental requirements applicable to
the manufacturing, storage, transportation and delivery of the Products. Nothing
in this Agreement is intended or should be construed as indicating that CORVIS
has the ability to control the operation of VENDOR's facilities.
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7.2 Safety Information. VENDOR shall acquire from the supplier of any raw
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materials, and make available to CORVIS, all appropriate information, including
Material Safety Data Sheets, regarding the properties and characteristics of
such materials and procedures for their proper handling, management and
disposition. VENDOR shall provide all such information to CORVIS as may be
applicable to the Products at time of delivery.
7.3 Compliance With Export Controls. CORVIS acknowledges that the Products
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and certain related technical information are subject to United States export
controls, pursuant to the Export Administration Regulations, 15 C.F.R. Parts
768-799. CORVIS shall comply with all requirements of the Export Administration
Regulations with respect to the Products and all such technical information.
Without limiting the generality of the foregoing, CORVIS agrees that, without
the prior written authorization of VENDOR and the United States Government,
CORVIS will not, and will not permit its representatives to,: (i) export,
reexport, divert or transfer the Products or any such technical information, or
any direct product thereof, to any destination, company, or person restricted or
prohibited by the United States export controls, or (ii) disclose any such
technical information to any national of any country when such disclosure is
restricted or prohibited by the United States export controls.
ARTICLE VIII -- CONFIDENTIAL INFORMATION
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VENDOR and CORVIS acknowledge that each may receive proprietary and
confidential information of the other in connection with the execution and
performance of this Agreement. Each party agrees not to use or disclose to
third parties any Confidential Information supplied to it by the other party as
provided in the Bi-lateral Nondisclosure Agreement executed by the parties on
Dec. 1, 1999 and Dec. 8, 1999, respectively (a copy of which is attached as
Attachment 3), that shall remain in full force and effect and control the
obligations of the parties with respect to Confidential Information exchanged
pursuant to this Xxxxxxxxx.Xx the extent that there are inconsistent provisions,
the terms of this Agreement shall control.
ARTICLE IX-- REPRESENTATIONS, WARRANTIES, COVENANTS
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9.1 VENDOR Representations, Warranties, and Covenants. VENDOR represents,
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warrants, and covenants to CORVIS that:
(a) VENDOR has disclosed to CORVIS any affiliation or association with a
CORVIS Competitor, other than as a VENDOR. No CORVIS Competitor holds a
Controlling Interest in VENDOR or operates as an affiliate or within the
same organization, or has any other relationship with VENDOR that would
provide access to information pertaining to VENDOR's relationship with
CORVIS. VENDOR shall notify CORVIS as soon as legally permitted if (i) a
CORVIS Competitor undertakes or consummates the acquisition of a
Controlling Interest in VENDOR, (ii) any agreement is reached under which
VENDOR may merge with or otherwise be acquired by a CORVIS Competitor, or
(iii) a change occurs in VENDOR's relationship with any CORVIS Competitor
that provides access to CORVIS' Confidential Information. VENDOR shall not
disclose or make available any CORVIS Confidential Information to any
Corvis Competitor without CORVIS' prior written consent. VENDOR holds and
will maintain all required Governmental Approvals necessary to operate
VENDOR's facilities involved in
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performing VENDOR's obligations under this Agreement, including but not
limited to, all Governmental Approvals required for (i) the storage, use,
processing, manufacture, and shipment of the Products or materials used in
the manufacture of the Products, and (ii) the storage, treatment, discharge
or disposal of any Regulated Substances or wastes generated by VENDOR's
processes or facilities.
(b) VENDOR shall comply with the requirements of all federal, state and
local laws, rules, regulations, ordinances, permits, licenses and other
requirements, including without limitation, all Environmental Laws,
applicable to the conduct by VENDOR of its business and the performance by
VENDOR of its obligations under this Agreement.
