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EXHIBIT 10.18
NEW FOCUS PACIFIC CO., LTD.
AND
FUZHOU CONET COMMUNICATION, INC.
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SUPPLY CONTRACT
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* Certain information on this page has been omitted and
filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted
portions.
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TABLE OF CONTENTS
ARTICLE PAGE
----
PRELIMINARY STATEMENT................................................................... 1
ARTICLE 1 - DEFINITIONS AND INTERPRETATION........................................ 1
ARTICLE 2 - TERM.................................................................. 2
ARTICLE 3 - SUPPLY OF PRODUCTS.................................................... 3
ARTICLE 4 - PRICING AND PAYMENTS.................................................. 4
ARTICLE 5 - DELIVERY AND TITLE.................................................... 6
ARTICLE 6 - SUPERVISION AND QUALITY CONTROL....................................... 7
ARTICLE 7 - REPRESENTATIONS, WARRANTIES AND BREACH................................ 7
ARTICLE 8 - INVESTIGATION RIGHT AND RIGHT OF SET-OFF.............................. 8
ARTICLE 9 - NF COMMITMENTS........................................................ 9
ARTICLE 10 - TERMINATION........................................................... 9
ARTICLE 11 - FORCE MAJEURE......................................................... 10
ARTICLE 12 - SETTLEMENT OF DISPUTES................................................ 10
ARTICLE 13 - BREACH OF CONTRACT.................................................... 11
ARTICLE 14 - GENERAL PROVISIONS.................................................... 12
SIGNATURES ......................................................................
ANNEX
1 PRODUCTS TO BE SUPPLIED
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SUPPLY CONTRACT
THIS CONTRACT is made in Fuzhou Municipality, People's Republic of China, on
this 11th day of May, 2000 by and between:
(1) NEW FOCUS PACIFIC CO., LTD., a wholly foreign-owned enterprise
registered in the People's Republic of China ("PRC") with its registered
address at Xxxxxxxx X0-X, Xxxx X, 0xx Xxxxx, Xxxxxxxx High-Tech
Industrial Park, Nanshan District, Shenzhen, PRC (hereinafter referred
to as the "NF"); and
(2) FUZHOU CONET COMMUNICATION, INC., a Chinese-foreign joint venture
company duly organized and existing under the laws of the People's
Republic of China, with its legal address at Xx. 00 Xxxxxx Xxxxxx,
Xxxxxx Fuxing Investment Zone, Jingan District, Fuzhou Municipality,
People's Republic of China (hereinafter referred to as the "SUPPLIER").
Supplier and NF are hereinafter also individually referred to as a "PARTY" and
collectively as the "PARTIES".
PRELIMINARY STATEMENT
WHEREAS, Supplier, New Focus, Inc. ("NFUS"), among others, entered into a Letter
of Intent dated 14 January 2000 ("LOI"), under which US$1 million ("SUCH
PAYMENT") has been paid by NF to Supplier.
WHEREAS, Supplier and NF wish to enter into a supply contract for Supplier to
supply certain products to NF and NF Affiliates (as defined later).
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
1.1 Definitions
Unless the terms or context of this Contract otherwise provide, the
terms used herein shall have the meanings set forth below:
"ACCEPTED THIRD PARTY PURCHASES" means the Third Party purchases as
accepted by Supplier in accordance with Article 3.4 hereof.
"ADVANCED PAYMENT" means RMB29 million to be paid by NF to Supplier
pursuant to Article 4.3 hereof.
"CHINA" or "PRC" means the People's Republic of China.
"COMMENCEMENT DATE" means 1 June 2000.
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"EFFECTIVE DATE" means the date of execution of this Contract by the
Parties.
"MINIMUM PURCHASE AMOUNTS" means the amounts / quantities of Products
that NF commits to purchase from Supplier pursuant to Article 9 hereof.
"NF AFFILIATE" means any company which, directly or indirectly, is
controlled by, under common control with, or in control of, NF, the term
"control" meaning ownership of more than fifty percent of the voting
stock or registered capital, or the power to appoint or elect a majority
of the directors, or the power to direct the management, of a company.
