AMENDED AND RESTATED
THREE (3) YEAR SUPPLY AGREEMENT
THIS AMENDED AND RESTATED THREE (3) YEAR SUPPLY AGREEMENT, made and
entered into this 31st day of March, 1998, by and between FIBERSTARS, INC., a
company organized and existing under laws of the state of California, having its
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000
(hereinafter called the "Buyer") and MITSUBISHI INTERNATIONAL CORPORATION, a
company organized and existing under the laws of the state of New York having
its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(hereinafter called the "Seller").
WITNESSETH
WHEREAS, the Buyer requires a stable supply of ESKA fiber optics
hereinafter more particularly specified (hereinafter called the "Products"); and
WHEREAS, the Seller is desirous of furnishing the Buyer's requirements
by selling the Products to the Buyer throughout the period hereinafter more
particularly specified;
WHEREAS, the Buyer and the Seller are parties to that certain Three (3)
Year Supply Agreement (the "October Agreement") dated October 29, 1997; and
WHEREAS, the Buyer and the Seller wish to amend and supplement the
October Agreement as set forth herein to provide that they shall keep the price
and quantity terms of the Agreement confidential;
NOW, THEREFORE, in consideration of the foregoing and the obligations
of the Seller and the Buyer herein contained, the parties hereby agree as
follows:
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ARTICLE 1. DEFINITIONS
In this agreement, the following terms shall have the following
meanings, except where the context otherwise requires;
(a) "Contract Period" means a period of 3 years commencing on
January 1, 1998 and ending on December 31, 2000.
(b) "$" means the lawful currency of the United States of America.
(c) "Month" means a calendar month.
(d) "Price" means the price of the Products DDP Port of Oakland.
"DDP" means the delivery terms of Delivered Duty Paid that is
construed in accordance with 1990 Incoterms Edition.
(e) "Products" means ESKA plastic fiber optics Item No. LK-30,
meeting the description and specifications produced by
Mitsubishi Rayon Co., Ltd. Japan and other items to be
mutually agreed by the Buyer and the Seller and to be supplied
by the Seller.
(f) "Competitive Products" means:
(i) any other plastic fiber optics that are similar in
composition and performance to the Products and also
technically suppliable from the Seller; and
(ii) any fiber optics produced in Japan.
(g) "Stage l" means the period which the Seller sell and deliver
the Products or Competitive Products from [ ] spools to [ ]
spools from the beginning of the Contract Period.
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(h) "Stage 2" means the period which the Seller sell and deliver
the Products or Competitive Products to the Buyer from [ ]
spools to [ ] spools after completion of Stage 1 during the
Contract Period.
(i) "Stage 3" means the period which the Seller sell and deliver
Products or Competitive Products to the Buyer from [ ] spools
to [ ] spools after completion of Stage 2 during the Contract
Period.
In this Agreement, unless the context requires otherwise, the singular
includes the plural and vice-versa.
ARTICLE 2. SALES AND PURCHASE OF PRODUCTS
2.1 Subject to the terms and conditions hereinafter set forth, the
Seller shall sell and deliver the Buyer's requirements of the
Products and the Buyer shall purchase and take delivery of the
Products for the period of Contract. It is the intention of
the parties hereto that in recognition that the long term
contractual relationship is the essence of this Agreement,
unless specifically provided for in this Agreement, neither
party may in any way be exempted from those obligations to
sell or to purchase the Products, as the case may be, during
the term of this Agreement, nor may terminate this agreement.
2.2 Subject to the conditions set forth in this section, the Buyer
shall purchase the Products and the Competitive Products
solely from the Seller and shall not purchase the Products or
the Competitive Products from any individual firm or company
other that the Seller for the Contract Period. [ ].
2.3 The Seller represents and warrants that [ ].
2.4 [ ].
2.5 During the Term of this Agreement, [ ].
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ARTICLE 3. PRICE AND QUANTITY
3.1 QUANTITY
Contract quantity is[ ]spools.
