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EXHIBIT 10.1
SUPPLY AGREEMENT
This Supply Agreement (this "Agreement") is made and entered into as of
November 26, 1996 by and between Lucent Technologies Inc., a Delaware
corporation (the "Company"), and Circo Craft Technologies, Inc., a Delaware
corporation (the "Supplier"). Any capitalized terms not defined herein shall
have the meaning ascribed to such terms in the GPA (as hereinafter defined). In
the event the terms and conditions of the GPA shown below conflict with the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall prevail.
1. TERM
This Agreement shall become effective on the date hereof and shall continue in
effect until December 31, 2001, and shall (i) extend until December 31, 2002
in the event that Supplier has in all material respects satisfied the
Performance Metrics through calendar year 1999, (ii) extend until December 31,
2003 in the event that Supplier has in all material respects satisfied the
Performance Metrics through calendar year 2000 and (iii) continue thereafter
until terminated by either party upon eighteen (18) months prior written notice
to the other party (the "Evergreen Provision").
2. EXISTING PRODUCTS
Existing products ("Existing Products") are identified by comcode numbers and
described in Attachment A, hereby attached and made part of this Agreement,
which attachment may be updated or modified as mutually agreed.
3. MATERIAL PURCHASE REQUIREMENTS
During the term of this Agreement, Company shall purchase and Supplier shall
sell Material to Company and any other customer designated in writing by
Company in accordance with the terms and conditions set forth in this Agreement
and the General Purchase Agreement number GA3703 ("GPA") dated as of the date
hereof by and between the Company and Supplier, which is hereby made a part of
this Agreement. The minimum annual volume of Material to be purchased and sold
pursuant to the terms of this Agreement shall be
(a) from January 1, 1997 to December 31, 1997, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION];
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(b) from January 1, 1998 to December 31, 1998, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION];
(c) from January 1, 1999 to December 31, 1999, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION];
(d) from January 1, 2000 to December 31, 2000, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION]; and
(e) from January 1, 2001 to December 31, 2001, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION].
In the event that pursuant to the clause entitled "TERM" the term of this
Agreement is extended beyond December 31, 2001, then in such case the annual
volume of Material to be purchased and sold pursuant to such extended term of
this Agreement shall be (to the extent extended):
(a) from January 1, 2002 to December 31, 2002, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION]; and
(b) from January 1, 2003 to December 31, 2003, [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
In the event that pursuant to the clause entitled "TERM" the term of this
Agreement has been extended pursuant to the Evergreen Provision for an
additional one year period (i.e. neither party has given notice to terminate
this Agreement on or prior to June 30, 2002 or on or prior to any June 30
thereafter), then in each such case (for any period after December 31, 2003)
six (6) months prior to the beginning of such additional one year period, the
parties should complete good faith negotiations of the terms and conditions
(including price, performance metrics, technology changes, etc...) For material
to be purchased and sold during such period. During the term of this
Agreement, the Company shall provide a good faith forecast (up to 104 weeks) of
the expected volume of purchased Material.
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
In the event that during the term of this Agreement the total dollar volume of
Material actually purchased by the Company, the Lucent Companies, or any other
Ordering Company, in any of the foregoing periods (each a "Period") is less
than the Annual Purchase
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Requirement (expressed in dollar volume) for such Period, for reasons not
attributable to Supplier (the difference is referred to herein as the
"Shortfall"), within thirty days after the end of such Period, the Company
shall provide to Supplier a written plan (the "Shortfall Cover Proposal")
detailing how the Company intends to compensate the Supplier for its failure to
achieve the Purchase Requirements for the previous Period. During the period
commencing upon receipt of the Shortfall Cover Proposal and terminating on the
80th calendar day after the end of such Period, the Supplier will undertake to
discuss with the Company its Shortfall Cover Proposal. In the event the
parties agree on a Shortfall Cover Proposal, such agreement shall be binding on
the parties and this Agreement will be deemed amended to reflect the terms
thereof. In the event the parties do not agree on a Shortfall Cover Proposal
(which the parties may elect not to do at their sole discretion) then in such
case on the 90th day after the end of such Period, the Company shall make a
cash payment to Supplier in an amount calculated by multiplying the applicable
gross margin percentage listed below by the Shortfall. If the Shortfall is
less than or equal to [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED
SEPARATELY WITH THE COMMISSION], the gross margin percentage shall equal
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]. If the Shortfall is greater than [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION] and less than or equal to
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION], the gross margin percentage on the incremental shortfall shall
equal [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]. If the Shortfall is greater than [CONFIDENTIAL PORTION HAS BEEN
SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION], the gross margin
percentage on the incremental shortfall shall equal [CONFIDENTIAL PORTION HAS
BEEN SO OMITTED AND FILED SEPARATELY WITH THE COMMISSION].