"NF DELAWARE" means New Focus Inc., a company duly incorporated and
existing under the laws of the State of Delaware, U.S.A. with its
registered address at 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxxxx
00000, County of New Castle, U.S.A.
"SAFE" means the State Administration of Foreign Exchange, Fuzhou
branch.
"TERM" means the period for the supply of the Products under this
Contract which shall begin on the Commencement Date and shall have a
duration of three (3) years therefrom.
"THIRD PARTY" means any other party or entity other than the Parties, NF
Affiliates and NF Delaware.
"USA" means the United States of America.
1.2 Interpretation
Articles and headings in this Contract are inserted for the purposes of
convenience and reference only and shall not affect the interpretation
or construction of this Contract.
ARTICLE 2 - TERM
2.1 Term
This Contract shall become effective upon the Effective Date. The period
of the supply of the Products shall commence on the Commencement Date
and shall continue in force for three (3) years from the Commencement
Date (i.e. the Term), unless otherwise agreed to in writing by the
Parties. The Term may be extended upon agreement in writing by the
Parties.
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ARTICLE 3 - SUPPLY OF PRODUCTS
3.1 Supply
During the Term, Supplier shall supply to NF and NF Affiliates the
products which are listed in Annex 1 hereto (the "PRODUCTS") in
accordance with the terms of this Contract.
3.2 Annual Budget
Prior to 1 November preceding each calendar year during the Term, NF
shall provide Supplier with an annual budget ("ANNUAL BUDGET") of its
requirements of Products for that calendar year in the form to be agreed
by the Parties. This Annual Budget shall represent a reasonable estimate
on NF's part as to NF's and NF Affiliates' requirements for the Products
for that calendar year. NF shall make certain commitments to Supplier
with respect to the Annual Budget in accordance with Article 9 hereof.
Notwithstanding this Article 3.2, the Parties acknowledge that NF shall
provide Supplier a half year budget for the last half of Year 2000 and
the Quarterly Budget for the third quarter of Year 0000 xxx month prior
to the commencement of the Term.
3.3 Quarterly Budget
NF shall provide Supplier four weeks before each quarter of a calendar
year a budget for NF and NF Affiliates' requirements for the Products
for such quarter ("QUARTERLY BUDGET") and a projected forecast for NF's
(and NF Affiliates') requirements for the Products for the quarter
immediately following such quarter (for the avoidance of doubt, such
projected forecast when given shall not alter or amend each Party's
obligations under this Contract with respect to the Annual Budget and
the Quarterly Budgets). NF undertakes to Supplier that it and NF
Affiliates shall place orders with Supplier for the full amount of
Products as stated in such Quarterly Budgets. Supplier undertakes with
NF that it shall supply NF (or NF Affiliates, as the case may be) the
Products based on orders placed by NF or (NF Affiliates) at least for
the amount of products that Supplier can reasonably be expected to
produce with:
[ *** ] DJL-400 or equivalent furnaces on or before 31 December 2000;
[ *** ] DJL-400 or equivalent furnaces on or before 31 March 2001;
[ *** ] DJL-400 or equivalent furnaces on or before 30 June 2001;
[ *** ] DJL-400 or equivalent furnaces after 30 June 2001.
Provided that:
(i) the amount of Products stated in the Quarterly Budget for the
first (1st) quarter of each calendar year during the Term shall
not be in excess of 120% of that amount stated in the Quarterly
Budget for the fourth (4th) quarter of the preceding Calendar
year, unless otherwise agreed by the Parties; and
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(ii) the total amounts of the Products stated in the Quarterly Budget
shall not exceed that stated in the relevant quarter of the
applicable Annual Budget, unless otherwise agreed by the
Parties.