The Buyer shall make best efforts to purchase all of contract
quantity no later than the end of Contract Period on the basis
of the following estimated quantities of the Products with the
Seller expects to deliver to the Buyer and of which the Buyer
expects to take delivery in each year:
1998 [ ] spools Stage 1
1999 [ ] spools Stage 2
2000 [ ] spools Stage 3
3.2 If the Buyer shall fail to take all of contract quantity by
the end of 2000, then the Buyer shall continue to purchase the
Products at above prices and this contract is considered to be
completed only when the total purchasing quantity comes up to
[ ] spools.
3.3 If Seller's shipping quantity reaches [ ] spools before the
end of November 2000: price for over [ ] spools valid until
shipment in November 2000 shall be negotiated and fixed by and
between the Buyer and the Seller.
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3.4 PRICE
Item LK30, length per spool: 9,000 meter, Price in $ per meter
Exchange Rate Higher 124.99 114.99 104.99 Lower
(Yen/$ TTB) than 000 - 000 -000 -00 than 94.99
Quantity(Spool) [ ] [ ] [ ] [ ] [ ]
Stage 1
[ ]
Stage 2 [ ] [ ] [ ] [ ] [ ]
[ ]
Stage 3 [ ] [ ] [ ] [ ] [ ]
[ ]
The inland freight from the Port of Oakland (CA) to any destination designated
by the Buyer shall be charged by the Seller to the Buyer additionally.
ARTICLE 4. DELIVERY SCHEDULE
The delivery of Products shall be made once a month and the monthly
delivery quantity for each calendar quarter in each Stage shall be confirmed by
the Buyer to the Seller in writing no later than 45 days prior to the first
monthly delivery of each calendar quarter.
ARTICLE 5. INSPECTION
The Seller shall have the Products inspected by the manufacturer, prior
to each shipment, in accordance with the manufacturer's usual inspection method.
ARTICLE 6. PACKING AND MARKING
Packing of the Products shall be made in the usual manner of the
manufacturer: however, the Buyer and the Seller shall continue to investigate
possible improvements in the packing of the Products for the purpose of reducing
damage.
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ARTICLE 7. TERMINATION
7.1 The Seller and the Buyer shall negotiate and make reasonable
best efforts to agree upon the extension or renewal of this
Agreement for the next 3 year period following the Contract
Years no later than October 15, 2000.
7.2 If any one of following shall occur:
(a) Either party hereto shall fail to perform any material
obligation under this Agreement.
(b) Either party shall become unable to pay its debts generally as
they become due, or shall hold a meeting of its creditors, or
shall make a general assignment for the benefit of its
creditors, or shall file a petition for bankruptcy, or shall
be adjudicated or declared a bankrupt or insolvent, or shall
file a petition or an answer seeking, consenting to or
acquiescing in any reorganization, arrangement, adjustment,
composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation,
or shall file an answer admitting or not contesting the
material allegations of a petition or answer filed against it
for or opposing any such relief, or
(c) a trustee, receiver or liquidator of either party or of any
material part of such party's assets or properties shall be
appointed with the consent or acquiescence of such party, or
if any such appointment, not so consented to or acquiesced in,
shall remain unvacated or unstayed or such trustee, receiver
or liquidator shall not have been dismissed or discharged for
an aggregate of (90) days (whether or not consecutive), then,
in addition to any other rights or remedies stipulated herein
and
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at law, the other party ("Non-Defaulting Party") shall give
written notice of such breach or default and to the effect
that if the breach or default is not remedied or made good,
the Non-Defaulting Party may terminate this Agreement. In the
Event that the party alleged to be in breach or default
("Defaulting Party"), within thirty (30) days after the
receipt of such notice, dose not remedy such breach or make
good such default and pay or agree to indemnify the
Non-Defaulting Party for and against all loss or damage that
may be incurred by the Non-Defaulting Party as a result
thereof, the Non-Defaulting Party forthwith may terminate this
Agreement and any other contract or agreement then effective
with Defaulting Party.
