Exhibit 10.1
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
DEVELOPMENT CONTRACT AGREEMENT
1. PREAMBLE
This Agreement, dated the ___ day of August, 1999, is by and between XXXX
ASSOCIATES, INC., a corporation organized and existing under the laws of the
Commonwealth of Massachusetts with its principal offices at 0 Xxxxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as "XXXX") and OPLINK
COMMUNICATION INC., a corporation organized and existing under the laws of the
State of California with its principal offices at 0000 Xxxxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxx (hereinafter referred to as "OPLINK").
2. AGREEMENT
2A. XXXX hereby agrees to design, develop and build [ * ] Ion Beam Assisted
Vacuum Deposition Systems (the "[ * ] SYSTEMS") which will be used to produce
bandpass filters for OPLINK under this Development Contract Agreement. The [ * ]
SYSTEMS and their associated processes shall be the property of XXXX.
2B. The [ * ] SYSTEMS shall have as their goal the capability of producing
bandpass filters for the Dense Wavelength Division Multiplexing (DWDM)
application with the design goals listed in Exhibit A.
2C. XXXX shall use its best efforts to complete development of the [ * ] SYSTEMS
within six months of the date of this Development Contract Agreement.
2D. Once development of the [ * ] SYSTEMS is complete, XXXX agrees to give
OPLINK the first priority for the coating capacity of the [ * ] SYSTEMS. In the
event that OPLINK's filter requirements do not demand the full capacity of the [
* ] SYSTEMS, XXXX may use the [ * ] SYSTEMS to meet other coating needs.
2E. OPLINK agrees to pay XXXX the sum of $[ * ] in advance for bandpass filters
produced in the completed [ * ] SYSTEMS, $[ * ] shall be due and payable upon
execution of this agreement, and the remaining $[ * ] shall be paid over the
following [ * ] months, at a rate of $[ * ] per month.
2F. XXXX agrees to give OPLINK a discount of [ * ]% of the filter purchase price
for filters coated in the [ * ] SYSTEMS (in addition to the discount OPLINK
currently receives on filters produced in the original SYSTEM, the SECOND
SYSTEM, the THIRD SYSTEM and the FOURTH SYSTEM). The discount shall continue
until the accumulated total discount amount from filters produced in all [ * ]
systems reaches $[ * ] (the total prepayment amount). When this occurs, the
discount will cease.
2G. XXXX agrees to provide proper maintenance and technology improvement at its
own cost to the [ * ] SYSTEMS in order to maintain its capability to produce
high quality coatings for bandpass filters.
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
1
3. SECURITY INTEREST
Until the aggregate price discounts received from XXXX equals $[ * ] , OPLINK
shall retain a security interest in the [ * ] SYSTEMS, and the right to
immediate possession thereof, but can seek to enforce such interest only in the
event of a.) the Dissolution and Liquidation of XXXX or b.) XXXX'x breach of the
Agreement either via its refusal to use its best efforts to provide Supplies to
meet OPLINK's Orders or via its failure to negotiate pricing in good faith. This
security interest shall be subordinate to any security interests granted by XXXX
to XXXX'x commercial bank and to the Small Business Administration. Prior to
such taking, in the event of XXXX'x breach of the Agreement as described in this
paragraph, if XXXX repays the outstanding balance of the $[ * ] payment to
OPLINK in cash within 30 days of receiving written notification from OPLINK of
such breach. XXXX'x obligation to repay such balance to OPLINK shall be
complete, and OPLINK shall have no further security interest in the pledged
assets. XXXX shall, from time to time, take any act and execute and deliver any
document reasonably requested by OPLINK (including a UCC-1 financing statement)
to transfer, create, perfect, preserve, protect and/or enforce this security
interest. As the outstanding balance of the payments is reduced through price
discounts, the Parties may from time to time agree to adjust the amount of
pledged assets to reflect the reduced liability.
4. DEFINITIONS
The following definition shall apply to terms as used in this Development
Contract Agreement:
4A. [ * ] SYSTEMS: Ion Beam Assisted Vacuum Deposition System shall be capable
of high yield production of filters with specifications as agreed between the
parties.
4B. Development Time: The period beginning with the execution of this agreement
and ending with the delivery for acceptance testing of the first filter
prototype to OPLINK.
4C. Coating Capacity: The coating output of the [ * ] SYSTEMS over the normal
two shift operation.