3.4 Third Party Purchases
Supplier further undertakes to NF that Supplier shall not sell any
products to a Third Party or otherwise enter into any contract /
agreement that would commit any of Supplier's production capacity unless
the following conditions are met in full:
(a) Supplier's sale of the relevant products shall be concluded
within six (6) months from the date the purchase order of such
products is placed with Supplier;
(b) The provision to, the acceptance of purchase orders from, or the
manufacture on behalf of a Third Party by Supplier of any
products, or the entering into of any contract or agreement by
Supplier committing any of Supplier's production capacity would
not cause any problem or delay in respect of Supplier's
undertaking with NF to supply NF (or NF Affiliates, as the case
may be) the amount of Products as specified in Article 3.3
hereof.
Sales made by Supplier to a Third Party in accordance with Article 3.4
shall be referred to in this Contract as an "ACCEPTED THIRD PARTY
PURCHASE".
3.5 Purchase Order
Purchase of the Products by NF and NF Affiliates shall be based on
binding purchase orders made by NF and NF Affiliates to Supplier. The
terms of the purchase orders shall incorporate the terms of sale as
stated in this Contract (where appropriate) and shall not be
inconsistent therewith.
3.6 No Resale
Products purchased by NF and NF Affiliates from Conet cannot be resold
to Third Parties in its original form.
ARTICLE 4 - PRICING AND PAYMENTS
4.1 Prices
The prices of the Products that are sold by Supplier to NF shall be
quoted on an FOB basis and shall be negotiated by the Parties for each
Quarterly Budget based on the then prevailing market price and on a
most-preferred customer basis, provided however that the prices for the
Products shall be lower than those quoted / offered by NF's current
supplier(s) for the same Products under similar terms. Supplier
undertakes with NF that the prices of the Products supplied to NF (and
NF Affiliates) shall be the most favorable among all its sales
(including sales to Third Parties) of the Products for the relevant
period of supply.
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4.2 Payments
(a) NF (or NF Affiliates, as the case may be) shall pay Supplier the
purchase sum for the Products in relation to a particular
purchase order within thirty (30) days after the invoice date
for the relevant Products, provided that the invoice date shall
not be earlier than the date of shipping of the Products by
Supplier.
(b) All payments to Supplier for export of the Products by Supplier
or sales to a bonded zone company in accordance with this
Contract shall be made in United States Dollars or in another
foreign currency (e.g. Hong Kong dollars). All payments to
Supplier for domestic sales in PRC shall be in Renminbi.
4.3 Advanced Payment
(a) NF shall make an advance payment in the amount of RMB29 million
(i.e. the Advanced Payment) to Supplier and Supplier shall repay
Such Payment to NFUS in accordance with the following:
(i) NF shall remit RMB12.4 million within twenty-one (21)
days after the signing of this Contract to Supplier's
following account:
Account Name:
Account Number:
Name and address of Bank:
(ii) Supplier undertakes with NF to repay the full amount of
Such Payment in US Dollars to NFUS within thirty (30)
days after Supplier's receipt of the money referred to
in Article 4.3(a)(i) hereof.
(iii) NF shall remit RMB8.3 million to Supplier's bank account
as set out in Article 4.3(a)(i) within seven (7) days
after NFUS receives the full payment of Such Payment by
Supplier.
(iv) NF shall remit RMB8.3 million within ninety (90) days
after NFUS receives the full payment of Such Payment by
Supplier to Supplier's bank account as set out in
Article 4.3(a)(i) hereof.
