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Procurement Agreement
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PROCUREMENT AGREEMENT
THIS PROCUREMENT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this �Agreement�) is made and entered into as of the 31st day of July, 2001 (the �Effective Date�) by and between OpNext Japan, Inc. (hereinafter referred to as �Seller�), a corporation organized and existing under the laws of Japan with its principal place of business at 216 Totsuka-cho, Totsuka-ku, Yokohama-shi, 244-8567, Japan and Hitachi, Ltd. (hereinafter referred to as �Purchaser�), a corporation organized and existing under the laws of Japan . . .
2707391
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Procurement Agreement
Procurement Agreement (24K)
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PROCUREMENT AGREEMENT
This Procurement Agreement ("Agreement") is made effective as of the 1st day of November, 2006 (the "Effective Date") by and between THE ENGRAVER, INC., a Washington corporation and its affiliates ("TEI"), and THE ENGRAVING MASTERS, INC., a Nevada corporation ("EMI").
Recitals
A. EMI wishes to sell recognition awards such as trophies, medals, statuettes and plaques, as well as engraving services to consumers and to make related information available to consumers online via an e-commerce website to be operated by EMI.
B. EMI desires to . . .
3229945
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Procurement Agreement
Procurement Agreement (47K)
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Procurement Agreement
between
***
? hereinafter called ?the Buyer? ?
and
Crow Electronic Engineering Ltd.
Kineret Street
Airport City 70100
Israel
-hereinafter called ?the Vendor?-
*** Confidential Treatment Requested
***
Global Procurement Agreement
TABLE OF CONTENTS
PREAMBLE
4
1
OBJECT OF THE AGREEMENT
4
2
BRAND NAMES AND COPYRIGHTS, PRODUCT LABELLING
4
3
LAWS
5
4
ORDERS
5
4.1
Companies entitled to place Orders and make Deliveries . . .
2260660
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Procurement Agreement
Procurement Agreement (42K)
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PROCUREMENT AGREEMENT
THIS PROCUREMENT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this �Agreement�) is made and entered into as of the 31st day of July, 2001 (the �Effective Date�) by and between OpNext Japan, Inc. (hereinafter referred to as �Seller�), a corporation organized and existing under the laws of Japan with its principal place of business at 216 Totsuka-cho, Totsuka-ku, Yokohama-shi, 244-8567, Japan and Hitachi, Ltd. (hereinafter referred to as �Purchaser�), a corporation organized and existing under the laws of Japan . . .
2675981
|
Hitachi
As referenced in this Procurement Agreement:
Hitachi, Ltd – as Seller), a corporation organized and existing under the laws of Japan with its principal place of business at 216 Totsuka-cho, Totsuka-ku, Yokohama-shi, 244-8567, Japan and Hitachi, Ltd . (hereinafter referred to as Purchaser), a corporation organized and existing under the laws of Japan with its principal place of business at 216 Totsuka-cho, Totsuka-ku, Yokohama-shi,
_____________
Hitachi, Ltd – to Seller, to:
Irell & Manella, LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
Attention: Richard L. Bernacchi, Esq.
Ian Wiener, Esq.
- 12 -
If to Purchaser:
Hitachi, Ltd .
6, Kanda-Surugadai 4-chome
Chiyoda-ku
Tokyo, 101-8010 Japan
Attention: President, Telecommunication Systems Division
with a copy, which will not constitute notice to Purchaser, to:
Kirkland &
_____________
HITACHI, LTD – the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
OPNEXT JAPAN, INC.
By:
/s/ Junsuke Kusanagi
Junsuke Kusanagi
President
HITACHI, LTD .
By:
/s/ Eiji Aoki
Eiji Aoki
Managing Officer & Administrative Officer
President, Telecommunication Systems Division
AMENDMENT TO
PROCUREMENT AGREEMENT
This Amendment (the Amendment), is entered on October 18, 2006 (
_____________
Hitachi Ltd – Division
AMENDMENT TO
PROCUREMENT AGREEMENT
This Amendment (the Amendment), is entered on October 18, 2006 (the Amendment Date), and made effective retroactively as of July 31, 2006, by and between Hitachi Ltd ., a corporation organized and existing under the laws of Japan (Hitachi), and Opnext Japan, Inc., a corporation organized and existing under the laws of Japan (Company), and is intended
_____________
HITACHI, LTD – of the other party.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be duly executed and to be effective as of the Amendment Date set forth above.
HITACHI, LTD .
OPNEXT JAPAN, INC.
/s/ Naoya Takahashi
/s/ Kei Oki
Name:
Naoya Takahashi
Name:
Kei Oki
Title:
Vice President and Executive Officer
Title:
President, Opnext Japan, Inc.
_____________
dt 1674497
;
| |
| Full Doc
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Procurement Contract
Procurement Contract (41K)
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1247266
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Procurement Agreement
Procurement Agreement (103K)
Doc #144050: Click preview link for longer preview.
PROCUREMENT AGREEMENT
BETWEEN
INDUSTRIAS DE TELECOMUNICACIONES
AMERICANAS - ATEL S.A.
(A WHOLLY-OWNED SUBSIDIARY OF
CALYPSO WIRELESS, INC.)
CHINA TELECOM CHANGZHOU
TLECOMMUNICATION BUREAU
(CHINA TELECOM)
{PAGE}
TABLE OF CONTENTS
-----------------
ARTICLE DESCRIPTION PAGE
------- -------------------------------------------------- ----
1 FIELD TRIAL EQUIPMENT AND SOFTWARE . . . . . . . 1
2 SCOPE; VOLUME DEPLOYMENT; AND MINIMUM
DEPLOYMENT COMMITMENT. . . . . . . . . . . . . . 3
3 ACCEPTANCE . . . . . . . . . . . . . . . . . . . 8
4 TERM . . . . . . . . . . . . . . . . . . . . . . 8
5 DOCUMENTATION AND REPORTS. . . . . . . . . . . . 9
6 DELIVERY AND INSTALLATION. . . . . . . . . . . . 9
7 FORCE MAJEURE. . . . . . . . . . . . . . . . . . 9
8 TRAINING . . . . . . . . . . . . . . . . . . . . 10
9 SOFTWARE LICENSE . . . . . . . . . . . . . . . . 10
10 SOFTWARE MODIFICATIONS . . . . . . . . . . . . . 12
11 EQUIPMENT MODIFICATIONS. . . . . . . . . . . . . 12
12 PROPRIETARY INFORMATION. . . . . . . . . . . . . 14
13 WARRANTIES AND WARRANTY EXCLUSIONS AND
LIMITATIONS. . . . . . . . . . . . . . . . . . . 16
14 REPRESENTATIONS AND OTHER WARRANTIES . . . . . . 18
15 REMEDIES AND LIMITATIONS . . . . . . . . . . . . 19
16 SUPPORT AND OTHER SERVICES . . . . . . . . . . . 20
17 COVERAGE INTERFERENCE AND THIRD PARTY FACILITIES 20
18 INDEMNIFICATION. . . . . . . . . . . . . . . . . 20
19 PATENTS, COPYRIGHT AND TRADE SECRETS . . . . . . 21
20 TERMINATION. . . . . . . . . . . . . . . . . . . 21
21 DISPUTE RESOLUTION . . . . . . . . . . . . . . . 22
22 NOTICE AND REPRESENTATIVES OF THE PARTIES. . . . 22
23 MISCELLANEOUS. . . . . . . . . . . . . . . . . . 23
24 INCORPORATION OF DOCUMENTS . . . . . . . . . . . 25
25 DEFINITIONS. . . . . . . . . . . . . . . . . . . 25
26 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . 27
{PAGE}
ATTACHMENTS
-----------
ATTACHMENT DESCRIPTION PAGE
---------- ------------------------------------------------------ ----
1 Field Trial Equipment And Software And Pricing . . . 29
2 Field Trial Test Criteria. . . . . . . . . . . . . . 30
3 Field Trial Equipment And Software Delivery Schedule 31
4 Field Trial Support Services . . . . . . . . . . . . 32
5 Project Schedule . . . . . . . . . . . . . . . . . . 33
6 Prices For Products and Services . . . . . . . . . . 34
7 Product Specifications . . . . . . . . . . . . . . . 37
8 Product Life . . . . . . . . . . . . . . . . . . . . 38
9 Maintenance and Support Services And Other Services. 39
10 Calypso Equipment Training Classes . . . . . . . . . 43
11 Warranty Period. . . . . . . . . . . . . . . . . . . 45
{PAGE}
THIS PROCUREMENT AGREEMENT ("Agreement"), made effective as of this 6th day
---------
of April, 2001 ("Effective Date"), by and between Industrias De
---------------
Telecomunicaciones Americanas ATEL, S.A., a Costa Rican entity, which is a
wholly-owned subsidiary of Calypso Wireless, Inc., having its principal place of
business at Metropolitan Free Trade Zone, San Jose, Costa Rica ("Calypso"), and
-------
China Telecom Changzhou Telecommunication Bureau (China Telecom) a corporation
of the People's Republic of China, having its principal place of business at No.