4D. Filter Purchase Price: The price of a bandpass filter as agreed by OPLINK
and XXXX.
4E. Dissolution and Liquidation: As used in paragraph 3, this refers to the
complete or substantially complete cessation of manufacturing operations, under
any ownership. For the purposes of this Development Contract Agreement, it
excludes any change of ownership of the corporation, or any financial
reorganization, provided manufacturing operations continue.
5. APPLICABLE LAW
The laws of the Commonwealth of Massachusetts shall apply to this Agreement.
XXXX and OPLINK recognize that time is of the essence in their performance under
this Agreement.
for Xxxx Associates, Inc. for Oplink Communication, Inc.
By: /s/ illegible By:
---------------------------- ------------------------------
Title: President Title:
---------------------------- ------------------------------
Date: Date:
---------------------------- ------------------------------
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
2
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
DEVELOPMENT CONTRACT AGREEMENT
1. PREAMBLE
This Agreement, dated the 14th day of April, 1999, is by and between XXXX
ASSOCIATES, INC., a corporation organized and existing under the laws of the
Commonwealth of Massachusetts with its principal offices at 0 Xxxxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as "XXXX") and OPLINK
COMMUNICATION INC., a corporation organized and existing under the laws of the
State of California with its principal offices at 0000 Xxxxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxx (hereinafter referred to as "OPLINK").
2. AGREEMENT
2A. XXXX hereby agrees to design, develop and build an Ion Beam Assisted Vacuum
Deposition Systems (the "FOURTH SYSTEM") which will be used to produce bandpass
filters for OPLINK under this Development Contract Agreement. The FOURTH SYSTEM
and its associated processes shall be the property of XXXX.
2B. The FOURTH SYSTEM shall have as its goal the capability of producing
bandpass filters for the Dense Wavelength Division Multiplexing (DWDM)
application with the design goals listed in Exhibit A.
2C. XXXX shall use its best efforts to complete development of the FOURTH SYSTEM
within six months of the date of this Development Contract Agreement.
2D. Once development of the FOURTH SYSTEM is complete, XXXX agrees to give
OPLINK the first priority for the coating capacity of the FOURTH SYSTEM. In the
event that OPLINK's filter requirements do not demand the full capacity of the
FOURTH SYSTEM, XXXX may use the FOURTH SYSTEM to meet other coating needs.
2E. OPLINK agrees to pay XXXX the sum of $[ * ] in advance for bandpass filters
produced in the completed FOURTH SYSTEM. $[ * ] shall be due and payable upon
execution of this agreement, and the remaining $[ * ] shall be paid over the
following [ * ] months, at a rate of $[ * ] per month.
2F. XXXX agrees to give OPLINK a discount of [ * ]% of the filter purchase price
for filters coated in the FOURTH SYSTEM (in addition to the discount OPLINK
currently receives on filters produced in the original SYSTEM, the SECOND
SYSTEM, and the THIRD SYSTEM). The discount shall continue until the accumulated
total discount amount from filters produced in all three systems reaches $[ * ]
(the total prepayment amount). When this occurs, the discount will cease.
2G. XXXX agrees to provide proper maintenance and technology improvement at its
own cost to the FOURTH SYSTEM in order to maintain its capability to produce
high quality coatings for bandpass filters.
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
3
3. SECURITY INTEREST
Until the aggregate price discounts received from XXXX equals $[ * ] , OPLINK
shall retain a security interest in the FOURTH SYSTEM, and the right to
immediate possession thereof, but can seek to enforce such interest only in the
event of a.) the Dissolution and Liquidation of XXXX or b.) XXXX'x breach of the
Agreement either via its refusal to use its best efforts to provide Supplies to
meet OPLINK's Orders or via its failure to negotiate pricing in good faith. This
security interest shall be subordinate to any security interests granted by XXXX
to XXXX'x commercial bank and to the Small Business Administration. Prior to
such taking, in the event of XXXX'x breach of the Agreement as described in this
paragraph, if XXXX repays the outstanding balance of the $[ * ] payment to
OPLINK in cash within 30 days of receiving written notification from OPLINK of
such breach, XXXX'x obligation to repay such balance to OPLINK shall be
complete, and OPLINK shall have no further security interest in the pledged
assets. XXXX shall, from time to time, take any act and execute and deliver any
document reasonably requested by OPLINK (including a UCC-1 financing statement)
to transfer, create, perfect, preserve, protect and/or enforce this security
interest. As the outstanding balance of the payments is reduced through price
discounts, the Parties may from time to time agree to adjust the amount of
pledged assets to reflect the reduced liability.