Supplier shall repay NF the Advanced Payment in instalments in
accordance with the following schedules:
Monthly
Repayment Total
Date (in Renminbi) Duration (in Renminbi)
---- ------------- -------- -------------
30 November 2000 to 31 May 2001 500,000 6 months 3,000,000
1 June 2001 to 30 November 2001 700,000 6 months 4,200,000
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1 December 2001 to 31 May 2002 900,000 6 months 5,400,000
1 June 2002 to 30 November 2002 1,200,000 6 months 7,200,000
1 December 2002 to 30 April 2003 1,500,000 5 months 7,500,000
1 May 2003 to 31 May 2003 1,700,000 1 month 1,700,000
Total: 29,000,000
==========
(b) If Supplier fails to repay NF any or all of the Advanced Payment
in accordance with the Schedule set out in 4.3(a) above, NF
shall have the right to credit any part or all of such due and
outstanding portion of the Advanced Payment against NF or NF
Affiliates' payments due in relation to purchase orders placed
by NF or NF Affiliates during the Term in accordance with the
provisions of this Contract. If Supplier is not able to meet its
supply obligations under this Contract (particularly Articles 3,
4 and 5 hereof), such failure by Supplier shall constitute a
breach of this Contract and NF shall have the right to the
repayment by Supplier of the Advanced Payment on 1 December
2001, in addition to other remedies which NF may have under law
in relation to such breach.
If Supplier fails to meet any of its repayment obligations hereunder,
interest on the default amount due from Supplier to NF shall accrue from
the date of default at the rate of 2% above the Renminbi lending rate
for working capital loan to companies as announced by Bank of China
Fuzhou Branch from time to time until such time the default amount and
the accrued interest are repaid in full.
ARTICLE 5 - DELIVERY AND TITLE
5.1 Delivery
Delivery of the Products shall be made by Supplier to NF's (or NF
Affiliate's, as the case may be) premises or such other location as may
be specified by NF (or NF Affiliates, as the case may be) from time to
time. NF shall bear the reasonable costs associated with such delivery
after the Products leave Supplier's factory premises.
5.2 Title
Title and the risk of loss or damage to the Products shall pass from
Supplier to NF (or NF Affiliates, as the case may be) when the Products
leave Supplier's factory.
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ARTICLE 6 - SUPERVISION AND QUALITY CONTROL
6.1 Standards and Specifications
Supplier shall manufacture the Products in accordance with NF's (or NF
Affiliate's) specifications quality standards as maybe provided to
Supplier from time to time. NF (or NF Affiliates) shall have the right
to review and approve the quality level of such Products which are
produced by Supplier. Supplier shall not distribute, market or sell any
Products to NF and NF Affiliates to having quality, appearance or weight
that do not meet the technical specifications required by NF (or NF
Affiliates).
6.2 Inspection
NF (or NF Affiliates) shall have the right to inspect Supplier's
manufacturing facility and warehouse in relation to the Products, at any
reasonable time during working hours upon prior written notice to
Supplier.
6.3 Sampling
During the term of this Contract, at NF's (or NF Affiliate's) request,
Supplier agrees to obtain and submit, free of any charge to NF (or NF
Affiliates), an agreed upon number of randomly selected, then current
production samples of the Products, so that NF (or NF Affiliates) may
assure itself of the quality thereof. If, at any time, any such sample
is disapproved by NF (or NF Affiliates) for good cause, NF (or NF
Affiliates) shall so advise Supplier and, upon receipt of such written
advice, Supplier shall have a reasonable opportunity (no longer than
ninety (90) days) to correct the problem and restore the quality of the
Products to the satisfaction of NF (or NF Affiliates). If Supplier fails
to correct the quality of the said Products, NF (or NF Affiliates) shall
have the right to terminate this Contract upon the second written notice
to Supplier.
6.4 Product Responsibility
Notwithstanding NF's right to enforce compliance with NF's quality
standards with respect to the Products, Supplier shall be solely
responsible for the manufacturing quality of all Products. Specifically,
Supplier shall comply with all relevant laws and regulations of the
People's Republic of China in connection with, and shall obtain all
necessary approvals, licenses and permits for the manufacture, supply,
sale and export (where applicable) of the Products.
ARTICLE 7 - REPRESENTATIONS, WARRANTIES AND BREACH
7.1 Representations
Supplier represents, warrants and undertakes with NF that, at the time
of delivery of the Products to NF (or NF Affiliates, as the case may
be), all Products shall comply with the specifications provided by NF
(or NF Affiliates, as the case may be) to Supplier (and accepted by
Supplier) from time to time, fit for the purpose as may be specified by
NF (or NF Affiliates, as the case may be) in its purchase orders.