168 He Ping South Road Changzhou, P.C. 213003, the People's Republic of China,
("Customer").
--------
RECITALS
A. Calypso is a development stage company that has developed a
technology for telecommunications systems and devices, and is a manufacturer of
next-generation cellular phones, IP wireless phones and communications
equipment.
B. Customer is a leading telecommunications service provider in The
People's Republic of China ("P.R.C.") offering a broad range of
------
telecommunications services to meet the increasing demand for telecommunications
services in the P.R.C.
C. Customer desires to deploy commercially, and Calypso desires to
supply, Calypso equipment and software in Customer's network contingent upon
such equipment and software performing in accordance with the Field Trial Test
Criteria (as defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE 1
FIELD TRIAL EQUIPMENT AND SOFTWARE
In order to enable Customer to conduct a field trial (the "Field Trial") of
-----------
Calypso's wireless pagers and cellular phones, Customer shall purchase the
Equipment and license the Software from Calypso (the "Field Trial Equipment and
-------------------------
Software") listed, and in the configuration set forth, in Attachment 1 attached
-------- ------------
hereto and at the prices set forth below to enable Customer to conduct the Field
Trial and confirm that the Field Trial Equipment and Software fulfill the test
criteria set forth in Attachment 2 ("Field Trial Test Criteria"). If the
------------- ---------------------------
Equipment and Software meet the Field Trial Test Criteria, the parties shall
proceed expeditiously with the full deployment of the Equipment and Software in
accordance with the terms of this Agreement.
144050
| Industrias De Telecomunicaciones Americanas - Atel S.A.;
China Telecom Changzhou;
| Calypso Wireless Inc.
|
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| 2003 |
Procurement Agreement
Procurement Agreement (94K)
Doc #144051: Click preview link for longer preview.
PROCUREMENT AGREEMENT
BETWEEN
CALYPSO WIRELESS, INC.
AND
CGE DISTRIBUTORS CORP.
March 19, 2003
{PAGE}
TABLE OF CONTENTS
-----------------
ARTICLE DESCRIPTION PAGE
------------------------------------------------------------------------------
1 FIELD TRIAL EQUIPMENT AND SOFTWARE. . . . . . . . . 1
2 SCOPE; VOLUME DEPLOYMENT; AND MINIMUM
DEPLOYMENT COMMITMENT . . . . . . . . . . . . . . . 2
3 ACCEPTANCE. . . . . . . . . . . . . . . . . . . . . 7
4 TERM. . . . . . . . . . . . . . . . . . . . . . . . 7
5 DOCUMENTATION AND REPORTS . . . . . . . . . . . . . 7
6 DELIVERY AND INSTALLATION . . . . . . . . . . . . . 8
7 FORCE MAJEURE . . . . . . . . . . . . . . . . . . . 8
8 TRAINING. . . . . . . . . . . . . . . . . . . . . . 8
9 SOFTWARE LICENSE. . . . . . . . . . . . . . . . . . 9
10 SOFTWARE MODIFICATIONS. . . . . . . . . . . . . . . 10
11 EQUIPMENT MODIFICATIONS . . . . . . . . . . . . . . 11
12 PROPRIETARY INFORMATION . . . . . . . . . . . . . . 12
13 WARRANTIES, AND WARRANTY EXCLUSIONS
AND LIMITATIONS . . . . . . . . . . . . . . . . . . 13
14 REPRESENTATIONS AND OTHER WARRANTIES. . . . . . . . 15
15 REMEDIES AND LIMITATIONS. . . . . . . . . . . . . . 16
16 SUPPORT AND OTHER SERVICES. . . . . . . . . . . . . 17
17 COVERAGE INTERFERENCE AND THIRD PARTY FACILITIES. . 17
18 INDEMNIFICATION . . . . . . . . . . . . . . . . . . 17
19 PATENTS, COPYRIGHT AND TRADE SECRETS. . . . . . . . 18
20 TERMINATION . . . . . . . . . . . . . . . . . . . . 18
21 DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . 21
22 NOTICE AND REPRESENTATIVES OF THE PARTIES . . . . . 21
23 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 21
24 INCORPORATION OF DOCUMENTS. . . . . . . . . . . . . 22
25 DEFINITIONS . . . . . . . . . . . . . . . . . . . . 22
26 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . 25
{PAGE}
ATTACHMENTS
-----------
ATTACHMENT DESCRIPTION PAGE
--------------------------------------------------------------------------------
1 Field Trial Equipment and Software Pricing. . . . . . . . . 26
2 Field Trial Test Criteria . . . . . . . . . . . . . . . . . 27
3 Field Trial Equipment And Software Delivery Schedule. . . . 28
4 Field Trial Support Services. . . . . . . . . . . . . . . . 29
5 Project Schedule. . . . . . . . . . . . . . . . . . . . . . 30
6 Prices For Products And Services. . . . . . . . . . . . . . 31
7 Product Specifications. . . . . . . . . . . . . . . . . . . 33
8 Product Life. . . . . . . . . . . . . . . . . . . . . . . . 34
9 Maintenance And Support Services And Others Services . 35
10 Calypso Equipment Training Classes. . . . . . . . . . . . . 39
11 Warranty Period . . . . . . . . . . . . . . . . . . . . . . 41
{PAGE}
THIS PROCUREMENT AGREEMENT ("Agreement"), made effective as of this 19th
day of March, 2003 ("Effective Date"), by and between Calypso Wireless, Inc., a
Delaware corporation, having its principal place of business at 5979 NW 151
Street, Miami, Florida 33014 ("Calypso"'), and CGE Distributors Corporation., a
Costa Rican entity, having its principal place of business at 200 MTS West San
Pedro, San Jose. ("Customer").
