Exhibit 10.22
COMPANY TO PHOTRONICS SUPPLY AGREEMENT
THIS COMPANY TO PHOTRONICS SUPPLY AGREEMENT is made and entered into as
of May 5, 2006 (the "Effective Date"), by and between MP Mask Technology Center,
LLC, a Delaware limited liability company (the "Company"), and Photronics, Inc.,
a Connecticut corporation ("Photronics"). The Company and Photronics are
hereinafter collectively referred to as the "Parties" and individually as a
"Party."
RECITALS
WHEREAS, pursuant to the Limited Liability Company Operating Agreement
of the Company of the same Effective Date herewith (the "Operating Agreement"),
by and between Micron Technology, Inc. ("Micron") and Photronics, Micron and
Photronics have formed the Company for the purpose of developing, producing and
manufacturing photomasks and prototypes for photomasks ("Products");
WHEREAS, Micron and Photronics have entered into a technology license
agreement of the same Effective Date herewith (the "Technology License
Agreement"), under which the necessary technology has been licensed to the
Company in order for it to fulfill its obligations under this Agreement;
WHEREAS, Micron and Photronics have entered into a separate supply
agreement of the same Effective Date herewith (the "Photronics to Micron Supply
Agreement"), which details the terms under which Photronics will supply to
Micron the products it has purchased from the Company under this Agreement; and
WHEREAS, Photronics and the Company desire to enter into this Agreement
so that Photronics may purchase the products manufactured by the Company;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and other terms and conditions contained herein, the
Parties hereby agree as follows:
1. DEFINITIONS; INTERPRETATION
For purposes of this Agreement, the definitions set forth in this
Section 1 shall apply to the respective capitalized terms. All capitalized terms
not defined herein shall have the meaning set forth in the Operating Agreement.
1.1 "Company Location" shall mean the Company's photomask production
facility located at [****].
1.2 "Cost" shall have the meaning set forth in Schedule 5.1
1.3 "Dead-on-Arrival" shall mean any Products that are discovered to
contain a Material Defect within thirty (30) calendar days after receipt of
shipment of the Product.
1.4 "Entity" means a corporation, partnership, limited liability
company, unincorporated organization, business association, firm, joint venture
or other legal entity.
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1.5 "Fiscal Month" shall mean a fiscal month of Micron.
1.6 "Fiscal Quarter" shall mean a fiscal quarter of Micron.
1.7 "Loading Requirement" shall have the meaning defined in the
Photronics to Micron Supply Agreement.
1.8 "Material Defect" shall mean any malfunction, error or other defect
in a Product that constitutes a material nonconformity with the Specifications
for such Product under conditions of normal and proper use.
1.9 "Micron Supply Agreement" shall mean the Company to Micron Supply
Agreement of the same Effective Date herewith, by and between Micron and the
Company.
1.10 "Micron's Specifications" shall mean the specifications provided
by Micron for each Product in accordance with Micron's photomask ordering
procedures and node requirements.
1.11 "Product" or "Products" means photomasks and photomask prototypes
that are to be manufactured by the Company or Photronics in accordance with
Micron's Specifications and requirements or in accordance with a Photronics'
customer's specifications and requirements, as applicable.
1.12 "Purchase Order" shall mean a written purchase order that is
delivered to the Company in accordance with Section 3.2.
1.13 "Qualified" shall have the meaning set forth in the Technology
License Agreement.
1.14 "Specifications" shall mean the specifications provided by
Photronics to the Company for each Product in accordance with Photronics'
photomask ordering procedures and node requirements.
1.15 "Technology License Agreement" shall mean the Technology License
Agreement of the same effective date herewith, by and among Micron, Photronics
and the Company.
2. PURCHASES; MANUFACTURE AND SUPPLY; FORECASTS
2.1 Photronics Purchases. Photronics shall purchase Products from the
Company in accordance with the terms and conditions of this Agreement. Subject
to the terms of this Agreement and the Operating Agreement, Photronics may
subcontract to the Company the manufacture of Product for which it has received
purchase orders (x) from Micron pursuant to the Photronics to Micron Supply
Agreement and (y) from other customers of Photronics, and will purchase Product
manufactured by the Company at the purchase price set forth in Section 5.1.