In the event that during the term of this Agreement the total dollar volume of
Material actually purchased by the Company, the Lucent Companies, or any other
Ordering Company, in any of the foregoing periods (each a "Period") is greater
than the Annual Purchase Requirement (expressed in dollar volume) for such
Period (the difference is referred to herein as the "Overage"), Supplier will
apply or credit [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY
WITH THE COMMISSION] of such Overage, up to but not exceeding the value of
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] of the following Period's Annual Purchase Requirement, to such
following Period's Annual Purchase Requirement.
4. SUPPLY AGREEMENT PERFORMANCE
4.1 The Supply Agreement Performance Metrics (the "Performance Metrics") for
cost, quality, and service are described in Attachment C, which is attached
hereto and made a part
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of this Agreement. The Performance Metrics may only be changed upon the mutual
written agreement of both parties. Supplier recognizes that the measurable
Performance Metric goals as described in Attachment C represents the Company's
current requirements. Supplier also recognizes that the measurable Performance
Metrics minimum standards represent less than preferred performance and agrees
to the consequences of not meeting the defined minimum standards as described
in the clause entitled "RESOLUTION PROCESS". The Performance Metrics may be
revised periodically by the parties mutual agreement in accordance with
Company's then stated performance requirements which demonstrate continuous
improvement.
4.2 The parties recognize that the Supplier may not be meeting all the
Performance Metrics minimum standards as of the date hereof. In such cases,
the Supplier will not be deemed to have failed to meet the Performance Metrics
but in such cases will submit to Company a measurable plan of action,
acceptable to Company, which will demonstrate how Supplier will, using its best
reasonable efforts, obtain the desired performance within a reasonable period
of time, which in no event shall be later than January 1, 1999, except for the
provisions found in the clause entitled "PRICE".
5. RESOLUTION PROCESS
In the event Supplier fails to meet any of the minimum standards set forth in
the Performance Metrics or otherwise specified in this Agreement, the Company
may give written notice to Supplier identifying in measurable detail the
Supplier's failure to meet one or more of the minimum standard obligations.
After receipt of such notice, the Supplier shall respond to the Company by
providing a plan of action according to the time periods indicated for the
Closed Loop Corrective Action Process as indicated in Attachment C. The
parties shall agree on a plan of action resulting from the Closed Loop
Corrective Action Process, including an implementation schedule for such plan.
Supplier agrees to implement such plan and provide status updates to the
Company as mutually agreed. Both parties agree to cooperate during the
implementation period. In the event that Supplier does not satisfy the terms
and conditions of such plan, after such implementation period, and Supplier's
failure to satisfy the terms and conditions of such plan is caused by or is a
result of Supplier's failure to supply a particular code of Material or a
series of codes of Material pursuant to the terms hereof, the Company may
purchase such code(s) from another source other than Supplier and reduce the
Purchase Requirements by the amount of such purchases of such code(s) from such
other source. In addition, Company may elect to continue to buy such code(s)
from the Supplier and reduce the Purchase
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Requirements by the amount of such purchases. All Resolution Process
communication shall be through the contacts specified in the clause "NOTICES".