RECITALS
A. Calypso is a development stage company that has developed a
technology for telecommunications systems and devices, and is a manufacturer of
next-generation cellular broadband real-time video phones and communications
equipment.
B. Customer is a distributors of cellular phones and
telecommunications equipment in Central America and the Caribbean offering a
broad range of telecommunications products and services.
C. Customer desires to distribute commercially, and Calypso
desires to supply Calypso cellular phones, WLAN Access Point, PCMCIA Card and
software.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE 1
FIELD TRIAL EQUIPMENT AND SOFTWARE
In order to enable Customer to conduct a field trial (the "Field Trial") of
Calypso's cellular broadband real-time video phones, WLAN access points and
PCMCIA cards, Customer shall purchase the Equipment and license the Software
from Calypso (the "Field Trial Equipment and Software") listed, and in the
configuration set forth, in Attachment 1 attached hereto and at the prices set
forth below to enable Customer to conduct the Field Trial and confirm that the
Field Trial Equipment and Software fulfill the test criteria set forth in
Attachment 2 ("Field Trial Test Criteria"). If the Equipment and Software meet
the Field Trial Test Criteria, the parties shall proceed expeditiously with the
full deployment of the Equipment and Software in accordance with the terms of
this Agreement.
1.1 Price and Payment.
--------------------
1.1.1 Price. The price (the "Field Trial Equipment and Software
------
Price") for the Field Trial Equipment and Software are set forth in Attachment 1
------------
attached hereto, and such prices do not include any kind of taxes whatsoever,
however designated, which may be levied or assessed on the Products or Services
provided hereunder.
1.1.2. Payment. All payments by Customer to Calypso for the Field
--------
Trial Equipment and Software shall be made in US Dollars, via wire transfer of
immediately available funds to a bank account designated by Calypso, within 10
days from the date of issuance of a commercial invoice by Calypso together with
copies of shipping documents for the Field Trial
144051
| CGE Distributors Corp.;
| Calypso Wireless Inc.
|
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Procurement Agreement
Procurement Agreement (103K)
Doc #1432042: Click preview link for longer preview.
PROCUREMENT AGREEMENT
BETWEEN
INDUSTRIAS DE TELECOMUNICACIONES
AMERICANAS - ATEL S.A.
(A WHOLLY-OWNED SUBSIDIARY OF
CALYPSO WIRELESS, INC.)
CHINA TELECOM CHANGZHOU
TLECOMMUNICATION BUREAU
(CHINA TELECOM)
<PAGE>
TABLE OF CONTENTS
------------- . . .
1432042
| | |
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Procurement Agreement
Procurement Agreement (94K)
Doc #1432043: Click preview link for longer preview.
PROCUREMENT AGREEMENT
BETWEEN
CALYPSO WIRELESS, INC.
AND
CGE DISTRIBUTORS CORP.
March 19, 2003
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE DESCRIPTION PAGE
------------------------------------------------------------------- . . .
1432043
| | |
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Procurement Agreement
Procurement Agreement (38K)
Doc #144097: Click preview link for longer preview.
--------------------------------------------------------------------------------
AUCTION MARKET PREFERRED STOCK
PROCUREMENT AGREEMENT
Dated as of February 7, 2002
by and between
THE STANLEY WORKS
and
BNP PARIBAS
--------------------------------------------------------------------------------
{PAGE}
This AUCTION MARKET PREFERRED STOCK PROCUREMENT AGREEMENT
(this "AGREEMENT") is dated as of February 7, 2002 and is by and between THE
STANLEY WORKS, a Connecticut corporation and BNP PARIBAS, a societe anonyme
organized and existing under the laws of The Republic of France ("INVESTOR").
W I T N E S S E T H
WHEREAS, The Stanley Works is the owner of all 155,652 of the
outstanding shares of Common Stock, par value $0.01 per share, of Stanley
Logistics, Inc., a Delaware corporation (the "COMPANY");
WHEREAS, pursuant to an Auction Market Preferred Stock
Subscription Agreement, dated February 4, 2002, between the Company and The
Stanley Works (the "SUBSCRIPTION AGREEMENT"), The Stanley Works has agreed
either to subscribe for, or to procure the purchase by another person or persons
of, and the Company has agreed to issue, 11,445 shares of Auction Market
Preferred Stock, par value $0.01 per share, of the Company which shares (the
"AMPS SHARES") are to be issued under the Certificate of Rights, Powers,
Designations and Preferences, and the Qualifications, Limitations or
Restrictions of the Auction Market Preferred Stock of the Company (the
"CERTIFICATE OF DESIGNATIONS") at a subscription price per share equal to the
Liquidation Preference (as defined in Annex A hereto) of such shares (the "ISSUE
PRICE");
WHEREAS, Investor desires that The Stanley Works have the
Company issue to Investor the AMPS Shares and Investor is willing to pay the
Issue Price for each AMPS Share contemporaneously with the issuance of the AMPS
Shares to Investor;
WHEREAS, Investor has had a long-standing relationship with
The Stanley Works and its affiliates which has generated various business
opportunities for Investor, such as, for instance, a European cash pooling
mandate and mergers & acquisitions advisory services for European acquisitions;
WHEREAS, Investor would like to create closer links with the
Company through the purchase of AMPS Shares issued by the Company in the hope
that this may create various other business transaction opportunities with the
Company which might include the arrangement of and participation in transactions
considered by the Company to finance the Company's expansion in the United
States, although, for the avoidance of doubt, the Company is expressly not
committing itself at this time to the awarding of any future mandates to
Investor;
NOW, THEREFORE, the parties, intending to be bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Terms not otherwise defined herein shall have the meanings set
forth in Annex A hereto (with terms defined in the singular having comparable
meanings when used in the plural and vice-versa), unless the context otherwise
requires.
144097
|
Stanley Works
As referenced in this Procurement Agreement:
STANLEY WORKS
– PAGE}
CONFORMED COPY
EXHIBIT (10)(xxii)(b)
---------------------
--------------------------------------------------------------------------------
AUCTION MARKET PREFERRED STOCK
PROCUREMENT AGREEMENT
Dated as of February 7, 2002
by and between
THE STANLEY WORKS
and
BNP PARIBAS
--------------------------------------------------------------------------------
{PAGE}
This AUCTION MARKET PREFERRED STOCK PROCUREMENT AGREEMENT
(this "AGREEMENT") is dated as of February 7, 2002 and is
_____________
STANLEY WORKS, – PAGE}
This AUCTION MARKET PREFERRED STOCK PROCUREMENT AGREEMENT
(this "AGREEMENT") is dated as of February 7, 2002 and is by and between THE
STANLEY WORKS, a Connecticut corporation and BNP PARIBAS, a societe anonyme
organized and existing under the laws of The Republic of France ("INVESTOR").
W
_____________
Stanley Works – and existing under the laws of The Republic of France ("INVESTOR").