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7.2 Breach of Article 7.1
In the event of any Supplier's breach of its representations, warranties
and undertakings made under Article 7.1 of this Contract, Supplier shall
be liable to, at NF's (or NF Affiliate's, as the case may be) option:
(a) promptly replace the Products in question; or
(b) promptly repay the price of the Products.
in addition to other remedies which NF (or NF Affiliates) may have
hereunder or under law.
ARTICLE 8 - INVESTIGATION RIGHT AND RIGHT OF SET-OFF
8.1 Right to Audit
Within three (3) months after the end of each calendar year during the
Term at, at NF's (or NF Affiliates') request and agreed by Supplier, the
Parties shall jointly appoint an internationally based, reputable and
sizable accounting firm ("ACCOUNTANT") (which also shall have a presence
in the PRC, for example, Ernst and Young) at NF's expense to investigate
the books and accounts of Supplier for the sole purpose of determining
whether the Products supplied to NF and NF Affiliates are supplied with
the most favorable prices when compared to other sales of the Products
made by Supplier (including those made to Third Parties). Supplier
undertakes with NF that Supplier shall cooperate with and provide the
Accountant reasonable access to Supplier's financial and sales records,
provided that the following scope and instructions have been provided to
the Accountant:
(a) the Accountant shall keep confidential all documents and
information of Supplier examined while conducting its
investigation, other than those permitted to be disclosed
hereunder;
(b) the Accountant only shall review Accepted Third Party Purchases
that involve Products that have the similar specifications in
one or more of the purchase orders placed by NF or an NF
Affiliates;
(c) when the Accountant makes comparison of prices, it also shall
take into account other terms of these Accepted Third Party
Purchases. The Accountant shall report its findings in writing
(the "REPORT") to the Parties within one (1) month after
concluding the above investigation.
8.2 Right of Refund or Set-off
Following the issuance of the Report by the Accountant in accordance
with Article 8.1 hereof, if the price(s) of the Products supplied to NF
(or NF Affiliates, as the case may be) in any given period are not the
most favorable as stipulated in Article 4.1, NF
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(or NF Affiliates, as the case may be) shall be entitled to a refund by
Supplier of the overpaid amount(s) . Alternatively, NF may elect to
set-off this overpaid amount against the invoiced amount in respect of a
subsequent purchase of Products by NF (or NF Affiliates) made pursuant
to this Contract.
ARTICLE 9 - NF COMMITMENTS
9.1 Subject to Article 9.3 hereof, NF represents, warrants and undertakes
with Supplier that, with respect to each calendar year during the Term
(or part of the calendar year for the first and last years during the
Term), NF and NF Affiliates together shall purchase from Supplier 70% of
the United States Dollar amount of the Products stated the applicable
Annual Budget for that year ("MINIMUM PURCHASE AMOUNTS"). The failure by
NF and NF Affiliates to meet the Minimum Purchase Amounts in accordance
with this Article 9.1 shall constitute a breach under this Contract. In
the event that NF and NF Affiliates fail to meet the Minimum Purchase
Amounts, Supplier shall use its best efforts to find other purchaser(s)
for the shortfall, notwithstanding Supplier's other rights under this
Contract.
9.2 Subject to Article 9.3 hereof, with respect to the purchase of Products,
NF shall first purchase the Products from Supplier during the Term.
9.3 NF's obligations under Article 9.1 and Article 9.2 hereof shall be
subject to (i) Supplier having capacity and being able to manufacture
and supply the Products to NF that meet NF's specifications and
standards; and (ii) the sale of Products to NF being made in accordance
with the terms of this Contract (including Articles 3, 4, 5, 6 and 7
hereof).
ARTICLE 10 - TERMINATION
10.1 Termination
(a) One Party shall have the right to terminate this Contract by
providing the other Party thirty (30) days prior notice in
writing under any of the following circumstances:
(i) if the other Party materially breaches this Contract and
such a breach is not remedied within thirty (30) days of
notification of such breach;
(ii) if the other Party has become bankrupt or is the subject
of proceedings for liquidation or dissolution or ceases
to carry on business or becomes unable to pay its debts
as they become due; or
(iii) if both Parties agree in writing to terminate this
Contract.