6. [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
7. PRICE
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
8. PRICE REVISION
[CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
9. COST ANALYSIS
Whenever the Supplier requests a price increase or the Company terminates an
order, Company may request that Supplier furnish or make available data so that
Company can make a reasonable determination of the material cost components
and/or changes in cost components such as Supplier's direct labor, freight,
duties, raw materials and other agreed upon costs. Such request from Company
shall be in writing and shall set forth reasonable dates and formats for the
submission by Supplier. Company shall have reasonable access to Supplier's
premises during its normal business hours for verification of such data and
Supplier shall reasonably assist and cooperate with Company in the prompt and
orderly gathering of data.
10. COST REDUCTION
During the term of this Agreement, the parties may organize cross functional
teams to pursue and jointly develop improved manufacturing processes, product
designs and material formulations to achieve a reduction in manufacturing
costs. If significant cost reductions result from the work of such cross
functional teams, such cost reductions shall be shared by the Company and the
Supplier based on the agreement of the parties. Any cost reduction which
results from a capital expenditure incurred by Supplier will be reflected in
the price of Material only after Supplier has recovered the cost it incurred
for such capital expenditures. Implementation dates and expenses must be
mutually agreed upon. Supplier agrees to keep abreast of major developments in
Supplier's industry and to promptly advise Company of any developments which
might affect the Material price under this Agreement. Supplier shall advise
Company of such jointly developed cost reduction activities quarterly.
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11. QUOTE RIGHTS
During the term of this Agreement, Supplier may be designated as a preferred
supplier of Company as per Company's Interconnect Components Strategy, subject
to meeting or exceeding the performance criteria specified in this Agreement;
and as a preferred supplier, the Company shall use its reasonable best efforts
so that Supplier will be given the opportunity to quote on all of the Company's
and the Lucent Companies' requirements for Product for which Supplier has a
technical production capability and desire to produce. The term "Lucent
Companies" shall mean (i) any corporation, partnership or other entity of which
shares of stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by the Company (a "Subsidiary"); or (ii) any
individual, partnership, corporation, business trust, joint stock company,
trust, unincorporated association, joint venture, or other entity of whatever
nature (other than a Subsidiary) which, directly or indirectly, is in control
of, is controlled by, or is under common control with, the Company (an
"Affiliate"). For purposes of this definition, "control" of an Affiliate means
the power, directly or indirectly, either to (i) vote 51% or more of the
securities having ordinary voting power for the election of directors of such
Affiliate or (ii) direct or cause the direction of the management and policies
of such Affiliate, whether by contract or otherwise. Supplier acknowledges that
circumstances beyond the control of Company may exist from time to time which
require Company and/or the Lucent Companies to purchase Products without
providing Supplier the opportunity to quote on such Products. In each such
event, so long as Company shall have used its reasonable best efforts to avoid
such circumstances and otherwise acted in good faith with respect to such
purchases, Company shall not be in breach of the Agreement.
12. QUALITY
Supplier commits to ensure that all processes which contribute to the
development, production and services of Material remain ISO registered. If
Supplier fails to remain ISO registered, Company may elect to take the actions
described in the clause entitled "RESOLUTION PROCESS". Supplier's quality
management process will continue to be evaluated by the Company through
periodic on-site evaluations per the Company's established supplier development
programs; results of which will be under the conditions outlined in Attachment
C. Furthermore, Supplier will use its reasonable best efforts to attain and
maintain acceptable Material quality levels as described in Attachment C, which
contains measurable quality metrics goals and the consequences of Supplier not
meeting defined minimum standards. Material quality shall be measured in parts
per million defective (PPM) which will be derived from the monthly verified
defective material, average monthly material usage and product date codes.
Material which is date coded in excess of 180 days prior to
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usage will be exempt from the PPM determination. In addition, Supplier agrees
to maintain a formal closed loop corrective action program which acknowledges
Company quality issues, responds with a failure mode analysis identifying root
cause, implements corrective action and tracks effectiveness, all within the
goals and objectives as described in Attachment C.