4. DEFINITIONS
The following definition shall apply to terms as used in this Development
Contract Agreement:
4A. FOURTH SYSTEM: Ion Beam Assisted Vacuum Deposition System shall be capable
of high yield production of filters with specifications as agreed between the
parties.
4B. Development Time: The period beginning with the execution of this agreement
and ending with the delivery for acceptance testing of the first filter
prototype to OPLINK.
4C. Coating Capacity: The coating output of the FOURTH SYSTEM over the normal
two shift operation.
4D. Filter Purchase Price: The price of a bandpass filter as agreed by OPLINK
and XXXX.
4E. Dissolution and Liquidation: As used in paragraph 3, this refers to the
complete or substantially complete cessation of manufacturing operations, under
any ownership. For the purposes of this Development Contract Agreement, it
excludes any change of ownership of the corporation, or any financial
reorganization, provided manufacturing operations continue.
5. APPLICABLE LAW
The laws of the Commonwealth of Massachusetts shall apply to this Agreement.
XXXX and OPLINK recognize that time is of the essence in their performance under
this Agreement.
for Xxxx Associates, Inc. for Oplink Communication, Inc.
By: /s/ illegible By: /s/ C. D. Statham
--------------------------- --------------------------------
Title: President Title: President and CEO
--------------------------- --------------------------------
Date: 4/16/99 Date: April 14th 99
--------------------------- --------------------------------
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
4
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
DEVELOPMENT CONTRACT AGREEMENT
1. PREAMBLE
This Agreement, dated the 17th day of March, 1999, is by and between XXXX
ASSOCIATES, INC., a corporation organized and existing under the laws of the
Commonwealth of Massachusetts with its principal offices at 0 Xxxxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as "XXXX") and OPLINK
COMMUNICATION INC., a corporation organized and existing under the laws of the
State of California with its principal offices at 0000 Xxxxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxx (hereinafter referred to as "OPLINK").
2. AGREEMENT
2A. XXXX hereby agrees to design, develop and build an Ion Beam Assisted Vacuum
Deposition Systems (the "THIRD SYSTEM") which will be used to produce bandpass
filters for OPLINK under this Development Contract Agreement. The THIRD SYSTEM
and its associated processes shall be the property of XXXX.
2B. The THIRD SYSTEM shall have as its goal the capability of producing bandpass
filters for the Dense Wavelength Division Multiplexing (DWDM) application with
the design goals listed in Exhibit A.
2C. XXXX shall use its best efforts to complete development of the THIRD SYSTEM
within six months of the date of this Development Contract Agreement.
2D. Once development of the THIRD SYSTEM is complete, XXXX agrees to give OPLINK
the first priority for the coating capacity of the THIRD SYSTEM. In the event
that OPLINK's filter requirements do not demand the full capacity of the THIRD
SYSTEM, XXXX may use the THIRD SYSTEM to meet other coating needs.
2E. OPLINK agrees to pay XXXX the sum of $[ * ] in advance for bandpass filters
produced in the completed THIRD SYSTEM. $[ * ] shall be due and payable upon
execution of this agreement, and the remaining $[ * ] shall be paid over the
following [ * ] months, at a rate of $[ * ] per month.
2F. XXXX agrees to give OPLINK a discount of [ * ]% of the filter purchase price
for filters coated in the THIRD SYSTEM (in addition to the discount OPLINK
currently receives on filters produced in the original SYSTEM and SECOND
SYSTEM). The discount shall continue until the accumulated total discount amount
from filters produced in all three systems reaches $[ * ] (the total prepayment
amount). When this occurs, the discount will cease.
2G. XXXX agrees to provide proper maintenance and technology improvement at its
own cost to the THIRD SYSTEM in order to maintain its capability to produce high
quality coatings for bandpass filters.