7.3 Neither of the parties hereto shall be responsible for any
incidental or consequential damage(e.g., loss of profit or
loss of production) to be sustained as a result of breach or
default of the Agreement on the part of either party.
ARTICLE 8. OTHER TERMS AND CONDITIONS
The terms and conditions of the Seller's GENERAL TERMS AND CONDITIONS
OF SALE attached hereto as Exhibit A shall be amended as follows: (the
amendments are numbered to correspond to the numbered terms.)
8.1 The first sentence is deleted and following substituted: "the
Seller warrants only that the Products conform to the
description and specification."
8.2 The Buyer agrees to inspect the Products within 30 days of
delivery. The period for the Buyer to make claims for
nonconformity with the specification is extended to 60 days
from delivery.
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8.3 Clause 3 Increased Costs is modified to delete the phrase
"shall be for the Buyer's account" and to replace it with
"shall be negotiated and agreed by the Seller and the Buyer as
to who bears such increase."
8.9 Clause 9 Entire Agreement is deleted in its entirety.
8.12 Delete and substitute: "This contract shall be governed by and
construed in accordance with the law of the State of
California."
8.13 Substitute San Francisco, California as the location for
arbitration under the contract.
ARTICLE 9. CONFIDENTIALITY
The parties hereto agree that they will keep secret and retain in
strictest confidence, and that each party shall not, without the prior written
consent of the other party, make available or disclose to any third party or use
for the benefit of itself or any third party, any information relating to the
price and quantity terms of this agreement, unless the disclosure of such
information was required by a valid order of a court or other governmental body,
was otherwise required by law, or was necessary to establish the rights of
either party under this agreement.
ARTICLE 10. ENTIRE AGREEMENT
This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. The undersigned
parties who are parties to such October Agreement hereby amend and restate the
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October Agreement to read in its entirety as set forth in this Agreement, all
with the intent and effect that the October Agreement shall hereby be terminated
and entirely replaced and superseded by this Agreement. This Agreement
supersedes all other prior agreements and understandings between the parties
with respect to such subject matter.
Any other terms and conditions which are not stipulated hereof shall be
negotiated separately and confirmed in writing by the Seller and the Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives in duplicate, each duplicate
to be considered an original and each party to retain one duplicate, as of the
day and year first above written.
FIBERSTARS, INC. MITSUBISHI INTERNATIONAL
CORPORATION
/s/ XXXXX X. XXXXXXX /s/ XXXXXX XXXXX
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Xxxxx X. Xxxxxxx Xxxxxx Xxxxx,
President and C.E.O. Senior Vice President
Gen. Mgr., Textile Division
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GENERAL TERMS AND CONDITIONS OF SALE
1. WARRANTIES: Seller warrants only that the Goods conform to the
description stated on the face hereof. NO OTHER WARRANTY, EXPRESS OR
IMPLIED, IS MADE BY SELLER, INCLUDING WARRANTY OF MERCHANTABILITY AND
WARRANTY THAT THE GOODS ARE FIT FOR ANY PARTICULAR PURPOSE. No agent,
employee or representative of Seller has any authority to bind Seller
to any affirmation, representation or warranty concerning the Goods not
expressly included herein.
2. CLAIMS: Any claim of non-conformity with respect to the Goods or their
shipment or delivery is waived, unless made in writing by Buyer to
Seller, specifically stating the details of such non-conformity, within
a reasonable time not exceeding thirty (30) days after Buyer receives
the Goods. Seller's liability shall in no event be greater in amount
than the purchase price of the Goods in respect of which damages are
claimed. Buyer waives any right to incidental or consequential damages.
3. INCREASED COSTS: Any increase in Seller's costs of performance after
the date stated in the box marked DATE OF CONTRACT on the face hereof
resulting from increased freight rates, increase or additional freight
surcharges, additional taxes, duties, assessments or other charges
imposed or collected by any governmental or taxing authority, increased
insurance rates, and all other additional charges relating to the sale,
loading, unloading, delivery, storage and transportation of the Goods,
shall be for Buyer's account.