W I T N E S S E T H
WHEREAS, The Stanley Works is the owner of all 155,652 of the
outstanding shares of Common Stock, par value $0.01 per share, of Stanley
Logistics,
_____________
Stanley Works – Delaware corporation (the "COMPANY");
WHEREAS, pursuant to an Auction Market Preferred Stock
Subscription Agreement, dated February 4, 2002, between the Company and The
Stanley Works (the "SUBSCRIPTION AGREEMENT"), The Stanley Works has agreed
either to subscribe for, or to procure the purchase by another person or persons
_____________
Stanley Works – to an Auction Market Preferred Stock
Subscription Agreement, dated February 4, 2002, between the Company and The
Stanley Works (the "SUBSCRIPTION AGREEMENT"), The Stanley Works has agreed
either to subscribe for, or to procure the purchase by another person or persons
of, and the Company has agreed to
_____________
dt 221247
;
 LeBoeuf Lamb
As referenced in this Procurement Agreement:
LeBoeuf, Lamb – David S. Winakor,
Esq., Corporate Counsel of the Company and (B) a
legal opinion of LeBoeuf, Lamb , Greene & MacRae,
acting as special counsel to the Company, in the
form set forth
LeBoeuf, Lamb – S. Winakor,
Esq., Corporate Counsel of The Stanley Works and
(B) a legal opinion of LeBoeuf, Lamb , Greene &
MacRae, acting as special counsel to The Stanley
Works, in the form set
LeBoeuf, Lamb – Opinion of David S. Winakor, Esq.,
Corporate Counsel of the Company
and
Legal Opinion of LeBoeuf, Lamb , Greene & MacRae, LLP
Special Counsel to the Company
SEE TABS 11 AND 13
{PAGE}
LeBoeuf, Lamb – of David S. Winakor, Esq.,
Corporate Counsel of The Stanley Works
and
Legal Opinion of LeBoeuf, Lamb , Greene & MacRae, LLP
Special Counsel to The Stanley Works
SEE TABS 10 AND 12
{
dt 38052
;
|
Skadden
As referenced in this Procurement Agreement:
Skadden, – D-2.
(iv) the delivery on the Closing Date of (A) a
legal opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special
New York counsel to Investor, and (B) a
Skadden, – to The Stanley Works
SEE TABS 10 AND 12
{PAGE}
EXHIBIT E
---------
Legal Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
Special U.S. Counsel to Investor
and
Legal Opinion
dt 34202
;
BNP Paribas
|
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Procurement Agreement
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1396083
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Procurement Agreement [Amended and Restated]
Procurement Agreement [Amended and Restated] (127K)
Doc #144101: Click preview link for longer preview.
AMENDED AND RESTATED
PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
TELLIUM, INC.
-1-
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
{S} {C} {C}
1. DEFINITIONS ...............................................................4
2. SCOPE .....................................................................9
3. SUPPLIER OBLIGATIONS .....................................................11
4. QWEST OBLIGATIONS ........................................................12
5. GOVERNANCE ...............................................................12
6. PRICING ..................................................................13
7. ORDERING .................................................................13
8. DELIVERY AND SHIPMENT ....................................................14
9. PAYMENT TERMS ............................................................16
10. PRODUCT REQUIREMENTS .....................................................16
11. CHANGES IN THE WORK ......................................................18
12. (***) AND ACCEPTANCE .....................................................19
13. SOFTWARE .................................................................21
15. INFRINGEMENT WARRANTY AND INDEMNITY ......................................25
16. KNOW HOW AND NEW TECHNOLOGY ..............................................26
17. WARRANTY .................................................................26
18. GENERAL INDEMNITY ........................................................29
20. CONFIDENTIALITY ..........................................................30
21. TERMINATION, SURVIVAL ....................................................31
22. FORCE MAJEURE ............................................................33
23. JOINT WORK PRODUCT .......................................................33
24. ASSIGNMENT ...............................................................34
25. DISPUTES .................................................................34
26. RELATIONSHIP OF THE PARTIES ..............................................35
27. AMENDMENT ................................................................35
{/TABLE}
-2-
{PAGE}
{TABLE}
{CAPTION}
{S} {C} {C}
28. COMPLIANCE WITH LAWS .....................................................36
30. NO WAIVER ................................................................36
31. SEVERABILITY .............................................................37
32. COUNTERPARTS .............................................................37
33. CHOICE OF LAW ............................................................37
34. REMEDIES .................................................................37
35. IMMIGRATION REFORM AND CONTROL ACT .......................................37
36. IMPORT/EXPORT ............................................................38
37. PUBLICITY ................................................................38
38. NOTICES ..................................................................38
39. INSURANCE REQUIREMENTS ...................................................39
40. ORDER OF PRECEDENCE ......................................................40
41. ENTIRE AGREEMENT .........................................................40
SCHEDULE A ...................................................................43
APPROVED AFFILIATES ..........................................................43
SCHEDULE B - PURCHASE ORDER ..................................................44
SCHEDULE C - PRODUCT PRICE LIST ..............................................45
SCHEDULE E - TRAINING ........................................................50
SCHEDULE F - AURORA OPTICAL SWITCH RELEASE TEST PLAN .........................52
SCHEDULE G - TECHNICAL SUPPORT SERVICES ......................................53
SCHEDULE H - TELLIUM REPAIR AND RETURN POLICY ................................57
SCHEDULE I - SOFTWARE MAINTENANCE AGREEMENT ..................................58
SCHEDULE J - TELLIUM PRODUCT ROLL-OUT SCHEDULE ...............................59
{/TABLE}
-3-
{PAGE}
AMENDED AND RESTATED PROCUREMENT AGREEMENT
This amended and restated procurement agreement is made and entered into as
of December 14, 2001 (the "Effective Date") by and between Tellium,
Inc.("Supplier"), a Delaware corporation, with a place of business at 2 Crescent
Place, Oceanport, NJ 07757, and Qwest Communications Corporation, a Delaware
corporation, having its principal offices and place of business at 1801
California Street, Denver, Colorado 80202 ("Qwest") (Supplier and Qwest each
being referred to herein as a "Party" and collectively as the "Parties").
WHEREAS, the Parties entered into a Procurement Agreement as of September
1, 2000, and amended such Procurement Agreement in the First Amendment to the
Procurement Agreement on April 10, 2001 (together, the "Existing Agreement");
WHEREAS, prior to the Effective Date hereof and under the Existing
Agreement Qwest has purchased services, products and equipment of Supplier (the
"Existing Products") in exchange for which Qwest has paid and Supplier has
received a payment of (***);
WHEREAS, the Parties now desire to amend and restate the Existing Agreement
by this Agreement to, among other things, modify the purchase commitment of
Qwest in connection with the (cancellation) of certain warrants to acquire
shares of Supplier;
WHEREAS, the Parties intend that this Agreement, as defined below, is and
completely describes the sole and entire agreement between the Parties relating
to the subject matter hereof;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants hereinafter expressed, the Parties hereto agree as
follows:
1. DEFINITIONS
1.1 The terms used in this Agreement shall have their normal or common
meaning, except that in addition to terms defined at other places in
this Agreement, the following terms shall have the following meanings
for the purposes of this Agreement, the Schedules and any attachments
thereto:
(a) "Affiliate" means (i) any individual, corporation, partnership,
joint venture, limited liability company, limited liability
partnership, practice, association, joint stock company, trust,
unincorporated organization or other venture or business vehicle
(each an "Entity") in which a Party owns a (***) or greater
equity interest; (ii) any Entity which, directly or indirectly,
is in control of, is controlled by or is under common control
with a Party, as applicable, after applying the attribution rules
of Section 318 of the Internal Revenue Code; or (iii) any other
Entity agreed by the Parties. For the purposes of this Agreement,
control of an Entity ("Control") shall include the power,
directly or indirectly, whether or not exercised (i) to vote
(***) (or such lesser percentage as is the maximum allowed to be
owned by a foreign corporation in a particular jurisdiction) or
more of the securities or other interests having ordinary voting
power
-4-
{PAGE}
for the election of directors or other managing authority of such
Entity; or (ii) to direct or cause the direction of the
management or policies of such Entity, whether through ownership
of voting securities, partnership interest or equity, by contract
or otherwise. Schedule A (Approved Affiliates) contains the names
of Qwest Affiliates who have been approved as Approved Affiliates
as of the Effective Date.