2.2 Company Manufacture and Supply of Product; Micron Purchases. Except
as set forth in this paragraph, the Photronics to Micron Supply Agreement and
the Micron Supply Agreement, the Company shall sell Product to Photronics for
resale to Micron and other customers of Photronics and shall not sell Products
manufactured by the
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Company directly to Micron. In addition, in the event Photronics is (i) in
default of any of its material obligations under any of the Transaction
Documents, or (ii) unable, unwilling or otherwise fails, for any or no reason,
to become or remain Qualified with respect to any Product, then notwithstanding
any other provision herein or in the Photronics to Micron Supply Agreement,
Micron may purchase Products directly from the Company, at the Company's actual
documented cost and in accordance with the terms of this Agreement, until
Photronics (a) cures any default hereunder or (b) demonstrates, to Micron's
reasonable satisfaction, that it can and does meet Micron's specified
qualification requirements with respect to Products, as applicable.
2.3 Forecasts. [****].
2.4 Capacity Commitment. [****].
3. PURCHASE ORDERS
3.1 Purchase Orders. Photronics shall purchase Products from the
Company by issuing a Purchase Order or a release to a blanket Purchase Order
that references this Agreement. Photronics and the Company agree that a Purchase
Order sent to the Company by confirmed facsimile or electronic transmission
shall constitute a writing for all legal purposes. All Purchase Orders submitted
to the Company shall be governed by the terms of this Agreement. Nothing
contained in any Purchase Order or the Parties' other documents of purchase or
sale shall in any way modify the terms of purchase or add any additional terms
or conditions except as specifically agreed in writing by the parties.
3.2 Acknowledgment of Purchase Orders. The Company shall notify
Photronics of the receipt and acceptance of a Purchase Order and of the accepted
delivery date for accepted orders within two (2) business days after receipt of
the Purchase Order and any Purchase Order not specifically rejected in writing
by the Company during such period shall be deemed accepted hereunder. The
Company may not reject a Purchase Order or release issued in compliance with
this Agreement and seeking delivery of Products within Forecasted amounts and
established lead times.
3.3 Revision of Purchase Orders. Photronics shall have the right,
without charge, to issue change orders to Purchase Orders by providing written
notice to the Company prior to the beginning of the production of the Product
impacted by such change order. The Company shall use all commercially reasonable
efforts to accommodate Photronics' revised Purchase Order in accordance with the
Company's lead times in effect at the time the Purchase Order change is
requested.
3.4 Cancellations. [****].
3.5 Reschedules. Photronics may reschedule the delivery of any Purchase
Order or portion thereof for Products, without charge upon notice to the
Company.
4. SHIPPING; DELIVERY; ACCEPTANCE
4.1 Packaging Requirements. All shipments shall be in packaging that
complies with the Specifications and, if applicable, Micron's packaging
requirements. In addition, all
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shipments shall be accompanied by a detailed packing list which will reference
the Products, Purchase Order number, and the quantity in each shipment covered
by the packing list.
4.2 Shipping. The Company shall ensure that Product orders are
delivered on the applicable delivery date(s). Orders will be shipped to the
delivery address set forth in the applicable Purchase Order.
4.3 Delivery. The Company's liability for delivery shall cease and
title and all risk of loss or damage shall transfer to Photronics when the
Product is delivered to Photronics' or its customer's designated receiving
facility, as specified in the Purchase Order. Photronics or its customer shall
be the importer of record and pay all related duties, fees and charges. The
Company shall immediately notify Photronics in writing of any anticipated delay
in meeting the delivery schedule, stating the reasons for the delay. No shipment
will be deemed complete until all ordered units have been delivered.
4.4 Dead on Arrival. In the event that any Product is found by
Photronics or Micron to be Dead-on-Arrival, the Company shall use reasonable
efforts consistent with the Company's practices to ship, at the Company's sole
expense, a replacement Product to the site designated by Photronics or Micron
within fourteen (14) business days of receipt of notice from Photronics or
Micron and Photronics or Micron shall return the Dead-on-Arrival Product in
accordance with the Product return procedures described under Section 6.2.
5. PRICE; PAYMENTS; TAXES; AUDIT
5.1 Purchase Price for Products. The purchase price for each Product
purchased by Photronics from the Company shall be the Company's cost of the
Product as set forth in Schedule 5.1.
5.2 Payments Terms. The Company shall provide an invoice to Photronics
with an estimated price upon the shipment of Product hereunder. Each such
invoice shall specify the Purchase Order for each Product and the estimated
price per photomask. After each Fiscal Month end, the Company shall provide
Photronics with a final invoice and Photronics' payment obligation shall be
calculated from the date of Photronics' receipt of such invoice. Unless
otherwise agreed by the Parties, payments for Product delivered in accordance
with Section 4, and any other payments required hereunder, shall be made within
thirty (30) days after the receipt of the final invoice. Payment does not
constitute acceptance. In no event shall the Company deliver an invoice before
shipping the Products to which such invoice relates. All amounts payable by
Photronics to the Company shall be paid in U.S. Dollars.
