EXHIBIT 10.2
MANAGEMENT SERVICES AGREEMENT
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This MANAGEMENT SERVICES AGREEMENT (the "Agreement") is dated as of the 1st
day of April, 1997, by and between Epitaxx, Inc. ("Epitaxx"), a Delaware
corporation with its principal offices at 0 Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx and Nippon Sheet Glass Co., Ltd. ("NSG"), a corporation organized under
the laws of Japan with its principal offices at NSG Tokyo Xxxx., 0-0, 0-xxxxx,
Xxxxxx, Xxxxxx-xx, Xxxxx, 000 Xxxxx.
WHEREAS, Epitaxx, in order to pursue the effective business development and
synergy of Epitaxx's business and NSG's Fiber Optics related business, is
desirous of obtaining from NSG the full benefit and support derived from their
affiliation, including the provision of certain management services to Epitaxx
by NSG on a basis the parties believe will permit Epitaxx to minimize costs
associated with the operation and administration of its business; and
WHEREAS, Epitaxx and NSG, with full regard for and subject to the
obligations of each of them and each of their officers and directors pursuant to
applicable law, are desirous of cooperating in the formulation and
implementation of principles and policies and the provision to Epitaxx by NSG of
management services specified herein, including personnel, banking and credit
services; productivity improvement advice; and assistance in the development of
relationships in Asia and Europe with potential customers for Epitaxx products;
and
WHEREAS, Epitaxx and NSG have entered into a Master Cooperation Agreement
contemporaneously herewith, pursuant to which NSG and Epitaxx have agreed to
enter into this Agreement and NSG has agreed to provide to Epitaxx certain
services all as set forth herein and in such Master Cooperation Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
set forth herein and in the Master Cooperation Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Provision of Management Services to Epitaxx by NSG
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(a) The management services to be provided to Epitaxx by NSG are set forth
on Schedule A hereto (the "Management Services"). NSG will use such
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resources as it deems necessary to effect and provide those services
to be provided by it.
(b) In connection with the provision of Management Services to Epitaxx by
NSG, NSG shall use its best efforts to obtain any consents of third
parties which may be necessary to allow NSG to perform such Management
Services.
(c) The Management Services to be provided by NSG and/or the compensation
to be paid by Epitaxx to NSG for the provision of the Management
Services may be amended from time to time by written consent of
Epitaxx and NSG, which consent shall amend Schedule A hereto.
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2. Epitaxx Responsibilities
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Epitaxx shall provide such information to NSG as NSG shall request from
time to time to enable NSG to perform the Management Services hereunder.
3. Compensation
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(a) As consideration for the Management Services rendered by NSG in
accordance with this Agreement, Epitaxx shall pay to NSG a mutually
agreed upon fee of not less than 0.5% and not more than 1.00% of Net
Sales, as such term is defined in Paragraph 3(b) below, which will be
payable semi-annually on October 1 and April 1 of each year with
respect to Management Services provided and Net Sales generated in the
previous six (6) month period. In the event that any tax withholding
is required at the time of payment of such fee Epitaxx shall provide
NSG with a certificate documenting such withholding requirement.
Unless otherwise agreed all payments shall be made in U.S. Dollars to
such account of NSG or any affiliated company as NSG shall direct.
(b) "Net Sales" shall mean the aggregate invoiced sales prices of Epitaxx
products sold to all customers less, to the extent such amounts are
included in the invoiced sales price, taxes, shipping costs (including
freight and insurance), and other governmental charges paid for and
separately identified on the invoice. Additional allowances will be
permitted for (i) cash, trade and/or quantity discounts (other than
for prompt payment) actually allowed and (ii) amounts repaid or
credited by reason of rejection or return of goods, rebates,
wholesaler chargebacks or retroactive price reductions.
4. Contact Persons
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Each of Epitaxx and NSG shall appoint one or more individuals who shall
serve as contact persons for purposes of carrying out this Agreement. Such
contact persons shall be authorized to act on behalf of their respective party
as to the matters pertaining to this Agreement.
5. Term of Agreement
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The initial term of this Agreement will commence on April 1, 1997 and
terminate on March 31, 2000. After the initial term, this Agreement will be
automatically renewed for successive three (3) year periods unless one of the
parties gives written notice to the other party that it desires to terminate
this Agreement and such written notice is received by the other party no later
than thirty (30) days prior to the end of the initial term or any subsequent
term of this Agreement.
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6. Independent Relationship
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This Agreement shall not create and shall not be construed to create any
relationship of agency, partnership or employment between Epitaxx and NSG.
Epitaxx and NSG are and shall remain independent parties.
7. Miscellaneous
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(a) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing, shall be addressed to the receiving
party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered
by hand, (ii) made by telex, telecopy or facsimile transmission, (iii)
sent by overnight courier, or (iv) sent by registered or certified
mail, return receipt requested, postage prepaid.
If to Epitaxx:
Epitaxx, Inc.
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
If to NSG:
Nippon Sheet Glass Co., Ltd.