(b) "Agreement" means this Amended and Restated Procurement
Agreement, the schedules listed in Section 2.5 and attached
hereto (the "Schedules"), and any Purchase Orders hereunder.
(c) "Class A Change" means a modification, revision, replacement,
correction or release of existing Supplier manufactured Product
(other than an ISU or an Enhancement) to remedy a nonconformance
to the Specifications required to correct design defects of a
type that results in electrical or mechanical inoperative
conditions or unsatisfactory operating conditions, or which is
recommended to enhance safety, provided that the Product
incorporating such change, is at least as equally compatible with
Qwest's network components and other Supplier Products as the
same Product prior to incorporation of such change.
(d) "Current Release" means the latest Version or Release of the
Software which has been approved by Supplier for commercial use.
(e) "Days" or "days" means calendar days, unless otherwise provided
herein.
(f) "Documentation" means the user, technical and operating manuals,
including the operating instructions, guides and manuals,
necessary to enable Qwest properly to use and maintain the
Products.
(g) "Effective Date" has the meaning set forth in the preamble
hereto.
(h) "Equipment" means any hardware, equipment, embedded software
(including firmware) and all physical components, including
cabling, available from or offered by Supplier.
(i) "Enhancement" means any modification or revision to the Software
that Qwest may license at its option when offered by the Supplier
in the future and which (i) substantially improves existing
functions or features, including functions and features for which
Qwest has already been granted a license, or (ii) adds new
functions or features.
(j) "Form, Fit or Function" shall have the following meaning. "Form"
means shape; "Fit" means physical size, weight and mounting
arrangement (e.g., electrical or mechanical connections); and
"Function" means features and capabilities.
(k) "Incremental Software Update" or "ISU" means any modification or
144101
|
Qwest
As referenced in this Procurement Agreement [Amended and Restated]:
Qwest Communications
International Inc – the
Commitment.
21.4 Change of Control. If, during the Term of this Agreement, a "Change of
Control" occurs with respect to either Qwest Communications
International Inc . ("QCII") or Supplier, either Party shall have the
right to terminate this Agreement or any part thereof upon (***)
written notice, and Qwest (
_____________
dt 277052
;
Qwest Communications Corporation;
| Tellium Inc
|
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Procurement Agreement
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PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
ADVANCED SWITCHING COMMUNICATIONS, INC.
- i -
{PAGE} 2
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
TABLE OF CONTENTS
{TABLE}
{S} {C}
1. DEFINITIONS........................................................................1
2. SCOPE............................................................................. 6
3. SUPPLIER OBLIGATIONS.............................................................. 8
4. QWEST OBLIGATIONS................................................................. 9
5. GOVERNANCE....................................................................... 10
6. PRICING.......................................................................... 11
7. ORDERING......................................................................... 11
8. DELIVERY AND SHIPMENT............................................................ 12
9. PAYMENT TERMS.................................................................... 14
10. PRODUCT REQUIREMENTS............................................................ 15
11. CHANGES IN THE WORK............................................................. 17
12. ACCEPTANCE PERIOD;ACCEPTANCE.....................................................18
13. SOFTWARE........................................................................ 20
14. (***)........................................................................... 25
15. INFRINGEMENT WARRANTY AND INDEMNITY............................................. 26
16. KNOW HOW AND NEW TECHNOLOGY......................................................27
17. WARRANTY........................................................................ 28
18. GENERAL INDEMNITY...............................................................30
19. LIMITATION OF LIABILITY......................................................... 31
20. CONFIDENTIALITY................................................................. 31
21. TERMINATION, SURVIVAL........................................................... 33
22. FORCE MAJEURE................................................................... 34
23. ASSIGNMENT...................................................................... 35
24. JOINT WORK PRODUCT.............................................................. 35
{/TABLE}
- ii -
{PAGE} 3
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
{TABLE}
{S} {C}
25. DISPUTES....................................................................... 35
26. RELATIONSHIP OF THE PARTIES..................................................... 36
27. AMENDMENT....................................................................... 37
28. COMPLIANCE WITH LAWS............................................................ 37
29. CONSTRUCTION/HEADINGS........................................................... 38
30. NO WAIVER....................................................................... 38
31. SEVERABILITY.................................................................... 38
32. COUNTERPARTS.................................................................... 38
33. CHOICE OF LAW................................................................... 38
34. REMEDIES........................................................................ 39
35. IMMIGRATION REFORM AND CONTROL ACT.............................................. 39
36. IMPORT/EXPORT....................................................................39
37. PUBLICITY........................................................................39
38. NOTICES......................................................................... 40
39. INSURANCE REQUIREMENTS.......................................................... 41
40. ORDER OF PRECEDENCE............................................................. 42
41. ENTIRE AGREEMENT...................................................................
{/TABLE}
- iii -
{PAGE} 4
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
THIS PAGE LEFT INTENTIONALLY BLANK
- iv -
{PAGE} 5
AGREEMENT
This procurement agreement is made and entered into by and between
Advanced Switching Communications, Inc. ("Supplier"), a Delaware corporation,
with a place of business at 8330 Boone Blvd., Fifth Floor, Vienna, VA 22182, and
Qwest Communications Corporation, a Delaware corporation, having its principal
offices and place of business at 555 Seventeenth Street, Suite 1000, Denver,
Colorado 80202 ("Qwest") (Supplier and Qwest each being referred to herein as a
"Party" and collectively as the "Parties").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants hereinafter expressed, the Parties hereto agree as
follows:
1. DEFINITIONS
1.1 The terms used in this Agreement shall have their normal or
common meaning, except that in addition to terms defined at other
places in this Agreement, the following terms shall have the
following meanings for the purposes of this Agreement, the
Schedules and any attachments thereto:
(a) "Acceptance" shall have the meaning given to it in
Section 12.2.
(b) "Acceptance Period" shall have the meaning set forth in
Section 12.1.
(c) (b)"Affiliate" means (i) any individual, corporation,
partnership, joint venture, limited liability company,
limited liability partnership, practice, association,
joint stock company, trust, unincorporated organization
or other venture or business vehicle (each an "Entity")
in which a Party owns a (***) or greater equity
interest; (ii) any Entity which, directly or indirectly,
is in control of, is controlled by or is under common
control with a Party, as applicable, after applying the
attribution rules of Section 318 of the Internal Revenue
Code; or (iii) any other Entity agreed by the Parties.