10.2 Expiration or termination of this Contract shall not affect any supply
obligations of Supplier to NF (and NF Affiliates) based on purchase
orders already placed with Supplier prior to such expiration or
termination.
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ARTICLE 11 - FORCE MAJEURE
11.1 Definition of Force Majeure
"FORCE MAJEURE" shall mean all events which are beyond the control of
the Parties to this Contract, and which are unforeseen, unavoidable or
insurmountable, and which prevent total or partial performance by either
Party. Such events shall include earthquakes, typhoons, flood, fire,
war, failures of international or domestic transportation, acts of
government or public agencies, epidemics, civil disturbances, strikes
and any other event which cannot be foreseen, prevented or controlled,
including events which are recognized as Force Majeure in general
international commercial practice.
11.2 Consequences of Force Majeure
(a) If an event of Force Majeure occurs, a Party's contractual
obligations affected by such an event shall be suspended during
the period of delay caused by the Force Majeure and the period
for performing such obligations shall be extended, without
penalty, for a period equal to such suspension.
(b) The Party claiming Force Majeure shall promptly inform the other
Party in writing and shall furnish within fifteen (15) days
thereafter sufficient proof of the occurrence and expected
duration of such Force Majeure. The Party claiming Force Majeure
shall also use all reasonable endeavours to terminate the Force
Majeure.
(c) In the event of Force Majeure, the Parties shall immediately
consult with each other in order to find an equitable solution
and shall use all reasonable endeavours to minimize the
consequences of such Force Majeure.
ARTICLE 12 - SETTLEMENT OF DISPUTES
12.1 Consultations
In the event any dispute arises in connection with the interpretation or
implementation of this Contract, the Parties shall attempt in the first
instance to resolve such dispute through friendly consultations. If the
dispute is not resolved in this manner within sixty (60) days after the
date on which one Party has served written notice on the other Parties
for the commencement of consultations, then any of the Parties may refer
the dispute to arbitration in accordance with the provisions of Article
12.2 hereof.
12.2 Arbitration
With respect to any disputes which have not been resolved through
consultations, they shall be submitted for arbitration to China
International Economic And Trade Arbitration Commission in Beijing
("ARBITRATION INSTITUTE") in accordance with the
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applicable arbitration rules ("ARBITRATION RULES"), for final decision
pursuant to the provisions of its Arbitration Rules.
The arbitration shall also be conducted in accordance with the following
provisions:
(a) the arbitrators shall refer to the Chinese and English texts of
this Contract;
(b) all proceedings in any arbitration shall be conducted in
Chinese; and
(c) there shall be three (3) arbitrators all of whom shall be fluent
in English. NF shall select one (1) arbitrator and Supplier
shall select one (1) arbitrator. The third arbitrator shall be
appointed by the Arbitration Institute and shall serve as
chairman of the arbitration tribunal.
12.3 Effect of Arbitration Award
The arbitration award shall be final and binding on the Parties, and the
Parties agree to be bound thereby and to act accordingly.
12.4 Costs
The costs of arbitration shall be borne by the Party as designated in
the arbitration award.
12.5 Continuing Rights and Obligations
When any dispute occurs and when any dispute is under arbitration,
except for the matters under dispute, the Parties shall continue to
exercise their remaining respective rights, and fulfil their remaining
respective obligations under this Contract.
ARTICLE 13 - BREACH OF CONTRACT
13.1 General Breach and Indemnity
If one Party breaches any of its representations, warranties or
undertakings made under this Contract, such Party shall be liable to the
other Party (including NF Affiliates in the case of NF) for the direct
and indirect losses suffered by the other Party (including NF Affiliates
in the case of NF) as a result of such breach.