NSG Tokyo Xxxx.
0-0, 0-xxxxx, Xxxxxx
Xxxxxx-xx, Xxxxx, 000 XXXXX
Attention: Xxxxx Xxxxxxxx, General Manager,
Fiber Optics Division
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time
of the delivery thereof to the receiving party at the address of such
party set forth above, (ii) if made by telex, telecopy or facsimile
transmission, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or
certified mail, on the 5th business day following the day such mailing
is made.
(b) Entire Agreement. This Agreement embodies the entire agreement and
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understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not
expressly set forth in this Agreement shall affect, or be
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used to interpret, change or restrict, the express terms and
provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
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Agreement may be modified or amended only by written agreement
executed by all parties hereto.
(d) Waivers and Consents. No waiver of the terms and provisions of this
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Agreement or consent for the departure therefrom shall be deemed to be
or shall constitute a waiver or consent with respect to any other
terms or provisions of this Agreement, whether or not similar. Each
such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
(e) Assignment. The rights and obligations under this Agreement may not
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be assigned by either party hereto without the prior written consent
of the other party, except that NSG may assign it rights hereunder to
any other company of which it is the direct or indirect owner of a
controlling interest.
(f) Benefit. All statements, representations, warranties, covenants and
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agreements in this Agreement shall be binding on the parties hereto
and shall inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this Agreement
shall be construed to create any rights or obligations except among
the parties hereto, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and obligations of the
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parties hereunder shall be construed in accordance with and governed
by the law of the State of New Jersey, without giving effect to the
conflict of law principles thereof.
(h) Arbitration. Any controversy, dispute or claim arising out of or in
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connection with this Agreement, or the breach, termination or validity
hereof, shall be settled by final and binding arbitration to be
conducted by an arbitration tribunal in the State of New Jersey,
pursuant to the rules of the American Arbitration Association. The
arbitration tribunal shall consist of three arbitrators. The party
initiating arbitration shall nominate one arbitrator in the request
for arbitration and the other party shall nominate a second in the
answer thereto within thirty (30) days of receipt of the request. The
two arbitrators so named will then jointly appoint the third
arbitrator. If the answering party fails to nominate its arbitrator
within the thirty (30) day period, or if the arbitrators named by the
parties fail to agree on the third arbitrator within sixty (60) days,
the office of the American Arbitration Association Trenton, New Jersey
shall make the necessary appointments of such arbitrator(s). The
decision or award of the arbitration tribunal (by a majority
determination, or if there is no majority, then by the determination
of the third arbitrator, if any) shall be final, and judgment upon
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such decision or award may be entered in any competent court or
application may be made to any competent court for judicial acceptance
of such decision or award and an order of enforcement. In the event
of any procedural matter not covered by the aforesaid rules, the
procedural law of the State of New Jersey shall govern.
(i) Jurisdiction and Service of Process. Any legal action or proceeding
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with respect to this Agreement shall be brought in the courts of the
State of New Jersey or of the United States of America for the
District of New Jersey. By execution and delivery of this Agreement,
each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each of the parties hereto irrevocably consents to
the service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by certified
mail, postage prepaid, to the party at its address set forth in
Section 7(a) hereof.
(j) Severability. In the event that any court of competent jurisdiction
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shall determine that any provision, or any portion thereof, contained
in this Agreement shall be unenforceable in any respect, the remaining
provisions of this Agreement shall nevertheless remain in full force
and effect.
(k) Headings and Captions. The headings and captions of the various
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subdivisions of this Agreement are for convenience of reference only
and shall in no way modify, or affect the meaning or construction of
any of the terms or provisions hereof.
(l) No Waiver of Rights, Powers and Remedies. No failure or delay by a
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party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall
operate as a waiver of any such right, power or remedy of the party.
No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, shall preclude such
party from any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of
such party to pursue other available remedies. No notice to or demand
on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any
other or further action in any circumstances without such notice or
demand.
(m) Counterparts. This Agreement may be executed in one or more
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counterparts, and by different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Epitaxx and NSG have caused this Agreement to be
executed by their duly authorized officers, under seal, as of the date first
specified above.
EPITAXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
NIPPON SHEET GLASS CO., LTD.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx,
Title: General Manager, Fiber Optics Division
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Schedule A
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1. NSG to provide credit support to Epitaxx in such form as shall be
determined from time to time, including but not limited to letters of
credit, guarantees, bonds and other credit instruments at a cost not
to exceed LIBOR plus two percent (2%).
2. NSG shall provide to Epitaxx the services of specialized personnel and
bear a portion of their compensation as may from time to time be
requested by Epitaxx.
3. NSG to provide Epitaxx with advice, information and technology related
to productivity improvement, including, without limitation, quality
control and quality assurance, as may from time to time be requested
by Epitaxx.
4. NSG to provide Epitaxx with assistance in the development of
relationships with potential customers for Epitaxx products in Asia
and Europe, as may from time to time be requested by Epitaxx.
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