For the purposes of this Agreement, control of an Entity
("Control") shall include the power, directly or
indirectly, whether or not exercised (i) to vote (***)
(or such lesser percentage as is the maximum allowed to
be owned by a foreign corporation in a particular
jurisdiction) or more of the securities or other
interests having ordinary voting power for the election
of directors or other managing authority of such Entity;
or (ii) to direct or cause the direction of the
management or policies of such Entity, whether through
ownership of voting securities, partnership interest or
144109
| Qwest Communications Corporation;
| Advanced Switching Communications Inc.
|
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Procurement Agreement
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SECURITIES AND EXCHANGE COMMISSION.
PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
ADVANCED SWITCHING COMMUNICATIONS, INC.
- i -
<PAGE> 2
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH . . .
1386135
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Procurement Agreement
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Amendment No. 3
to
Procurement Agreement
This Amendment ("Amendment") is made and entered into effective this 9th day of
January, 2001, by and between WILLIAMS COMMUNICATIONS, LLC ("Williams") and
CORVIS CORPORATION ("Corvis").
-WITNESSETH-
WHEREAS, Williams and Corvis are parties to that certain Procurement Agreement
which is dated April 6, 2000, and which has been subsequently amended by
amendments dated May 3, . . .
1396126
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Procurement Agreement
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SECURITIES AND EXCHANGE COMMISSION.
PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
ADVANCED SWITCHING COMMUNICATIONS, INC.
- i -
<PAGE> 2
NOTE: REDACTED PORTIONS HAVE BEEN MARKED WITH (***). THE REDACTED PORTIONS ARE
SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT THAT HAS BEEN FILED WITH . . .
1412821
| | |
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Procurement Agreement
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Procurement Agreement
between
Qwest Communications Corporation
and
Tellium, Inc.
{PAGE}
TABLE OF CONTENTS
-ii-
{PAGE}
AGREEMENT
This procurement agreement is made and entered into by and between Tellium
("Supplier"), a Delaware corporation, with a place of business at 2 Crescent
Place, Oceanport, NJ 07757, and Qwest Communications Corporation, a Delaware
corporation, having its principal offices and place of business at 555
Seventeenth Street, Suite 1000, Denver, Colorado 80202 ("Qwest") (Supplier and
-----
Qwest each being referred to herein as a "Party" and collectively as the
-----
"Parties").
-------
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants hereinafter expressed, the Parties hereto agree as
follows:
1. DEFINITIONS
1.1 The terms used in this Agreement shall have their normal or common
meaning, except that in addition to terms defined at other places in
this Agreement, the following terms shall have the following meanings
for the purposes of this Agreement, the Schedules and any attachments
thereto:
(a) "Affiliate" means (i) any individual, corporation, partnership,
---------
joint venture, limited liability company, limited liability
partnership, practice, association, joint stock company, trust,
unincorporated organization or other venture or business vehicle
(each an "Entity") in which a Party owns a (***) or greater
------
equity interest; (ii) any Entity which, directly or indirectly,
is in control of, is controlled by or is under common control
with a Party, as applicable, after applying the attribution rules
of Section 318 of the Internal Revenue Code; or (iii) any other
Entity agreed by the Parties. For the purposes of this
Agreement, control of an Entity ("Control") shall include the
-------
power, directly or indirectly, whether or not exercised (i) to
vote (***) (or such lesser percentage as is the maximum allowed
to be owned by a foreign corporation in a particular
jurisdiction) or more of the securities or other interests having
ordinary voting power for the election of directors or other
managing authority of such Entity; or (ii) to direct or cause the
direction of the management or policies of such Entity, whether
through ownership of voting securities, partnership interest or
equity, by contract or otherwise. Within forty-five (45) days of
the Effective Date, the Parties will amend this Agreement by the
addition of Schedule A (Approved Affiliates) containing the names
of Qwest Affiliates who have been designated by Qwest and who
have met the credit standards referenced in Section 2.4 (the
"Approved Affiliates").
-1-
{PAGE}
(b) "Agreement" means this agreement including the schedules
---------
described in Section 2.5 and attached hereto (the "Schedules").
---------
(c) "Class A Change" means a modification, revision, replacement,
--------------
correction or release of existing Supplier manufactured Product
(other than an ISU or an Enhancement) to remedy a nonconformance
to the Specifications required to correct design defects of a
type that results in electrical or mechanical inoperative
conditions or unsatisfactory operating conditions, or which is
recommended to enhance safety, provided that the Product
incorporating such change, is at least as equally compatible with
Qwest's network components and other Supplier Products as the
same Product prior to incorporation of such change.
(d) "Current Release" means the latest Version or Release of the
---------------
Software which has been approved by Supplier for commercial use.
(e) "Days" or "days" means calendar days, unless otherwise provided
---- -----
herein.
(f) "Documentation" means the user, technical and operating manuals,
-------------
including the operating instructions, guides and manuals,
necessary to enable Qwest properly to use and maintain the
Products.
(g) "Effective Date" means September 1, 2000.
--------------
(h) "Equipment" means hardware, equipment, embedded software
---------
(including, without limitation, firmware) and all physical
components, including cabling, required by this Agreement to be
provided by Supplier.
(i) "Enhancement" means any modification or revision to the Software
-----------
that Qwest may license at its option when offered by the Supplier
in the future and which (i) substantially improves existing
functions or features, including functions and features for which
Qwest has already been granted a license, or (ii) adds new
functions or features.
(j) "Form, Fit or Function" shall have the following meaning. "Form"
---------------------
means shape; "Fit" means physical size or mounting arrangement
(e.g., electrical or mechanical connections); and "Function"
means features and capabilities.
(k) "Incremental Software Update" or "ISU" means any modification
--------------------------- ---
-2-
{PAGE}
or revision to the Software, other than Enhancements, that (i)
corrects Software Nonconformities or other errors; (ii) supports
new releases of third party operating systems with which the
Software is designed to operate; (iii) supports new Equipment;,
(iv) improves the performance of the Software; or (v) provides
other updates and corrections. If a modification or revision
described in clause (ii), (iii) or (iv) above adds new functions
or features or substantially improves the network performance, it
shall be deemed to be an Enhancement with respect to those new
functions and features.
(l) "Installation Site" means the building, complex of buildings or
-----------------
remote site at which any of the Products are installed.
(m) "Intellectual Property Rights" mean all forms of intellectual
----------------------------
property rights and protections including, without limitation:
(i) All right, title and interest in and to all letters patent
and all filed, pending or potential applications for
letters patent, including any reissue, reexamination,
division, continuation or continuation-in-part applications
throughout the world now or hereafter filed;
(ii) All right, title and interest in and to all trade secrets,
and all trade secret rights and equivalent rights arising
under the common law, state law, federal law and laws of
foreign countries;
(iii) All right, title and interest in and to all mask works,
copyrights, other literary property or author's rights,
whether or not protected by copyright or as a mask work,
arising under common law, state law, federal law and laws
of foreign countries; and
(iv) All right, title and interest in and to all proprietary
indicia, trademarks, trade names, service marks, symbols,
trade dress, logos and/or brand names protected under
common law, state law, federal law and laws of foreign
countries.
(n) "Network Compatible" or "Network Compatibility" with respect to a
------------------ ---------------------
Product means that (i) the Product will comply with the
applicable American National Standards Institute ("ANSI") and
----
International Standards Organization ("ISO") standards in effect
---
on the date that Qwest issues the Purchase Order, and any other
144122
| Qwest Communications Corporation;
| Tellium Inc.
|
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PROCUREMENT AGREEMENT
BETWEEN
BROADWING COMMUNICATIONS SERVICES INC.