5.3 Taxes. All amounts payable for Product sold by the Company to
Photronics hereunder are exclusive of any taxes. Photronics shall be responsible
for and shall pay any applicable sales, use, excise or similar taxes, including
value added taxes and customs duties due on the importation of Products and
arising from purchases made by Photronics under this Agreement, excluding any
taxes based on the Company's income. All such taxes shall be determined based
upon the final shipment designation of the items identified on the invoice.
5.4 Audit of Books and Records. Upon Photronics' request from time to
time (not to exceed two (2) times per year), Photronics shall have the right to
perform an audit of
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the Company's books and records to verify its compliance with the terms and
conditions of this Agreement. In the event an audit reveals an overpayment by
Photronics, the Company shall immediately issue a refund to Photronics for any
such overpayment. Any audit performed hereunder shall be performed in a manner
that ensures compliance with all applicable Laws and confidentiality
requirements.
5.5 Inspection of Company Location. Upon Photronics' reasonable request
from time to time, Photronics shall have the right to perform a reasonable
inspection of the Company's Location, as necessary to verify that the facility
meets Micron's Specifications and requirements. In the event an inspection of
the Company's Location reveals any deficiency in meeting Micron's Specifications
and requirements, the Company shall promptly take action to remedy such
deficiency.
6. WARRANTIES
6.1 Company Product Warranty. [****]. This warranty does not apply to
any Product failures resulting from any misuse, abuse, neglect, alteration,
modification, improper installation of or repairs to the Product by anyone other
than the Company.
6.2 Remedies. In the event that Photronics or Micron notifies the
Company during the applicable Warranty Period that any Product does not conform
to the warranty provisions set forth in Section 6.1, the Company shall, at its
option, (a) replace such defective Product at no cost to Photronics or Micron,
as applicable, in accordance with the Company's Product return material
authorization procedures within ten (10) days of the Company's receipt of the
defective Product, (b) repair such defective Product at no cost to Photronics or
Micron, as applicable, or (c) provide a refund of any amounts paid by Photronics
or Micron, as applicable, for such defective Product. The Company shall bear all
packing, transportation, insurance and other costs incurred in connection with
the replacement or repair of defective Products. Except for resulting personal
injury or property damage, this paragraph states the exclusive remedy of
Photronics for failure of any Product to conform to the warranty provisions set
forth in Section 6.1.
6.3 No Warranty Pass Through. Photronics shall have the right to make
Product warranties to its customers consistent with the Product warranty made by
the Company under this Agreement. Photronics hereby indemnifies and holds the
Company harmless from and against any liabilities, losses, damages, costs and
expenses, including attorneys' fees and costs, incurred by the Company resulting
from any claims based on or related to any representation or warranty made by
Photronics regarding the Products that is inconsistent with the warranty made by
the Company hereunder.
6.4 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES (AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS) ANY
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
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7. CONFIDENTIAL INFORMATION
7.1 Protection and Use of Confidential Information. All information
provided, disclosed or obtained in connection with this Agreement or the
performance of either of the Parties' activities under this Agreement shall be
subject to all applicable provisions of the Nondisclosure Agreement.
Furthermore, the terms and conditions of this Agreement shall be considered
"Confidential Information" under the Nondisclosure Agreement for which each
Party is considered a "Receiving Party" under such agreement. To the extent
there is a conflict between this Agreement and the Nondisclosure Agreement, the
terms of this Agreement shall control. For purposes of this Section 7.1 only,
Micron shall be considered a "Party." If the Nondisclosure Agreement is
terminated or expires and is not replaced, such Nondisclosure Agreement shall
continue with respect to confidential information provided in connection with
this Agreement, notwithstanding such expiration or termination, for the duration
of the Initial Term and any and all extension periods or until a new
nondisclosure agreement is entered into between the Parties.
8. LIMITATION OF LIABILITY. [****], IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY OR ANY THIRD PARTY CLAIMING THROUGH OR UNDER EACH SUCH PARTY,
FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT
OR TORT, BASED ON A WARRANTY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, EVEN IF EACH SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. [****]. Each Party acknowledges that the foregoing limitations are
an essential element of the Agreement between the Parties and that in the
absence of such limitations the pricing and other terms set forth in this
Agreement would be substantially different. Each Party shall have a duty to
mitigate any damages hereunder in accordance with applicable law.