9.2 Insurance.
---------
(a) VENDOR shall obtain and maintain the following insurance coverages
for the duration of this Agreement:
(1) Workers Compensation Insurance as statutorily required; and
Employers' Liability Insurance of not less than $1 Million for each
accident, $1 Million disease limit per employee, and $1 Million disease
limit in the aggregate;
(2) Commercial general liability insurance, including, but not limited
to, product liability insurance, of not less than $1 Million per
occurrence, and $2 Million in the aggregate; and
(3) Umbrella insurance coverage with excess coverage limit of not less
than $8 Million.
(b) VENDOR shall provide CORVIS with the appropriate Certificates of
Insurance prior to the start of work under this Agreement.
(c) VENDOR shall notify CORVIS of any change in, or cancellation of, any
policies listed in this Section.
ARTICLE X -- TERM
-----------------
10.1 Term. Unless otherwise renewed pursuant to Section 10.2 or terminated
----
pursuant to Section 10.3, this Agreement shall commence on the date hereof, and
shall continue for a term ending on December 31, 2003 (the "Initial Term").
-12-
10.2 Renewal. CORVIS and VENDOR may by mutual agreement renew this
-------
Agreement for additional one (1) year terms (each a "Renewal Term") after the
expiration of the Initial Term, upon such terms and conditions as the parties
may agree. If CORVIS desires to extend the term of this Agreement beyond the
end of the Initial Term or any then-current Renewal Term, CORVIS shall provide
VENDOR at least forty (40) days prior to the end of such term a written notice
of such renewal request together with any proposed changes to the terms and
conditions of this Agreement. Within thirty (30) days after receipt of such
notice, VENDOR shall notify CORVIS whether it (i) accepts CORVIS' proposal for
such proposed Renewal Term, (ii) has a counteroffer for the terms and conditions
of the proposed Renewal Term, or (iii) is unwilling to renew this Agreement.
10.3 Termination.
-----------
(a) *
(b) Force Majeure. If a Force Majeure Event (defined below) prevents
-------------
VENDOR from performing its obligations under this Agreement for a period in
excess of 30 days, CORVIS shall have the right to terminate this Agreement
upon written notice to VENDOR
(c) Termination for Default. Either party may terminate this Agreement in
-----------------------
the event of a default by the other, as provided in Article 13.
ARTICLE XI -- FORCE MAJEURE
---------------------------
11.1 Force Majeure. Except as provided in Section 11.4, neither party
-------------
shall be liable for any failure or delay in performance of its obligations under
this Agreement due to any of the following conditions: (a) an act of God,
hurricane, tornado, epidemic, earthquake, flood, fire, explosion, power outage
or similar occurrence; (b) an act of the public enemy, war, riot, civil
disturbance, or similar occurrence; (c) the order, injunction or judgment of any
court, administrative agency, or governmental body with jurisdiction over the
performance of a party's obligations under this Agreement (excepting decisions
interpreting federal, state or local taxes), provided that such injunction,
order or judgment is not the result of the negligent or willful action or
inaction of the party relying thereon (collectively, a "Force Majeure Event").
11.2 Mitigation. The party seeking relief from its obligations shall be
----------
obligated to take all reasonable steps to mitigate the adverse effect of any
such Force Majeure Event.
11.3 Notice. Each party affected by a Force Majeure Event shall provide
------
prompt notice to the other party of the nature of the Force Majeure Event, its
anticipated impact and duration, and the actions being taken to avoid or
minimize its effect.
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-13-
11.4 Exceptions.
----------
(a) In no event shall a Force Majeure Event relieve a party from liability
for its own negligence or willful actions or inaction.
(b) Neither party shall be excused by a Force Majeure Event from the
obligation to pay money due under this Agreement.
ARTICLE XII- ASSIGNMENT AND SUBCONTRACTING
------------------------------------------
12.1 Assignment and Subcontracting by VENDOR. VENDOR shall not assign,
---------------------------------------
subcontract, or delegate any of its obligations hereunder without the prior
written consent of CORVIS, which consent shall not be unreasonably withheld.
12.2 Assignment by CORVIS. CORVIS may not assign any of its rights or
--------------------
obligations under this Agreement without the prior written consent of VENDOR,
which consent shall not be unreasonably withheld; provided, however, that CORVIS
may subcontract any part of its obligations, or assign this entire Agreement, to
any of CORVIS' majority-owned subsidiaries, by providing written notification to
VENDOR of such assignment or subcontract.