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
5
3. SECURITY INTEREST
Until the aggregate price discounts received from XXXX equals $[ * ] , OPLINK
shall retain a security interest in the THIRD SYSTEM, and the right to immediate
possession thereof, but can seek to enforce such interest only in the event of
a.) the Dissolution and Liquidation of XXXX or b.) XXXX'x breach of the
Agreement either via its refusal to use its best efforts to provide Supplies to
meet OPLINK's Orders or via its failure to negotiate pricing in good faith. This
security interest shall be subordinate to any security interests granted by XXXX
to XXXX'x commercial bank and to the Small Business Administration. Prior to
such taking, in the event of XXXX'x breach of the Agreement as described in this
paragraph, if XXXX repays the outstanding balance of the $[ * ] payment to
OPLINK in cash within 30 days of receiving written notification from OPLINK of
such breach. XXXX'x obligation to repay such balance to OPLINK shall be
complete, and OPLINK shall have no further security interest in the pledged
assets. XXXX shall, from time to time, take any act and execute and deliver any
document reasonably requested by OPLINK (including a UCC-1 financing statement)
to transfer, create, perfect, preserve, protect and/or enforce this security
interest. As the outstanding balance of the payments is reduced through price
discounts, the Parties may from time to time agree to adjust the amount of
pledged assets to reflect the reduced liability.
4. DEFINITIONS
The following definition shall apply to terms as used in this Development
Contract Agreement:
4A. THIRD SYSTEM: Ion Beam Assisted Vacuum Deposition System shall be capable of
high yield production of filters with specifications as agreed between the
parties.
4B. Development Time: The period beginning with the execution of this agreement
and ending with the delivery for acceptance testing of the first filter
prototype to OPLINK.
4C. Coating Capacity: The coating output of the THIRD SYSTEM over the normal two
shift operation.
4D. Filter Purchase Price: The price of a bandpass filter as agreed by OPLINK
and XXXX.
4E. Dissolution and Liquidation: As used in paragraph 3, this refers to the
complete or substantially complete cessation of manufacturing operations, under
any ownership. For the purposes of this Development Contract Agreement, it
excludes any change of ownership of the corporation, or any financial
reorganization, provided manufacturing operations continue.
5. APPLICABLE LAW
The laws of the Commonwealth of Massachusetts shall apply to this Agreement.
XXXX and OPLINK recognize that time is of the essence in their performance under
this Agreement.
for Xxxx Associates, Inc. for Oplink Communication, Inc.
By: /s/ illegible By: /s/ illegible
----------------------------- ------------------------------
Title: President Title: COO
----------------------------- ------------------------------
Date: 3/18/99 Date: 03-17-99
----------------------------- ------------------------------
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
6
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
DEVELOPMENT CONTRACT AGREEMENT
1. PREAMBLE
This Agreement, dated the 9th day of July, 1998, is by and between XXXX
ASSOCIATES, INC., a corporation organized and existing under the laws of the
Commonwealth of Massachusetts with its principal offices at 0 Xxxxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxxxxx (hereinafter referred to as "XXXX") and OPLINK
COMMUNICATION INC., a corporation organized and existing under the laws of the
State of California with its principal offices at 0000 Xxxxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxx (hereinafter referred to as "OPLINK").
2. AGREEMENT
2A. XXXX hereby agrees to design, develop and build an Ion Beam Assisted Vacuum
Deposition Systems (the "SECOND SYSTEM") which will be used to produce bandpass
filters for OPLINK under this Development Contract Agreement. The SECOND SYSTEM
and its associated processes shall be the property of XXXX.
2B. The SECOND SYSTEM shall have as its goal the capability of producing
bandpass filters for the Dense Wavelength Division Multiplexing (DWDM)
application with the design goals listed in Exhibit A.
2C. XXXX shall use its best efforts to complete development of the SECOND SYSTEM
within six months of the date of this Development Contract Agreement.
2D. Once development of the SECOND SYSTEM is complete, XXXX agrees to give
OPLINK the first priority for the coating capacity of the SECOND SYSTEM. In the
event that OPLINK's filter requirements do not demand the full capacity of the
SECOND SYSTEM, XXXX may use the SECOND SYSTEM to meet other coating needs.
2E. OPLINK agrees to pay XXXX the sum of $[ * ] in advance for bandpass filters
produced in the completed SECOND SYSTEM. $[ * ] shall be due and payable upon
execution of this agreement, and the remaining $[ * ] shall be paid over the
following [ * ] months, at a rate of $[ * ] per month.
2F. XXXX agrees to give OPLINK a discount of [ * ]% of the filter purchase price
for filters coated in the SECOND SYSTEM (in addition to the discount OPLINK
currently receives on filters produced in the original SYSTEM). The discount
shall continue until the accumulated total discount amount from filters produced
in both systems reaches $[ * ] (the total prepayment amount). When this occurs,
the discount will cease.