9. TERM AND TERMINATION
9.1 Term. This Agreement will be effective as of the Effective Date,
and shall remain in force for ten (10) years (the "Initial Term").
9.2 Termination for Breach. The Company may terminate this Agreement in
the event that Photronics materially breaches any of the provisions of this
Agreement or the Photronics to Micron Supply Agreement and does not cure such
material breach within ninety (90) days following receipt of notice of such
breach. Provided that if the breach is capable of being cured and the breaching
Party has worked diligently and in good faith since the receipt of the notice to
cure such breach, the cure period will be extended for an additional thirty (30)
days.
9.3 Cross-Termination. Unless otherwise expressly agreed in writing by
the parties, this Agreement shall automatically terminate upon the dissolution
of the Company or the termination of the Operating Agreement or the Photronics
to Micron Supply Agreement.
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9.4 Effect of Termination.
9.4.1 Continuing Liability. The termination of this Agreement for
any reason shall not release either party from any liability, obligation or
agreement which has already accrued at the time of termination. Termination of
this Agreement for any reason shall not constitute a waiver or release of, or
otherwise be deemed to prejudice or adversely affect, any rights, remedies or
claims, whether for damages or otherwise, which a party may have hereunder, at
law or otherwise, or which may arise out of or in connection with such
termination.
9.4.2 Outstanding Purchase Order Fulfillment. The Company shall
complete all Purchase Orders that have been previously accepted by the Company
and not specifically cancelled upon termination by Photronics or Micron and
shall accept and fulfill any Purchase Orders issued by Photronics or Micron for
a period of [****] after termination of this Agreement, provided that the reason
for termination was not a failure by Photronics to pay amounts previously due to
the Company under this Agreement.
9.4.3 Payment Obligation. Photronics shall pay for all Products
previously delivered by the Company and all Products subsequently delivered by
the Company pursuant to the Purchase Orders referred to in Section 9.4.2.
9.5 Survival. The provisions of Sections 5.3, 6, 7, 8, 9.4, 9.5 and 10
shall survive any termination of this Agreement.
10. MISCELLANEOUS TERMS
10.1 Amendments. This Agreement may not be amended without the prior
written consent of both parties.
10.2 No Waiver. Any provision of this Agreement may be waived if, and
only if, such waiver is in writing and is duly executed by the party against
whom the waiver is to be enforced. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial waiver or exercise thereof
preclude the enforcement of any other right, power or privilege.
10.3 Notices and Other Communications. All notices required or
permitted under this Agreement shall reference this Agreement and will be deemed
given: (a) when sent by confirmed facsimile; (b) five (5) business days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (c) three (3) business days after deposit with an
internationally recognized commercial overnight carrier specifying next-day
delivery, with written verification of receipt. All such notices, requests,
demands and other communications shall be addressed as follows:
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If to the Company:
MP Mask Technology Center, LLC
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxxx 00000
Attention: General Manager
Facsimile: (000) 000-0000
If to Photronics:
Photronics, Inc.
00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Senior Vice President and General
Counsel
Facsimile: (000) 000-0000
and
Photronics, Inc.
00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Senior Vice President and Chief
Financial Officer
Facsimile: (000) 000-0000
or to such other address or facsimile number as a Party may have specified to
the other Parties in writing delivered in accordance with this Section 10.3.
10.4 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, United States of America, as
applied to agreements among Delaware residents entered into and wholly to be
performed within the State of Delaware (without reference to any choice or
conflicts of laws rules or principles that would require the application of the
laws of any other jurisdiction).
10.5 Construction; Interpretation.
10.5.1 Certain Terms. The words "hereof," "herein," "hereunder" and
similar words refer to this Agreement as a whole and not to any particular
provision of this Agreement. The term "including" is not limited and means
"including without limitation."
10.5.2 Section References; Titles and Subtitles. Unless otherwise
noted, all references to Sections and Schedules herein are to Sections and
Schedules of this Agreement. The titles, captions and headings of this Agreement
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
10.5.3 Reference to Persons, Agreements, Statutes. Unless otherwise
expressly provided herein, (i) references to a Person include its successors and
permitted assigns, (ii) references to agreements (including this Agreement) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements and other modifications thereto or supplements thereof
and (iii) references to any statute or regulation
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are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such statute
or regulation.
10.5.4 Presumptions. No party, nor its counsel, shall be deemed the
drafter of this Agreement for purposes of construing the provisions of this
Agreement, and all provisions of this Agreement shall be construed in accordance
with their fair meaning, and not strictly for or against any party.