12.3 Full Liability. Notwithstanding any assignment or subcontract by
--------------
CORVIS permitted by the terms of this Section, or any assignment by CORVIS or
VENDOR pursuant to the prior written consent of the other party, each of VENDOR
and CORVIS shall remain fully liable for full performance of all of their
respective obligations under this Agreement.
ARTICLE XIII -- DEFAULT
-----------------------
13.1 Events of Default. Any one or more of the following shall constitute
-----------------
an Event of Default hereunder
(a) A party to this Agreement fails to perform or observe in any material
respect any material term, covenant, condition or restriction of this
Agreement, and such default shall continue for a period of * after notice
in writing thereof is given (unless resulting from a prior failure or
breach by the other party);
(b) The inaccuracy in any material respect of any representation or
warranty made by a party herein or in a document or certificate delivered
pursuant hereto; or
(c) A party to this Agreement ceases doing business in the normal course,
becomes insolvent, fails generally to pay its debts as they become due,
makes a general assignment for the benefit of creditors, suffers or permits
the appointment of a receiver for its assets, invokes the provisions of
bankruptcy, insolvency or similar laws or becomes subject to the provisions
of bankruptcy, insolvency or similar laws and any proceedings thereunder
are not dismissed or stayed within forty-five (45) days of commencement.
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-14-
13.2 Remedies Upon Default. Upon the occurrence of an Event of Default as
---------------------
described in Section 13.1 above, the non-defaulting party shall have the right
to terminate this Agreement by giving written notice to the defaulting party of
its intention to terminate, provided that the specified default is then
continuing. Upon such a termination, (a) VENDOR shall make available to CORVIS
any material, tangible or intangible, of CORVIS then in possession of VENDOR,
(b) the parties shall pay to each other all amounts then due and owing, and (c)
each party shall promptly return to the other party its Confidential
Information. The foregoing remedies are not exclusive, but are in addition to
any other rights and remedies provided in this Agreement, by law or in equity.
13.3 Limitation of Liability. Except for liability under ARTICLE 6,
-----------------------
neither party shall be liable for any special, indirect or consequential damages
arising in connection with this Agreement, including any loss of profits,
regardless of how caused, whether or not either party had been advised of the
possibility of such damages or the legal theory or form of course of action
under which such damages may be sought.
13.4 Survival of Obligations. Upon a termination of this Agreement,
-----------------------
neither party shall be relieved of any obligation or liability accruing
hereunder prior to the date of termination. In addition, the obligations of the
parties ARTICLES 6, 8 and 14 shall survive termination of this Agreement.
ARTICLE XIV - INDEMNIFICATION
-----------------------------
14.1 Indemnification by VENDOR. VENDOR hereby agrees to defend, indemnify
-------------------------
and hold harmless the CORVIS Indemnified Parties from and against any and all
Claims and Losses arising from or related to: (a) injury to or death of any
person or loss of or damage to property caused by VENDOR or VENDOR's Responsible
Parties in connection with the performance or nonperformance of VENDOR's
obligations under this Agreement, (b) non-compliance by VENDOR with any
Environmental Law, (c) any existing Environmental Condition at VENDOR's property
or facilities, or (d) any Environmental Condition and any pollution or
contamination of the environment arising from the storage, treatment, handling,
disposal, or release of Regulated Substances at VENDOR's facility, or (e)
subject to Section 13.3, the sale by VENDOR to CORVIS of Products processed by
VENDOR pursuant to this Agreement which do not conform to the specifications set
forth in Attachment 2, except to the extent that such Claims or Losses are
caused by the negligent or willful action or inaction of CORVIS or CORVIS
Responsible Parties.