Each Party (the "INDEMNIFYING PARTY") further indemnifies and holds
harmless the other Party (including NF Affiliates in the case of NF) for
any claim, loss or damage sustained or incurred by the other Party
(including NF Affiliates in the case of NF) or arising as a result of a
breach by the Indemnifying Party of its representations, warranties,
undertakings and obligations hereunder, in addition to other remedies
which the other Party (including NF Affiliates in the case of NF) may
have under law.
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13.2 Liability for Breach of Contract
In the event that a breach of contract committed by a Party to this
Contract results in the non-performance of or inability to fully perform
this Contract, the liabilities arising from the breach of contract,
including reasonable attorneys fees, shall be borne by the Party in
breach as provided in this Contract. In the event that a breach of
contract is committed by both Parties, each Party shall bear its
individual share of the liabilities arising from the breach of contract.
ARTICLE 14 - GENERAL PROVISIONS
14.1 Governing Law
The validity, interpretation, implementation and resolution of disputes
of this Contract shall be governed by the laws of the People's Republic
of China.
14.2 Assignability
Neither Party may at any time assign this Contract or any of its rights
and obligations hereunder without the prior written consent of the other
Party, except that NF shall have the right to assign its rights,
obligations and interests under this Contract to NF Delaware or an NF
Affiliate and Supplier shall be deemed hereby to have given its consent
to such assignment.
14.3 Entire Agreement
This Contract, including the attachments appended hereto, constitutes
the entire agreement between the Parties hereto relating to the subject
matter hereof. This Contract may be amended only by a written document
signed by both Parties.
14.4 Severability of Terms
If any one or more of the provisions contained in this Contract shall be
invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired.
14.5 No Waiver
The failure of one party to enforce any of the provisions of this
Contract or to exercise any right herein provided shall not be deemed a
waiver of such or any other provision or in any way affect the validity
of this Contract.
14.6 Language
This Contract and the attachments appended hereto are executed in both
English and Chinese. Both language versions shall be equally authentic.
If a provision of this Contract in the two versions are inconsistent,
the Chinese version shall prevail.
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14.7 Notices
Any notice or written communication provided for in this Contract by
either Party to the other, including but not limited to any and all
offers, writings, or notices to be given hereunder, shall be made in
English and Chinese by facsimile or by courier service delivered letter,
promptly transmitted or addressed to the appropriate Party. The date of
receipt of a notice or communication hereunder shall be deemed to be
seven (7) days after the letter is given to a reputable courier service
in the case of a courier service delivered letter and two (2) working
days after dispatch of a facsimile if evidenced by a transmission
confirmation report. All notices and communications shall be sent to the
appropriate address set forth below, until the same is changed by notice
given in writing to the other Party.
NF:
NEW FOCUS PACIFIC CO., LTD.
Building R3-B, Unit A, 1st Floor,
Shenzhen High-Tech Industrial Park,
Nanshan District, Shenzhen, PRC
Telephone No: 000-0000000
Facsimile No: 755-6525150
Attention: General Manager
Supplier:
FUZHOU CONET COMMUNICATION, INC.
Xx. 00 Xxxxxx Xxxxxx
Xxxxxx Fuxing Investment Zone
Jingan District, Fuzhou
People's Republic of China
Telephone No: 0000-0000000
Facsimile No: 0591-3627300
Attention: General Manager
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IN WITNESS WHEREOF, the Parties hereto have caused this Contract to be executed
by their duly authorized representatives on the date first written above.
NEW FOCUS PACIFIC CO., LTD. FUZHOU CONET COMMUNICATION, INC.
By: /s/ BAO-TONG MA By: /s/ ZHI-XXX XXX
---------------------------- ------------------------------
Name: Bao-Tong Ma Name: Zhi-Xxx Xxx
---------------------------- ------------------------------
Title: General Manager Title: Chairman of the Board
---------------------------- ------------------------------
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ANNEX 1
PRODUCTS TO BE SUPPLIED
Optical Crystals and Optical Fibre Components as specified by NF in its purchase
orders, Quarterly Budgets and Annual Budget from time to time.
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