13. UPSIDE FLEXIBILITY
Supplier will use its reasonable best efforts to satisfy Company's demand for
Product in excess of forecasted demand. As a minimum, as long as the Company's
aggregate demand set at the beginning of each calendar quarter has not
increased by more than ten percent (10%), Supplier agrees to provide all
Product demanded in excess of the forecasted demand at no extra charge,
provided, however, in no event shall Supplier be required to deliver product
within lead time at no extra charge where the demand for such product has in
any 52 week period exceeded forecast by more than 30%. However, the Supplier
will satisfy demand at less than lead time at no additional cost if Material or
capacity are available without disruption of normal manufacturing flow.
Supplier shall notify Company in writing within ten days of Company's request
if it does not intend to meet all required increases. If Supplier elects not
to meet the ten percent (10%) increased requirements, Company may at its
option, (A) purchase such codes or equivalent volume of business from another
source other than Supplier and, (B) if such failure has a material adverse
effect on the Company's commitment to its customers and less than 90% of
Supplier's capacity at its Richmond facility is being utilized for the
manufacture of Material sold to the Company, reduce the Purchase Requirements
by the amount of such purchases.
14. DELIVERY PERFORMANCE
In the event Supplier exceeds the agreed upon delivery date as specified in a
Contract or Order issued hereunder by more than five (5) business days of the
established lead time, and such failure has a material adverse effect on the
Company's commitment to its customers (which will be verified by the Contract
Administrator and substantiated by the Supplier), then in such a case, Company
shall have the right to expedite the actions described in the clause entitled
"RESOLUTION PROCESS".
15. LATE DELIVERY / LIQUIDATED DAMAGES AND CANCELLATIONS
Supplier acknowledges that its failure to deliver fully conforming Material
within the time specified in this Agreement or in any Order placed pursuant to
this Agreement may cause serious damage to Company. The parties shall on a
case by case basis negotiate in good
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faith to reach an agreement on Supplier's willingness to compensate the Company
for part or all of the verifiable damages caused by Supplier's late delivery of
Product.
16. AUDIT
Supplier shall maintain accurate and complete records including a physical
inventory, if applicable, of all costs incurred under this Agreement which may
affect (a) revision of prices under this Agreement or (b) termination charges
payable by Company under this Agreement. These records shall be maintained in
accordance with recognized commercial accounting practices so they may be
reviewed and verified by the Company whenever (i) the Supplier requests a
price increase or (ii) the Company is required to pay termination costs and
shall be held until costs have been finally determined under this Agreement and
payment or final adjustment of payment, as the case may be, has been made.
17. DEFAULT
17.1 In the event of a material breach of this Agreement (other than those for
which the clause entitled "RESOLUTION PROCESS" will be utilized), the
non-defaulting party may provide written notice to the defaulting party
specifying such default. Upon receipt of such notice, the parties shall
promptly meet and jointly develop, in good faith, an action plan setting forth
the steps to be implemented to enable the defaulting party to cure the default
and prospectively comply with the terms and conditions of this Agreement, which
plan will include the time period for implementation of such steps (the "Action
Plan"). Supplier and Company shall agree to implement such Action Plan within
the time period so specified. If the defaulting party does not comply with the
terms of the Action Plan, the non-defaulting party may, in addition to any
other rights and remedies it may have, at law or at equity, unless such default
is cured within ten days of such party's failure to comply with the Action
Plan, either, at its election, (a) terminate this Agreement or (b) if the
material breach of this Agreement is caused by or is a result of Supplier's
failure to supply certain Products pursuant to the terms hereof, cancel the
order and/or eliminate such Products from the Company's Purchase Requirements
and Seller's supply requirements hereunder.