14.2 Indemnification by CORVIS. CORVIS hereby agrees to defend, indemnify
-------------------------
and hold harmless VENDOR and the VENDOR Indemnified Parties from and against any
and all Claims and Losses, resulting from or arising out of: (a) injury to or
death of any person or loss of or damage to property caused by CORVIS or CORVIS
Responsible Parties, in connection with the performance or nonperformance of
CORVIS' obligations under this Agreement, (b) non-compliance by CORVIS with any
Environmental Law, (c) any existing Environmental Condition at CORVIS' property
or facilities, (d) any Environmental Condition, pollution or contamination of
the environment related to the release of Regulated Substances arising from the
shipment, handling, storage, or management of the Products while such Products
are under the ownership and control of CORVIS, or (e) the sale by CORVIS of the
Products, where such Products at the
-15-
time of delivery to CORVIS conformed to the specifications set forth in
Attachment 2, except to the extent that any of such VENDOR Losses are caused by
the negligent or willful actions or inaction of VENDOR, its agents, employees,
successors and assigns or others for whose actions VENDOR has legal
responsibility.
14.3 Indemnification Limitations and Procedures.
------------------------------------------
(a) (The indemnification obligations of both VENDOR (pursuant to Section
14.1) and CORVIS (pursuant to Section 14.2) are limited to the extent that
the amount of any recovery by a VENDOR Indemnified Party or CORVIS
Indemnified Party, as the case may be, shall be net of any foreign,
federal, state and/or local income tax benefits inuring to the Indemnified
Party as a result of the events that entitled the Indemnified Party to
recover from the Indemnifying Party.
(b) If any claim, liability, demand, assessment, action, suit or
proceeding shall be asserted against an Indemnified Party in respect of
which such Indemnified Party proposes to demand indemnification or defense,
the Indemnified Party shall promptly notify the Indemnifying Party thereof,
provided that the failure to so notify the Indemnifying Party shall not
reduce or affect the Indemnifying Party's obligations with respect thereto
except to the extent that the Indemnifying Party is materially prejudiced
thereby. Any written notice delivered pursuant to this Section shall set
forth with specificity the basis of the claim for indemnification or
defense and an estimate of the amount thereof.
(c) Subject to rights of or duties to any insurer or other third person
having liability therefor, the Indemnifying Party may, within thirty (30)
days following receipt of a notice of a claim under this Section, assume
the defense of any such Claim or Loss.
(d) In the event the Indemnifying Party assumes the defense of such Claim
or Loss:
(1) The Indemnifying Party may engage, at its expense, counsel selected
by the Indemnifying Party and approved by the Indemnified Party (which
approval shall not be unreasonably withheld). The Indemnified Party may
engage separate counsel at the Indemnified Party's sole expense.
(2) The other party shall cooperate and make available to the
Indemnifying Party and its representatives all employees, information,
books, and records reasonably necessary or useful in connection with the
defense.
(3) The Indemnifying Party shall have the right to compromise or settle
such Claim or Loss, provided that any such compromise or settlement must be
approved by the Indemnified Party (which approval shall not be unreasonably
withheld).
(e) If an Indemnifying Party does not elect to assume the defense of a
Claim or Loss pursuant to this Article:
-16-
(1) The Indemnified Party shall alone have the right to conduct such
defense, and to compromise or settle the Claim or Loss without prior
consent of the Indemnifying Party.
(2) If it is ultimately determined by a court of competent jurisdiction
that the Claim or Loss which forms the basis of such judgment or
settlement is one that is validly an obligation of the Indemnifying Party
who, after notice, elected not to assume the defense, the Indemnifying
Party shall be bound by any such judgment or settlement as to the
existence and amount of the claim, and the amount of such judgment or
settlement shall be conclusively deemed to be a liability on account of
which the other party is entitled to be indemnified pursuant to this
Article.
ARTICLE XVI -- MISCELLANEOUS
----------------------------
16.1 Authority. The parties hereby represent and warrant that they have
---------
full power and authority to enter into and perform this Agreement and the
parties know of no agreements, contracts, promises or undertakings which would
prevent the full execution and performance of this Agreement.
16.2 Independent Contractor. VENDOR's relationship to CORVIS shall be that
----------------------
of an independent contractor and nothing in this Agreement shall be construed to
constitute VENDOR or any of its employees or officers as an employee, agent,
joint venturer or partner of CORVIS.