AND
CORVIS CORPORATION
DATED March 17, 2000
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
Recital 1
Article 1 Laboratory System 1
Article 2 Transport Field Trial 2
Article 3 Reserved 4
Article 4 Volume Deployment; Quantities and Delivery Schedules 5
Article 5 Commercial Testing; Product Discontinuation 7
Article 6 Pricing, Invoicing, Payment and Other Financial Terms 8
Article 7 Term 9
Article 8 Documentation and Reports 9
Article 9 Delivery and Installation 9
Article 10 Force Majeure 10
Article 11 Training 10
Article 12 Software License 11
Article 13 Software Changes 13
Article 14 Product Changes 13
Article 15 Proprietary Information 15
Article 16 Warranties, and Warranty Exclusions and Limitations 16
Article 17 Representations and Other Warranties 18
Article 18 Remedies and Limitations 18
Article 19 Support and Other Services 20
Article 20 Insurance 20
Article 21 Indemnification 21
Article 22 Patents, Copyright and Trade Secrets 21
Article 23 Termination 22
Article 24 Dispute Resolution 23
Article 25 Notice and Representatives of the Parties 24
Article 26 General 25
Article 27 Incorporation of Documents 26
Article 28 Definitions 26
Article 29 Entire Agreement 29
{/TABLE}
{PAGE}
PROCUREMENT AGREEMENT
BETWEEN BROADWING COMMUNICATIONS SERVICES INC.
AND CORVIS CORPORATION
THIS PROCUREMENT AGREEMENT ("Agreement"), made effective as of this 17th
day of March, 2000 ("Effective Date"), by and between Broadwing Communications
Services Inc., a Delaware corporation, having its principal place of business
at 1122 Capital of Texas Highway South, Austin, Texas 78746-6426 (hereinafter
referred to as "Customer"), and Corvis Corporation, a Delaware corporation,
having its principal place of business at 7015 Albert Einstein Drive, Columbia,
MD 21046-9400 (hereinafter referred to as "Corvis").
A. Customer is a leading telecommunications service provider offering a
broad range of telecommunications services requiring ever-increasing
bandwidth.
B. Corvis is a manufacturer of next-generation optical network equipment
whose ultra-long transmission capacity and high channel count products
coupled with its optical router create substantially greater capacity
while simultaneously reducing the overall cost-per-bit to the lowest
levels in the industry.
C. Customer desires to deploy commercially, and Corvis desires to supply,
Corvis equipment and software in Customer's network contingent upon
such equipment and software performing in accordance with the
Transport Field Trial Test Criteria, as defined below.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
DEFINITIONS: Defined terms and definitions are set forth in Article 28 of this
Agreement.
ARTICLE 1. LABORATORY SYSTEM.
1.1 Equipment and Software. Corvis will sell to Customer, and Customer
will purchase, the Equipment and Software identified in Attachment 1 (the
"Laboratory System") for the prices set forth in such attachment.
1.2 Payment. Customer will pay Corvis an amount equal to the total cost of
the Laboratory System as specified in Attachment 1. Payment will be due
within thirty (30) days after the receipt of invoice. Corvis will invoice
Customer for the Laboratory System upon shipment to Customer.
1.3 Shipment of Laboratory System. Corvis will ship to Customer the
Laboratory System by the date for such delivery set forth in Attachment
1.3.
1.4 Payment for lab system will be returned (in the form of product
credits) once Customer has paid $50MM in Corvis invoices
144127
| Broadwing Communications Services Inc.;
| Corvis Corp.
|
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Procurement Agreement [Amended and Restated]
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AMENDED AND RESTATED
PROCUREMENT AGREEMENT
BETWEEN WILLIAMS COMMUNICATIONS INC.
AND CORVIS CORPORATION
THIS AMENDED AND RESTATED PROCUREMENT AGREEMENT ("Agreement"), dated this 23rd
day of June, 2000 ("Signature Date"), is made by and between Williams
Communications Inc., a Delaware corporation, having its principal place of
business at One Williams Center, Tulsa, Oklahoma 74172 (hereinafter referred to
as "Customer"), and Corvis Corporation, a Delaware corporation, having its
principal place of business at 7015 Albert Einstein Drive, Columbia, MD 21046-
9400 (hereinafter referred to as "Corvis").
A. Customer is a leading telecommunications service provider offering a
broad range of telecommunications services requiring ever-increasing
bandwidth.
B. Corvis is a manufacturer of next-generation optical network equipment.
C. Customer is currently testing Corvis products pursuant to a Laboratory
Trial System Agreement between Corvis and Customer dated February 3,
2000 (the "Laboratory Trial Agreement") and intends to conduct tests
pursuant to a Field Trial Agreement between Corvis and Customer
executed simultaneously herewith (the "Field Trial Agreement").
D. Customer desires to purchase, and Corvis desires to supply, Corvis
equipment and software for use in Customer's network and/or, subject
to the terms of this Agreement, for resale by Customer contingent upon
successful completion of the Field Trial (as such term is defined in
the Field Trial Agreement).
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE 1. LABORATORY SYSTEM.
1.1 Equipment and Software. Corvis has provided to Customer certain
Equipment and Software (the "Laboratory System") pursuant to the Laboratory
Trial Agreement at no charge.
1.2 Ownership and Return. Pursuant to the Laboratory Trial Agreement, the
Laboratory System will remain the sole and exclusive property of Corvis.
When and if Customer purchases $100 million in Products and Services
hereunder, title to the Corvis Equipment comprising the Laboratory System
will transfer to Customer. Upon successful completion of the Field Trial,
Corvis will automatically grant licenses to the software comprising the
Laboratory System on the terms and conditions under which Software is
licensed pursuant to this Agreement. If for any reason the Field Trial is
not successfully completed in accordance with the Field Trial Agreement,
the Laboratory System will be returned as provided in the Laboratory Trial
Agreement.
ARTICLE 2. FIELD TRIAL
1
{PAGE}
2.1 Equipment and Software. Corvis will provide to Customer certain
Equipment and Software (the "Field Trial System") pursuant to the Field
Trial Agreement.
2.2 Ownership and Return. Pursuant to the Field Trial Agreement, the Field
Trial System will remain the sole and exclusive property of Corvis.
Following successful completion of the Field Trial pursuant to the terms
and conditions of the Field Trial Agreement, Customer will pay Corvis the
purchase price for the Field Trial Equipment and license and services fees
for the Field Trial Software as set forth in the Field Trial Agreement (the
"Field Trial System Purchase Price") within thirty (30) days after the
successful completion of the Field Trial and pursuant to an invoice to be
submitted by Corvis as provided in the Field Trial Agreement. If the Field
Trial (i) is not successfully completed due to failure of the Field Trial
System to pass the tests contained in the Field Trial Test Plan within the
time specified in the Field Trial Agreement, then Customer or Corvis may
terminate this Agreement upon 30 days' written notice to the other, or;
(ii) is not successfully completed within the time period specified in the
Field Trial Agreement due to termination by Customer for cause under
Section 9 of the Field Trial Agreement, Customer may terminate this
Agreement upon 30 days' written notice to Corvisor; (iii) is not
successfully completed within the time period specified due to termination
of the Field Trial Agreement by Corvis for cause under Section 9 of the
Field Trial Agreement, Corvis may terminate this Agreement upon 30 days'
written notice to Customer. It is agreed that upon payment by Customer of
the Field Trial System Purchase Price, all Equipment and Software
comprising the Field Trial System shall be deemed to be items purchased
under this Agreement effective as of such payment date and will thereafter
be covered by and subject to all the terms and conditions hereof to the
same extent as if the Field Trial System had been purchased by Customer
under this Agreement.