17.2 In the event of a non-material breach of this Agreement (other than those
for which the clause entitled "RESOLUTION PROCESS" will be utilized), the
non-defaulting party may provide written notice to the defaulting party
specifying such default. Upon receipt of such notice, the parties shall
promptly meet and jointly develop, in good faith, an Action Plan. Supplier and
the Company shall agree to implement such Action Plan within the time period so
specified. If the defaulting party does not comply with the terms of the
Action Plan, the non-defaulting party may, in addition to any other rights and
remedies it may have, at law or
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at equity, unless such default is cured within ten (10) days of such party's
failure to comply with the Action Plan, if the non-material breach of this
Agreement is caused by or is a result of Supplier's failure to supply certain
Products (as opposed to all of the Products) pursuant to the terms hereof,
cancel the order and/or eliminate such Products from the Company's Purchase
Requirements and Seller's supply requirements hereunder.
17.3 Upon the termination of this Agreement by either party pursuant to Clause
17.1, all undisputed amounts owing to either party under this Agreement
(other than amounts owing with respect to shipped Product which will be payable
as provided in the Clause "PAYMENT TERMS") shall become due and payable as
promptly as reasonably practicable after the date of such termination.
17.4 Notwithstanding any other term of this Agreement, if as a result of any
malfunction of the equipment of Supplier that would constitute a breach of a
representation of Company under Section 4.1.14 of the Acquisition Agreement
dated as of the date hereof between Supplier and the Company, Supplier is
unable to meet its supply obligations hereunder, Supplier shall at its own
expense exercise commercially reasonable efforts to repair such malfunction
promptly but such failure shall not constitute a default by Supplier under this
Agreement.
18. EMERGENCY BACKUP PLAN
On or before March 31, 1997, Supplier will furnish to Company for Company's
approval, a written plan of action (an "Emergency Backup Plan") that covers
Supplier's plans on how it will continue to perform its obligations under this
Agreement in case of an unforeseen catastrophe, including a force majeure
condition, or any other condition in which Supplier will be unable to produce
and ship Material for four (4) consecutive weeks. The Emergency Backup Plan
will identify Supplier's secondary manufacturing location(s), if any, and
include the estimated time for the implementation of such Emergency Backup Plan
and production of Material.
The Emergency Backup Plan shall provide, among other things, that in the event
of any unforeseen catastrophe, including a force majeure condition, or any
other condition in which Supplier will be unable to produce and ship acceptable
Material for four (4) consecutive weeks, Supplier shall use its reasonable best
efforts to (a) manufacture and ship the Material from one or more of its other
manufacturing facilities approved by Company, which approval cannot be
unreasonably withheld or delayed, if any, to meet Company's requirements for
Material; (b) commence shipments of Material to Company from such other owned
or secondary manufacturing facilities approved by Company, which approval
cannot be
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unreasonably withheld or delayed, no later than ninety (90) days after the
commencement of the unforeseen catastrophe or other condition; and (c) achieve
the following levels of shipments from its secondary manufacturing facilities:
(i) a minimum of forty (40) percent of Company's then current forecast after
ninety (90) days of the commencement of the unforeseen catastrophe or any other
condition; (ii) a minimum of sixty (60) percent of Company's then current
forecast after one hundred and twenty (120) days of the commencement of the
unforeseen catastrophe or any other condition; and (iii) one hundred (100)
percent of Company's then current forecast after one hundred and eighty days
(180) days from the commencement of the unforeseen catastrophe or any other
condition.
19. INTELLECTUAL PROPERTY
19.1 Subject to Section 19.2, 19.3 and 19.4 any and all technology, know-how,
technology information, analyses, procedures, teachings, methods, data,
designs, trade secrets, processes, formulas, concepts, proposals, improvements
and inventions, whether or not patentable or subject to copyrights, or any
other proprietary information or rights regardless of the form in which it is
embodied arising out of either party's performance or activities hereunder
shall be the sole and exclusive property of such party.