16.3 Reservation of Rights. Either party's waiver of any of its remedies
---------------------
due to a breach by the other party shall be without prejudice and shall not
operate to waive any other remedies which it shall have available to it, nor
shall such waiver operate to waive its rights to any remedies due to a future
breach, whether of a like or different character.
16.4 Headings and Construction. The section headings contained in this
-------------------------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. To the extent the context
requires, the singular shall include the plural and the plural shall include the
singular. All dollar amounts listed herein shall be considered to be references
to U.S. dollars.
16.5 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Maryland without giving effect to the
choice of laws principles thereof.
16.6 Severability. In the event that any provision of this Agreement shall
------------
be found to be void or unenforceable, such finding shall not be construed to
render any other provision of this Agreement either void or unenforceable, and
all other provisions shall remain in full force and effect unless the provisions
which are invalid or unenforceable shall materially affect the rights or
obligations granted to or undertaken by either party hereunder.
-17-
16.7 Notices. Any notices required or permitted to be given under the
-------
terms of this Agreement shall be in writing and sent to the following address by
(a) certified or registered United States Mail, return receipt requested,
postage prepaid (b) Federal Express or comparable overnight or next business day
courier service, or facsimile. Notices shall be deemed given only upon receipt
at the following addresses:
If to VENDOR: If to CORVIS:
------------- -------------
WaveSplitter Technologies, Inc. CORVIS Telecommunications, Inc.
00000 Xxxxxxx Xxxx. 0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000 XX Xxx 0000
Attn: Chief Financial Officer Columbia, MD 21046-9400
Attention: Director of Logistics
With a copy to: General Counsel
16.8 Waiver. Any failure of either party to comply with any of its
------
obligations or agreements herein contained may be waived only in writing by the
other party.
16.9 Binding Effect; Benefits. This Agreement shall inure to the benefit
------------------------
of and be binding upon the parties hereto and their respective successors and
assigns. Nothing in this Agreement, express or implied, is intended to confer
on any person other than the parties hereto and their respective successors and
permitted assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
16.10 Counterparts. This Agreement may be executed simultaneously in two
------------
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
16.11 Full Agreement. This Agreement represents the complete and
--------------
exclusive statement of the parties with respect to its subject matter. All
prior understandings, agreements and discussions with respect hereto are merged
into and superseded by this Agreement. No amendment, modification or waiver of
any provision of this Agreement and no understanding, course of dealing or usage
of trade purporting to modify this Agreement shall be effective unless it is in
writing signed by both parties and specifically states an intention to modify
and amend this Agreement. No modification or amendment shall be effected by the
acknowledgment or acceptance of purchase orders, shipping instructions, or other
forms containing terms at variance with or in addition to those set forth
herein.
-18-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
WaveSplitter Technologies, Inc. CORVIS CORPORATION
Signature: /s/ Xxxxxxx X. Xxxxxxx, Xx. Signature: /s/ XXXXX X. XXXXX
----------------------------- ----------------------------
By: Xxxxxxx X. Xxxxxxx, Xx. By: Xxxxx X. Xxxxx
----------------------------- ---------------------------
Title: President & CEO Title: President & CEO
----------------------------- ---------------------------
Date: 11/15/00 Date: 11/15/00
----------------------------- ---------------------------
-19-
APPENDIX 1
DEFINITIONS
-----------
(a) "Claims" and "Losses" means any suits, claims, actions, damages,
losses, liabilities, obligations, expenses, damages, fines, penalties, or costs
and expenses, including costs of defense, settlement and reasonable attorney's
fees (including those incurred in connection with the defense or prosecution of
any indemnifiable claim or incurred in connection with the enforcement of an
indemnification provision). Unless specifically stated in an indemnification
provision, Claims and Losses does not include any consequential, indirect,
incidental, or other similar damages (including without limitation lost profits)
incurred by any indemnified party, under any form or theory of action
whatsoever, whether in contract or otherwise).