4. SHIPMENT: All shipment or delivery dates are approximate. The date of
xxxx of lading shall constitute conclusive evidence of the date of
shipment. Partial shipment and/or transshipment shall be permitted. No
non-conforming tender, or delay or failure in the shipment or delivery
of any one lot shall excuse Buyer from accepting tender of any
remaining installments hereunder. In case of failure of performance by
Buyer hereunder, Seller may defer further shipments or deliveries or,
at its option, cancel this Contract as to any Goods which have not been
shipped or delivered, and any losses, liabilities, costs or expenses
resulting from such deferral or cancellation shall be for Buyer's
account.
5. INSURANCE: If this is a C.I.F. contract, one hundred ten percent (110%)
of the invoice amount shall be insured by Seller, unless otherwise
agreed herein.
6. FORCE MAJEURE: Seller shall not be liable for delay of or failure to
make shipment or delivery for any cause beyond its reasonable shipment
or delivery of the Goods. Shipment or delivery dates shall be extended
for a period equal to the time lost by reason of any such cause;
provided, however, that if any such delay exceeds ninety (90) days,
either party shall have the right to cancel this Contract with respect
to such shipment or delivery by written notice to the other party.
7. INFRINGEMENT: Seller shall not be liable to Buyer in any way for any
losses, liabilities, settlements, costs or expenses (including
attorney's fees) paid or incurred by Buyer resulting form any claim
that the Goods or their sale infringe any patent, trademark,
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copyright, design or other industrial property right of any third party
and, if Buyer has furnished the specifications, Buyer shall indemnify
and defend Seller against any and all losses, liabilities, settlements,
costs and expenses (including attorneys' fees) paid or incurred by
Seller resulting from any such claim.
8. LATE CHARGE: If any of the purchase price is not paid in full when due,
Buyer shall pay a late charge on the amount unpaid for each day from
the due date until paid in full at a rate per annum at all times equal
to five percent (5%) above the prime commercial lending rate announced
from time to time by The Chase Manhattan Bank, N.A. at its principal
New York City office; provided, however, that nothing herein shall
require the payment of any amount in excess of the maximum amount
permitted by law. Late charge shall be payable on demand.
9. ENTIRE AGREEMENT: This writing is intended by the parties as the final,
complete and exclusive expression of their agreement relating to the
subject matter hereof, and supersedes any prior agreement or
understanding between them. No waiver, amendment or modification of any
of the provisions hereof shall be effective, unless made in writing and
signed by both parties.
10. TIME FOR BRINGING ACTION: Any action by Buyer for breach of this
Contract must be commenced within one (1) year after the cause of
action has accrued.
11. NO ASSIGNMENT: Buyer shall not assign its rights or delegate its duties
under this Contract without the prior written consent of Seller.
12. GOVERNING LAW: This Contract shall be governed by and construed in
accordance with the law of the State of New York.
13. ARBITRATION: Seller and Buyer agree that any controversy or claim
arising out of or relating to this Contract, or the breach hereof,
shall be settled by arbitration in New York, New York in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association. The award of the arbitrator(s) shall be final and binding
upon the parties hereto and judgment on the award may be entered in any
court of competent jurisdiction.
14. EQUAL EMPLOYMENT OPPORTUNITY: The Equal Opportunity Clause set forth in
Executive Order 11246, as amended (30 F.R.12319), and the Affirmative
Action Clause set forth in the relevant federal government regulations
pertaining to government contractors and subcontractors (41 C.F.R. ss.
60-250.4 (Vietnam Veterans and Disabled Veterans) and 41 C.F.R. ss.
60-741.4 (Handicapped)), are incorporated by reference herein.
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Addendum
The payment term of this contract is Net 10 days after invoice date.
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