19.2 [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
19.3 [CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
19.4 In the event that the Company desires to engage the Supplier to perform
at the Company's cost (in whole or in part) specific development or design work
not covered in subsection 19.2 and 19.3 above and in connection with this
Agreement ("Development Work"), then the Company and Supplier will enter into
in each such case a joint development agreement whereby the parties will agree
upon (i) the ownership of any intellectual property rights ("Jointly Developed
Intellectual Property Rights"), including inventions, patents, original works
of authorship, trade secrets, discoveries or improvements that arise out of
such Development Work; (ii) which party is responsible for filing, prosecuting
and maintaining patent, patent applications, copyrights, copyright
applications, trademarks and/or trademark applications with respect to such
Jointly Developed Intellectual Property Rights; (iii) the terms upon which such
Jointly Developed Intellectual Property Rights may be licensed to other
parties; (iv) any limitation on the use of such Jointly Developed Intellectual
Property Rights by the parties and their affiliates and (v) the parties
confidentiality obligations with respect to such Jointly Developed Intellectual
Property Rights .
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20. DISCONTINUED AVAILABILITY
20.1 Supplier shall provide Company at least one (1) year prior written notice
that any Material covered by this Agreement is recommended as a candidate to be
"Discontinued Availability" by Supplier. Company shall, within sixty (60) days
after receipt of Supplier's written notice, provide Supplier a written response
indicating Company's approval or disapproval of the Discontinued Availability
status of such Material based on such Material's impact on the Company's
business, including but not limited to the Company's obligations to its
customers.
If Company does not approve of the Material being Discontinued Availability,
the parties shall agree to establish a date in which the subject Material will
be reviewed again for consideration for being Discontinued Availability. In
such interim period, if appropriate, the parties shall negotiate in good faith
revised pricing and lead times for subject Material to cover reasonable costs
associated with extending the manufacture availability of such Material.
If the parties agree that Material shall become Discontinued Availability,
Supplier shall accept Company's orders for such Discontinued Availability
Material under the terms and conditions of this Agreement for one (1) year, or
as mutually agreed upon, from the Supplier's notification date of Discontinued
Availability status. Supplier shall provide to Company, at no charge all
Design Files and tooling including, but not limited to, a "golden board" (if
available) and artwork and license to the Company any technology (on an
nonexclusive basis) needed to manufacture or have manufactured solely for the
Company such Discontinued Availability Material . Once the Discontinued
Availability Material is no longer available to order by Company, Supplier
agrees to reduce Company's Purchase Requirements to Supplier, by the dollar
amount equal to the amount of such Discontinued Available Material purchased by
the Company in the twelve (12) month period prior to the giving of notice by
the Supplier.
20.2 AVAILABILITY: During the term of this Agreement, future shifts in the
technology required to manufacture printed circuit boards, backplane assemblies
and other associated material to be used in the Company's products may occur.
Company will use its reasonable best efforts to notify Supplier in advance of
any such technology changes to provide Supplier the opportunity to develop or
acquire such technology. To the extent such new technology is proprietary to
the Company, the parties will mutually agree upon a technology transfer
agreement whereby the Company will transfer such technology to Supplier.
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21. NONEXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement neither grants to
Supplier an exclusive right or privilege to manufacture for Company any or all
Material of the type described in this Agreement, nor requires the purchase of
any manufactured Material from Supplier by Company other than as set forth in
the clause entitled "MATERIAL PURCHASE REQUIREMENTS". It is, therefore,
understood that Company may contract with other manufacturers and suppliers for
the manufacture of Material and other Products subject to the provisions of
clauses entitled "MATERIAL PURCHASE REQUIREMENTS" and "QUOTE RIGHTS."
22. NOTICES
Any notice or demand which under the terms of this Agreement or under any
statute must or may be given or made by Supplier or Company shall be in writing
and shall be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer (confirmed in writing by mail
simultaneously dispatched) or one business day after having been dispatched by
a nationally recognized courier service to the appropriate party at the address
specified below.