(b) "Confidential Information" means all business, personnel, and technical
information, designs, specifications, techniques, data and related know-how,
technical knowledge, trade secrets and experience, customer lists, sales and
market information, now or hereafter in the possession of VENDOR related to the
Products, and the products or business of CORVIS. Confidential Information
includes any improvements to designs, specifications, techniques or processes
related to the Products, whether such improvements are developed by CORVIS or
the VENDOR.
(c) "Controlling Interest" means owning twenty-five (25%) percent or more
of the voting stock of VENDOR.
(d) "CORVIS Competitor" means Alcated Alsthom, Ciena Corporation, NEC
Corporation, Nortel Networks Corp, Cisco Systems, Inc or Lucent Technologies,
Inc. From time to time, CORVIS may, upon written consent of VENDOR, which shall
not be unreasonably withheld, add additional companies to the foregoing list
provided that any addition is engaged in the manufacturing or distribution of
products that are of substantially similar nature or use to the products
manufactured or sold by CORVIS.
(e) "CORVIS Indemnified Parties" means CORVIS, its officers, directors,
employees, agents, successors and permitted assigns.
(f) "CORVIS Responsible Parties" means CORVIS, and CORVIS' agents,
employees, successors and assigns, or others for whose actions CORVIS has legal
responsibility.
(g) Effective Date" is the date of this Agreement as listed in the opening
paragraph of this Agreement.
(h) "Environmental Condition" means the presence of a Regulated Substance
(other than a naturally occurring substance) on or at a property (including, but
not limited to, the presence in surface water, groundwater, soils or subsurface
strata).
(i) "Environmental Law" means any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, or policy having the force of law
relating to protection of the environment or relating to the production,
generation, use, storage, treatment, processing, transportation or disposal of
Regulated Substances, including, without limitation: the
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-20-
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
(S) 9601 et seq. ("CERCLA"); the Superfund Amendments and Reauthorization Act,
------
Public Law 99-499, 100 Stat. 1613; Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. (S) 6901, et seq.; the National Environmental Policy Act, 42
-- ---
U.S.C. (S) 4321; the Safe Drinking Water Act, 42 U.S.C. (S) 300f et seq.; the
-- ---
Toxic Substances Control Act ("TSCA"), 15 U.S.C. (S) 2601 et seq.; the Federal
-- ---
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S) 136, et seq.; the
-- ---
Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801; the Federal Water
Pollution Control Act, 33 U.S.C. (S) 1251 et seq.; the Oil Pollution Act of
-- ---
1990, 33 U.S.C. (S) 2701, et seq.; the Clean Air Act, 42 U.S.C. (S) 7401 et
-- --- --
seq., and counterpart state and foreign statutes, and regulations adopted
---
thereunder. "Environmental Law" does not include or encompass the tort,
contract, or any other law of any jurisdiction concerning or relating to Claims
and Losses for product liability, breach of warranty, trespass, nuisance,
personal injury or property damage.
(j) "Governmental Approval" means any permit, license, authorization,
consent, approval, waiver, exception, variance, order, or exemption issued by
any federal, state or local governmental authority pursuant to an Environmental
Law.
(k) "Indemnified Party" means a VENDOR Indemnified Party or a CORVIS
Indemnified Party who is owed an obligation to indemnify and defend against a
Claim or Loss pursuant to Section 14.
(l) "Indemnifying Party" means the VENDOR or CORVIS, as the case may be,
who owes an obligation to indemnify and defend against a Claim or Loss pursuant
to Section 14.
(m) "Manufacturing Standards" means the specifications for manufacturing
process steps and manufacturing conditions set forth in Attachment 2.
(n)"Products" shall mean the products described in Attachment 1.
(o) "Product Quality Specifications" means those specifications for a
Product established pursuant to Attachment 2 and shall include performance and
other specifications.
(p) "Purchase Order" shall mean a purchase order delivered by CORVIS and
may include data in an equivalent form exchanged by Electronic Data Interchange.
(q) "Regulated Substance" means any pollutant, contaminant, hazardous
substance, hazardous material, toxic substance, toxic pollutant, solid waste,
municipal waste, industrial waste, or hazardous waste, that is defined as such
and is subject to regulation under any applicable Environmental Law.