ARTICLE 3. VOLUME PURCHASE; QUANTITIES AND DELIVERY SCHEDULES.
3.1 Initial Purchase Commitments. Following notice of successful
completion of the Field Trial, Customer will purchase for its own use or
for resale to others, subject to the terms and conditions of this
Agreement, from Corvis, during the Initial Term, Corvis Equipment, Software
and Services in quantities and in configurations priced at U.S.$200 million
("Total Minimum Purchase Commitment"), U.S. $100 million (the "Initial
Minimum Purchase Commitment") of which must be purchased within the Initial
Minimum Purchase Commitment Period based on the prices and license fees set
forth in Attachment 6. Amounts paid by Customer under the Field Trial
Agreement shall be deemed purchases that apply to the Initial Minimum
Purchase Commitment.
3.2 (a) Failure to Meet Initial Minimum Purchase Commitment. If, after
successful completion of the Field Trial, Customer fails to purchase a
total dollar value of Corvis Equipment, and Software and/or Services equal
to or exceeding U.S. $100 million within the Initial Minimum Purchase
Commitment Period, then Corvis may immediately invoice Customer for an
amount equal to twenty percent (20%) of the difference between the purchase
price and license fees for such Corvis Equipment, Software and/or Services
purchased by Customer during the Initial Minimum Purchase Commitment Period
and $100 Million (such difference being the "Initial Minimum Purchase
Commitment Shortfall") and Customer will pay such invoice within thirty
(30) days after receipt of invoice. If Customer submits Purchase Orders for
at least the amount of the Initial Minimum Purchase Commitment Shortfall
within such 30 day payment period and such Purchase Orders require delivery
of Corvis Equipment, Software and/or Services within three (3) calendar
months, Customer will receive, for application against such Purchase
Orders, a credit for the full amount of the payment made for the Initial
Minimum
144128
| Williams Communications Inc.;
| Corvis Corp.
|
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PROCUREMENT AGREEMENT
BETWEEN
QWEST COMMUNICATIONS CORPORATION
AND
CORVIS CORPORATION
DATED JUNE 5, 2000
{PAGE}
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
TABLE OF CONTENTS
{TABLE}
{S} {C}
RECITAL..................................................................... 1
ARTICLE 1. VOLUME DEPLOYMENT; QUANTITIES AND DELIVERY SCHEDULES............ 4
ARTICLE 2. QWEST TESTING; PRODUCT DISCONTINUATION.......................... 9
ARTICLE 3. PRICING, INVOICING, PAYMENT AND OTHER FINANCIAL TERMS........... 11
ARTICLE 4. TERM............................................................ 13
ARTICLE 5. DOCUMENTATION AND REPORTS....................................... 13
ARTICLE 6. DELIVERY AND INSTALLATION....................................... 13
ARTICLE 7. FORCE MAJEURE................................................... 16
ARTICLE 8. TRAINING........................................................ 17
ARTICLE 9. SOFTWARE LICENSE................................................ 17
ARTICLE 10. SOFTWARE CHANGES................................................ 20
ARTICLE 11. PRODUCT CHANGES................................................. 22
ARTICLE 12. PROPRIETARY INFORMATION......................................... 24
ARTICLE 13. WARRANTIES, AND WARRANTY EXCLUSIONS AND LIMITATIONS............. 26
ARTICLE 14. REPRESENTATIONS AND OTHER WARRANTIES............................ 28
ARTICLE 15. REMEDIES AND LIMITATIONS........................................ 29
ARTICLE 16. SUPPORT AND OTHER SERVICES...................................... 30
ARTICLE 17. INSURANCE....................................................... 31
ARTICLE 18. INDEMNIFICATION................................................. 32
ARTICLE 19. PATENT, COPYRIGHT AND TRADE SECRET.............................. 32
ARTICLE 20. TERMINATION..................................................... 34
ARTICLE 21. DISPUTE RESOLUTION.............................................. 35
ARTICLE 22. NOTICE AND REPRESENTATIVES OF THE PARTIES....................... 35
ARTICLE 23. GENERAL......................................................... 36
ARTICLE 24. INCORPORATION OF DOCUMENTS...................................... 39
ARTICLE 25. DEFINITIONS..................................................... 39
ARTICLE 26. ENTIRE AGREEMENT................................................ 43
{/TABLE}
{PAGE}
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
PROCUREMENT AGREEMENT
BETWEEN QWEST COMMUNICATIONS CORPORATION AND CORVIS CORPORATION
This procurement agreement for certain optical networking hardware and
software products, and the installation, integration and support of said
products is made and entered into by and between Corvis Corporation ("Corvis"),
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a Delaware corporation, with a place of business at 7015 Albert Einstein Drive,
Columbia, MD 21046-9400, and Qwest Communications Corporation, a Delaware
corporation, having its principal offices and place of business at 555
Seventeenth Street, Suite 1000, Denver, Colorado 80202 ("Qwest") (Corvis and
-----
Qwest each being referred to herein as a "Party" and collectively as the
-----
"Parties").
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants hereinafter expressed, the Parties hereto agree as
follows:
DEFINITIONS: Defined terms and definitions are set forth in Article 25 of this
Agreement.
ARTICLE 1. VOLUME DEPLOYMENT; QUANTITIES AND DELIVERY SCHEDULES.
1.1 Initial Deployment. Subject to the adjustments provided in Section 1.2,
Qwest will purchase from Corvis and deploy Corvis Equipment, Software and
Services in quantities and in configurations priced at U.S.$150,000,000 (the
"Minimum Deployment Commitment"), U.S. $50,000,000 of which (the "Initial
------------------------------ -------
Deployment Commitment") must be purchased within twelve (12) months after the
---------------------
Commencement Date (as defined below). in each case based on the prices and
license fees set forth in the Price List. For purposes of the preceding
sentence, Qwest will be deemed to have purchased a Product if Qwest has ordered
the Product for delivery no later than [*] after the applicable Deployment
Commitment period. [*] The term "Commencement Date" means the date that the
-----------------
Products meet the Technical Requirements described in Attachment 1.1, which
shall occur no later than the dates set forth therein and grace periods, if any.
1.2 Minimum Deployment Commitment Adjustments. The Minimum Deployment
Commitment and Initial Deployment Commitment shall be subject to adjustment to
the extent provided in, including the adjustments set forth below.
If one of the following events occur, the Minimum Deployment Commitment and the
Initial Deployment Commitment obligations hereunder shall terminate (i.e.,
resulting in a Minimum Deployment Commitment and an Initial Deployment
Commitment of zero dollars ($0.00)):
(i) the OC-192 Product has failed to meet any Technical Requirement
set forth in Attachment 1.1 or the expected test results set
forth in Attachment 1.2 in any material respect by the OC-192
Deadline Date (as defined below);
144137
| Qwest Communications Corporation;
| Corvis Corp.
|