To Company: Lucent Technologies Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Circo Craft Technologies, Inc. Contract
Administrator Facsimile Number: (000) 000-0000
To Supplier: Circo Craft Technologies, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Circo Craft Technologies, Inc.
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
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The above addresses may be changed at any time by giving prior written notice
as above provided.
23. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render
unenforceable the entire Agreement, but rather the entire Agreement shall be
construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of Supplier and Company
shall be construed and enforced accordingly.
24. TITLE TO PARTS FURNISHED BY COMPANY
All parts furnished by Company shall remain Company's property and be kept
segregated and marked "PROPERTY OF LUCENT TECHNOLOGIES INC." Supplier agrees
to be responsible for any loss or damage to such parts while in Supplier's
possession or under Supplier's control. Company may inspect, inventory, and
authenticate the amount of parts that are furnished under this Agreement during
Supplier's normal business hours so long as such activities do not unreasonably
interfere with Supplier business. Supplier shall provide Company reasonable
access to the premises wherein all such parts are located. Supplier shall at
Company's option and expense, return to Company or hold for Company's
disposition any and all of such parts and any scrap produced remaining in
Supplier's possession upon termination of this Agreement.
Supplier will not assert or file any common law or statutory lien against parts
furnished by Company, and hereby waives any such common law and statutory
liens. Supplier shall, within ten (10) days of receipt of Company's parts,
notify Company in writing of any claims for quantity variation in the parts
furnished to Supplier.
Supplier shall store Company parts in protected areas approved by Company. In
case of removal from one building to another, Supplier's responsibility for
loss or damage shall continue and Supplier shall give Company advance notice in
writing of the removal, except when the removal is required during Supplier's
manufacturing process.
Supplier shall list parts furnished by Company on all documents covering
manufactured and/or repaired Material shipped from Supplier to Company.
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25. COMPANY'S ON-SITE ENGINEER
During the term of this Agreement, Company shall be allowed to assign a
permanent full time on-site engineer to Supplier's facility, subject to such
engineer signing a nondisclosure agreement and agreeing to be subject to all of
the work rules and regulations at such facility. Supplier agrees to provide
such engineer with adequate working space, including, but not limited to heat,
light, ventilation, electric current, desk, chair, storage/file space,
telephone, and access to other normal office equipment (such heat, light,
electric and phone will be provided at reasonable rates). Such on-site
engineer will perform product quality audits, track critical quality issues,
and maintain visibility to all conditions (problems and changes) that may
impact Company's Material. The on-site engineer's primary job functions will
require, but are not limited to:
(1) non-voting membership on Supplier's Manufacturing Change Control
Committee, (the on-site engineer will be allowed to participate on
the committee to determine if Company's approval is required in any
process change issues, and shall be authorized by Company to provide
written approval/disapproval of such changes as per the clause
entitled "PRODUCT/SPECIFICATION/PROCESS CHANGES" in order to expedite
Company's response time to such issues); (2) access to process control
and quality data effecting Company's Material; (3) reasonable access
to Supplier's process control lab; and (4) Access to all areas where
Company's products are manufactured.
26. SUPPLIER'S BADGED ENGINEERS
During the term of this Agreement, the Supplier will designate an account
manager and a field application engineer for each applicable technical and
manufacturing facility of the Company and the Company will, subject to the
rules and regulations of such facility, provide such designees a resident
visitors badge (or any future equivalent) for such facilities, subject to such
person signing a nondisclosure agreement and agreeing to be subject to all of
the work rules and regulations of such facilities. To the extend available,
the Company may provide such account manager and/or field application engineer
use of office space in such facilities (such office space will be provided at
reasonable rates).
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CIRCO CRAFT TECHNOLOGIES, INC. LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------- ---------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
-------------------------- ---------------------------------
Title: Sr.V.P. and CFO Title: Global Purchasing Vice President
-------------------------- ---------------------------------
Date: Date:
-------------------------- ---------------------------------
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