(r) "VENDOR Indemnified Parties" means VENDOR, its officers, directors,
employees, agents, successors and permitted assigns.
(s) "VENDOR Responsible Parties" means the VENDOR, and VENDOR's agents,
employees, successors and assigns, or others for whose actions VENDOR has legal
responsibility.
-21-
ATTACHMENT 1 - PRODUCT SUMMARY
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
ATTACHMENT 2
------------
SPECIFICATIONS
--------------
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Attachment 3
BI-LATERAL NON-DISCLOSURE AGREEMENT
-----------------------------------
This Agreement made and entered into on 30 November 1999 by and between
CORVIS Corporation, formerly known as NOVA Telecommunications, Inc. ("CORVIS"),
having an office at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000
and WaveSplitter Technologies, Inc. having an office at 00000 Xxxxxxx Xxxxxxxxx.
Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"). Company and CORVIS arc collectively
referred to herein as the "Parties" and are, as specified below, sometimes
individually referred to herein as the "Party", the "Discloser" or the
"Recipient."
1. Recitals
--------
The Parties desire to disclose to each other information relating to their
respective products and capabilities in the field of optics and electronics, in
furtherance of a mutual business interest.
2. Definition
----------
"Confidential Information" shall mean any and all proprietary and
confidential information disclosed by a Party (the "Discloser") to the other
Party receiving such information (the "Recipient"), including, without
limitation, information pertaining to system concepts, electronic
configurations, component specifications, logic diagrams, equipment designs,
system designs, system architecture, protocols, software, processes, financial
matters, business and personnel matters, research programs and the like.
3. Protection of Confidential Information
--------------------------------------
In consideration of Discloser disclosing from time to time at its own
discretion certain of its Confidential Information to Recipient or its
officers, employees or agents, Recipient agrees that it will not disclose at any
time, nor permit its officers, employees or agents to disclose at any time
(either during their respective employment by Recipient or thereafter), nor
appropriate or use on its own behalf or on the behalf of others, any
Confidential Information, without in each instance first obtaining Discloser's
written consent thereto. The relationship created under this Agreement is
confidential and is to be treated as Confidential Information according to the
terms of this Agreement. Except as necessary to fulfill the purposes of this
Agreement, Recipient further agrees not to make, or permit to be made by its
BI-LATERAL NON-DISCLOSURE AGREEMENT
-----------------------------------
2
officers, employees or agents, copies, abstracts or summaries of any
Confidential Information, including, but not limited to, pictures, drawings,
specifications, plans, data, notes and reports embodying any Confidential
Information. Recipient further agrees to return to Discloser or certify
destruction thereof, upon Discloser's request, all such documents or other
embodiments of any Confidential Information.
4. Extent of Application
---------------------
The obligations under this Agreement shall not apply to Confidential
Information which (a) is available to the public by publication in a single
source; (b) is rightfully received by the Recipient from a third party without
restriction on disclosure and without breach of this Agreement; (c) is
independently developed by the Recipient provided that any person developing
same has not had access to the Confidential Information; (d) is approved for
release by written authorization of Discloser; (e) is disclosed pursuant to a
requirement of a governmental agency or by judicial requirement.
5. No Grant of License
-------------------
This Agreement Shall not be construed as granting or conferring, either
expressly or by implication, any rights, licenses or relationships by the
furnishing of Confidential Information specified above or pursuant to this
Agreement. Without in any way limiting the foregoing, it is specifically
understood and agreed that Recipient shall in no way obtain any copyright in
any computer program furnished hereunder by the Discloser nor in any
translation, modification, correction or addition thereto.