2G. XXXX agrees to provide proper maintenance and technology improvement at its
own cost to the SECOND SYSTEM in order to maintain its capability to produce
high quality coatings for bandpass filters.
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
7
3. SECURITY INTEREST
Until the aggregate price discounts received from XXXX equals $[ * ] , OPLINK
shall retain a security interest in the SECOND SYSTEM, and the right to
immediate possession thereof, but can seek to enforce such interest only in the
event of a.) the Dissolution and Liquidation of XXXX or b.) XXXX'x breach of the
Agreement either via its refusal to use its best efforts to provide Supplies to
meet OPLINK's Orders or via its failure to negotiate pricing in good faith. This
security interest shall be subordinate to any security interests granted by XXXX
to XXXX'x commercial bank and to the Small Business Administration. Prior to
such taking, in the event of XXXX'x breach of the Agreement as described in this
paragraph, if XXXX repays the outstanding balance of the $[ * ] payment to
OPLINK in cash within 30 days of receiving written notification from OPLINK of
such breach, XXXX'x obligation to repay such balance to OPLINK shall be
complete, and OPLINK shall have no further security interest in the pledged
assets. XXXX shall, from time to time, take any act and execute and deliver any
document reasonably requested by OPLINK (including a UCC-1 financing statement)
to transfer, create, perfect, preserve, protect and/or enforce this security
interest. As the outstanding balance of the payments is reduced through price
discounts, the Parties may from time to time agree to adjust the amount of
pledged assets to reflect the reduced liability.
4. DEFINITIONS
The following definition shall apply to terms as used in this Development
Contract Agreement:
4A. SECOND SYSTEM: Ion Beam Assisted Vacuum Deposition System shall be capable
of high yield production of filters with specifications as agreed between the
parties.
4B. Development Time: The period beginning with the execution of this agreement
and ending with the delivery for acceptance testing of the first filter
prototype to OPLINK.
4C. Coating Capacity: The coating output of the SECOND SYSTEM over the normal
two shift operation.
4D. Filter Purchase Price: The price of a bandpass filter as agreed by OPLINK
and XXXX.
4E. Dissolution and Liquidation: As used in paragraph 3, this refers to the
complete or substantially complete cessation of manufacturing operations, under
any ownership. For the purposes of this Development Contract Agreement, it
excludes any change of ownership of the corporation, or any financial
reorganization, provided manufacturing operations continue.
5. APPLICABLE LAW
The laws of the Commonwealth of Massachusetts shall apply to this Agreement.
XXXX and OPLINK recognize that time is of the essence in their performance under
this Agreement.
for Xxxx Associates, Inc. for Oplink Communication, Inc.
By: /s/ illegible By: /s/ illegible
----------------------------- -------------------------------
Title: President Title: President and CEO
----------------------------- -------------------------------
Date: 7/11/98 Date: 07-09-98
----------------------------- -------------------------------
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
8
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
DEVELOPMENT CONTRACT AGREEMENT
1. PREAMBLE
This Agreement, dated the ___ day of January, 1997, is by and between
Xxxx Associates, Inc., a corporation organized and existing under the laws of
the Common wealth of Massachusetts with its principal offices at 0 Xxxxxxx Xxx,
Xxxxxxxxxxxxx (hereinafter referred to as "XXXX") and Oplink Communication Inc.,
a corporation organized and existing under the laws of the State of California
with its principal offices at 0000 Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx
(hereinafter referred to as "OPLINK")
2. AGREEMENT
2A. Xxxx hereby agrees to design, develop and build an Ion beam Assisted Vacuum
Deposition System (the "SYSTEM") which will be used to produce bandpass filters
for OPLINK under this Development Contract Agreement. The SYSTEM and its
associated Processes shall be the Property of XXXX.
2B. The SYSTEM shall have as its goal the capability of producing bandpass
filters for the Dense Wavelength Division Multiplexing (DWDM) application with
the design goals listed in Exhibit A.
2C. Xxxx shall use its best efforts to complete the development of the SYSTEM
within six months of the date of this Development Contract Agreement.
2D. Once Development of the SYSTEM is complete, XXXX agrees to give OPLINK the
fist priority for the coating capacity of the SYSTEM. In the event that OPLINK's
filter requirements do not demand the full capacity of the SYSTEM, Xxxx may use
the SYSTEM to meet other coating needs.