10.6 Rights and Remedies Cumulative. All remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to any Party at law, in equity or otherwise.
10.7 No Assignment; Binding Effect. Except as otherwise expressly
provided in this Agreement, neither Party may assign, delegate or otherwise
transfer any of its rights or obligations hereunder to any third party, whether
by assignment, transfer, Change in Control, or other means, without the prior
written consent of the other Party; provided, however, that this Agreement may
be assigned in connection with a Permitted Photronics Change of Control if
Micron does not elect to exercise its purchase rights pursuant to Section 7.4.2
of the Operating Agreement. Any attempted assignment in violation of the
foregoing shall be null and void. Subject to the foregoing, this Agreement shall
be binding on and inure to the benefit of the Parties, their heirs, executors,
administrators, and successors.
10.8 Relationship of the Parties. In the exercise of their respective
rights and the performance of their respective obligations hereunder the Parties
are, and will remain independent contractors. Nothing in this Agreement will be
construed to constitute the Parties as partners or principal and agent for any
purpose whatsoever. Neither Party will bind, or attempt to bind, the other Party
hereto to any contract or other obligation, and neither Party will represent to
any third party that it is authorized to act on behalf of the other Party to
this Agreement.
10.9 Severability. If any provision in this Agreement will be found or
be held to be invalid or unenforceable, then the meaning of said provision will
be construed, to the extent feasible, so as to render the provision enforceable,
and if no feasible interpretation would save such provision, it will be severed
from the remainder of this Agreement which will remain in full force and effect
unless the severed provision is essential and material to the rights or benefits
received by any party. In such event, the Parties will use their respective best
efforts to negotiate, in good faith, a substitute, valid and enforceable
provision or agreement which most nearly effects the Parties' intent in entering
into this Agreement.
10.10 Execution. This Agreement may be executed in counterparts, each
of which so executed will be deemed to be an original and such counterparts
together will constitute one and the same agreement. Execution and delivery of
this Agreement by exchange of facsimile copies bearing the facsimile signature
of a Party shall constitute a valid and binding execution and delivery of this
Agreement by such Party.
10.11 Force Majeure. Neither Party shall be deemed in default if its
performance or obligations hereunder are delayed or become impossible or
impractical due to causes beyond its reasonable control, including acts of God,
war, fire, earthquake, and acts of civil
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or military authority. Force majeure events shall not include delays in
transportation, shortages of material or delays by subcontractors or suppliers,
unless such delay by a subcontractor or a supplier was caused by an event that
would qualify as a force majeure event under this Section 10.11. Under no
circumstances shall economic considerations or economic impossibilities or
inefficiencies delay performance or be considered a force majeure. The time for
performance of any such obligation shall be extended for the time period lost by
reason of the delay.
10.12 Dispute Resolution. The parties hereby agree that claims,
disputes or controversies of whatever nature, arising out of, in connection
with, or in relation to the interpretation, performance or breach of this
Agreement (or any other agreement contemplated by or related to this Agreement),
shall be resolved in accordance with the dispute resolution procedures set forth
in Section 11.3 of the Operating Agreement.
10.13 Entire Agreement. This Agreement, together with the other
documents, exhibits and schedules referred to herein and therein, constitute the
entire agreement among the parties hereto pertaining to the subject matter
hereof, and supersede any and all prior oral and written, and all
contemporaneous oral, agreements or understandings pertaining thereto. There are
no agreements, understandings, restrictions, warranties or representations
relating to such subject matter between the parties other than those set forth
herein and in the other documents, exhibits and schedules referred to herein and
therein.
10.14 No Third Party Beneficiaries. The terms and provisions of this
Agreement are intended solely for the benefit of the Parties and their
respective successors and permitted assigns, and the Parties do not intend to
confer third party beneficiary rights upon any other Entity or person.
Notwithstanding the foregoing, Micron shall be deemed a third party beneficiary
to the extent it purchases Product directly from the Company pursuant to Section
2.2 and shall have the right to directly enforce the obligations of the Company
set forth in Sections 2.2, 4, 6 and 9.4.2 against the Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the day and year first above written.
Photronics, Inc.
By:
-----------------------------------
Name:
---------------------------------
Title:
----------------------------------
MP Mask Technology Center, LLC
By:
-----------------------------------
Name:
---------------------------------
Title:
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Securities and Exchange Commission.
SCHEDULE 5.1
PRODUCT COST
[****]
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Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