6. Remedies
--------
Each Party agrees to indemnify and hold the other harmless from any
damages, loss, cost. or liability (including legal fees and the cost of
enforcing this indemnity) arising out of or resulting from any unauthorized use
or disclosure by a Party or its Representatives of the Confidential Information
or other violation of this Agreement. In addition, because an award of money
damages (whether pursuant to the foregoing sentence or otherwise) would be
inadequate for any breach of this Agreement and any such breach would cause a
Party irreparable harm, each Party also agrees that, in the event of any breach
or threatened breach of this Agreement,
BI-LATERAL NON-DISCLOSURE AGREEMENT
-----------------------------------
3
the non-breaching Party will also be entitled, without the requirement of
posting a bond or other security, to equitable relief, including injunctive
relief and specific performance. Such remedies will not be the exclusive
remedies for any breach of this Agreement but will be in addition to all other
remedies available at law or equity to the aggrieved Party.
7. Export Control
--------------
Each Party acknowledges that any information provided under this Agreement
by the other Party is subject to U.S. export laws and regulations, and any use
or transfer of such information must be authorized under those regulations. Each
Party agrees that it will not use, distribute, transfer, or transmit the
information of the other Party in any products except in compliance with U.S.
export regulations. If requested, each Party also agrees to sign written
assurances and other export-related documents as may be required for the other
Parties to comply with U.S. export regulations. This obligation survives any
termination of this Agreement.
8. Miscellaneous
-------------
(a) Modification. The agreements set forth in this Agreement may be
------------
modified or waived only by a separate writing signed by both Parties expressly
modifying or waiving such agreements.
(b) Waiver. The rights and remedies of the Parties hereunder are
------
cumulative and not alternative. Neither the failure nor any delay by any Party
in exercising any right, power, or privilege under this Agreement will operate
as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other further
exercise of such right, power, or privilege or the exercise of any other right,
power, or privilege.
(c) Person. The term "person" means any individual, corporation
------
(including any non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
labor union,, or other entity or governmental body.
(d) Severability. The invalidity or unenforceability of any provision of
------------
this Agreement shall not affect the validity or enforceability of any other
provisions of
BI-LATERAL NON-DISCLOSURE AGREEMENT
-----------------------------------
4
this Agreement, which shall remain in full force and effect. If any of the
covenants or provisions of this Agreement are determined to be unenforceable by
reason of its extent, duration, scope or otherwise, the Parties contemplate that
the court making such determination shall reduce such extent, duration, scope or
other provision and enforce them in their reduced form for all purposes
contemplated by this Agreement.
(e) Costs. The Recipient agrees that if it is held by any court of
-----
competent jurisdiction to be in violation, breach, or nonperformance of any of
the terms of this Agreement, then it will pay all costs of such action or suit,
including reasonable attorneys' fees.
(f) Jurisdiction: Service of Process. Any action or proceeding seeking
--------------------------------
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against either of the Parties in the courts of the
State of Maryland, or, if it has or can acquire jurisdiction, in the United
States District Court for the Northern Division of Maryland, and each of the
Parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any Party anywhere in the world.
(g) Governing Law. This Agreement will be governed by the laws of the
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State of Maryland without regard to conflicts of law principles.
(h) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original copy of this
Agreement, and all of which, when taken together, shall be deemed to constitute
one and the same Agreement.
(i) Termination. This Agreement can be terminated by either Party by
-----------
providing written notice to the other Party, the notice being delivered in
person, by national courier or delivery service, or by first-class registered or
certified mail, with the expenses of delivery prepaid. The termination of the
Agreement will not become effective until thirty (30) days after the delivery of
the written notice to the other Party and upon the return, or certified
destruction, of all Confidential Information. This Agreement shall terminate
three years from the effective date. The obligation to
BI-LATERAL NON-DISCLOSURE AGREEMENT
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protect Confidential Information shall survive the termination of this Agreement
for a period of three years.
(j) Authority to sign Agreement. Each Party, and each signer
---------------------------
individually, represents and warrants that the respective person signing on
behalf of the party has the authority and is duly authorized to do so.
IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as
of the date first written above.
WaveSplitter Technologies, Inc. CORVIS Corporation
Signature: /s/ Xxxxx Xxxxxxx Signature: /s/ Xxx X. Xxxxxx
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By: Xxxxx Xxxxxxx By: Xxx X. Xxxxxx
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Title: VP and CFO Title: General Counsel
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Date: Dec. 1, 1999 Date: Dec. 8, 1999
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