2E. Oplink agrees to pay Xxxx the sum of $[ * ] in advance for bandpass filters
produced in the completed SYSTEM according to the payment terms defined in
Exhibit B
2F. XXXX agrees to give OPLINK a discount of [ * ]% of the filter purchase price
for filters coated in the SYSTEM. The discount shall continue until the
accumulated total discount amount reaches $[ * ] (the prepayment amount). When
this occurs, the discount will cease.
2G. XXXX agrees to provide proper maintenance and technology improvement at its
own cost to the SYSTEM in order to maintain its capability to produce high
quality coatings for bandpass filters.
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
9
3. DEFINITIONS
The following definition shall apply to terms as used in this Development
Contract Agreement:
3A. SYSTEM: Ion Beam Assisted Vacuum Deposition System shall be capable of high
yield production of filters with the specification listed in Exhibit A.
3B. Development Xxx: The period beginning with the execution of this agreement
and ending with the delivery for acceptance testing of the first filter
prototype to OPLINK.
3C. Coating Capacity: The coating output of the SYSTEM over the normal two shift
operation
3D. Filter Purchase Price: The price of a bandpass filter as agreed by OPLINK
and XXXX
4. APPLICABLE LAW
The laws of the Common wealth of Massachusetts shall apply to this Agreement.
Xxxx and Oplink recognize that time is of the essence in their performance under
this Agreement.
for Xxxx Associates, Inc. for Oplink Communication Inc.
By: /s/ Illegible By: /s/ Illegible
--------------------------- ------------------------------
Title: President Title:
--------------------------- ------------------------------
Date: Date:
--------------------------- ------------------------------
10
* Certain confidential information contained
in this document, marked by brackets, has
been omitted and filed separately with the
Securities and Exchange Commission pursuant
to Rule 406 of the Securities Act of 1933,
as amended.
AMENDMENT TO DEVELOPMENT CONTRACT AGREEMENT
THIS AMENDMENT TO DEVELOPMENT CONTRACT AGREEMENT ("Amendment") is made and
entered into this 15th day of April 1996, by and between Oplink Communication
Inc., a California corporation ("Oplink"), and Xxxx Associates, Inc., a
Massachusetts corporation ("Xxxx").
WITNESSETH
WHEREAS, the parties signed that certain January, 1997 Development Contract
Agreement (the "Agreement") for the purchase and sale of filters, and now wish
to amend the same on the terms and conditions herein.
NOW THEREFORE, for good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. SECURITY INTEREST. Until the aggregate price discounts received from
Xxxx equals $[ * ] , Oplink shall retain a security interest in the System and
the right to immediate possession thereof, but can seek to enforce such interest
only in the event of a.) the Dissolution and Liquidation of Xxxx or b.) Xxxx'x
breach of the Agreement either via its refusal to use its best efforts to
provide Supplies to meet Oplink's Orders or via its failure to negotiate pricing
in good faith. This security interest shall be subordinate to any security
interests granted by Xxxx to Fleet Bank and to the Small Business
Administration. Prior to such taking, in the event of Xxxx'x breach of the
Agreement as described in this paragraph, if Xxxx repays the outstanding balance
of the $[ * ] payment to Oplink in cash within 30 days of receiving written
notification from Oplink of such breach, Xxxx'x obligation to repay such balance
to Oplink shall be complete, and Oplink shall have no further security interest
in the pledged assets. Xxxx shall, from time to time, take any act and execute
and deliver any document reasonably requested by Oplink (including a UCC-1
financing statement) to transfer, create, perfect, preserve, protect and/or
enforce this security interest. As the outstanding balance of the payment is
reduced through price discounts, the Parties may from time to time agree to
adjust the amount of pledged assets to reflect the reduced liability.
2. DEFINITIONS. "Dissolution and Liquidation", as used in paragraph 1,
refers to the complete or substantially complete cessation of manufacturing
operations, under any ownership. For the purposes of this Amendment to
Development Contract agreement, it excludes any change of ownership of the
corporation, or any financial reorganization, provided manufacturing operations
continue. The capitalized terms used and not otherwise defined herein shall have
the same definitions as set forth in the Agreement. Except as expressly provided
herein, the Agreement shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, Xxxx and Oplink have executed the Amendment as of the date
first above written.
XXXX ASSOCIATES, INC. OPLINK, INC.
By: /s/ Al Smejklewicz By: /s/ illegible
----------------------------- ---------------------------------
Al Smejklewicz
President
---------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
11
