{"id":42492,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-and-supply-agreement-avanex-corp-and-concord.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-and-supply-agreement-avanex-corp-and-concord","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-and-supply-agreement-avanex-corp-and-concord.html","title":{"rendered":"License and Supply Agreement &#8211; Avanex Corp and Concord Micro-Optics Inc."},"content":{"rendered":"<pre>\n\n                               AVANEX CORPORATION\n                          LICENSE AND SUPPLY AGREEMENT\n\n        This License and Supply Agreement (the \"Agreement\") is made and entered\ninto by and between Avanex Corporation, a California corporation with principal\noffices at 42501 Albrae Street, Fremont, California 94538 (\"Avanex\"), and\nConcord Micro-Optics, Inc. a California corporation with principal offices at\n_____________________________ (\"CMI\"). The parties hereby agree as follows:\n\n        1. Scope. In order to avoid repetitive negotiations, this Agreement\nshall apply to all purchase orders placed by Avanex and accepted by CMI (or the\nJV Co., as defined below) during the Term (as defined below) for the Products\ndescribed in Exhibit A attached hereto (\"Product(s)\"), as such Exhibit may be\namended from time to time to add products upon the mutual agreement of the\nparties. This Agreement shall apply to all current or future divisions,\nsubsidiaries, affiliates, locations and operations of Avanex, wherever located.\nIt is acknowledged and agreed by the parties that as soon as practicable after\nthe execution of this Agreement, CMI will establish and control a Sino-foreign\njoint venture company in Tianjin, China (the \"JV Co.\") organized under the laws\nof the People's Republic of China (\"PRC\") and that CMI shall, within ten (10)\ndays of the establishment of the JVCo, cause the JV Co. to execute, and its\nboard of directors to ratify, the Acknowledgment and Agreement, in the form set\nout in Exhibit B attached hereto, pursuant to which the JV Co. shall become a\nparty hereto. CMI and the JV Co. shall be jointly and severally liable for all\nobligations of CMI contained herein.\n\n   \n        2. Term. The term of this Agreement shall commence upon execution of\nthis Agreement by Avanex and CMI (the \"Effective Date\") and shall continue for\nfive (5) years (the \"Initial Term\"). Subject to a maximum aggregate of ten (10)\nyears), this Agreement shall be automatically renewed for additional one (1)\nyear period (the \"Extended Term\") unless either party gives written notice of\ntermination at least sixty (60) days before the end of the Initial Term or any\nanniversary thereof or unless sooner terminated in accordance with the\nprovisions hereof (collectively the \"Extended Term\"). \"Term\" shall mean the\nInitial Term and the Extended Term, if applicable.\n    \n\n        3. Terms and Conditions.\n\n                (a) This Agreement contains the exclusive terms and conditions\nwhich apply to all purchases, notwithstanding any purchase order, acknowledgment\nor other business forms transmitted by CMI, the JV Co. or Avanex. All CMI and JV\nCo. acknowledgments and invoices must reference this Agreement and the\napplicable Avanex purchase order.\n\n   \n                (b) This Agreement does not constitute a purchase order.\nPurchases hereunder shall be made only by Avanex's purchase orders issued by\nAvanex's purchasing department. Avanex shall be liable under this Agreement only\nfor those Products covered by such purchase orders. CMI agrees to provide\nAvanex with complete access to the JV Co.'s cost accounting books and records\nrelating to Avanex during normal business hours, to prepare reports reasonably\nrequested by Avanex, and to take all other reasonable actions to assist Avanex\nin performing Avanex's accounting responsibilities under U.S. generally\naccepted accounting principles.\n    \n\n        4. Products and Prices.\n\n\n\n                                        1\n\n\n\n                (a) The Products covered by this Agreement and the prices for\nsuch Products are as specified in Exhibit A. Prices are set forth in United\nStates Dollars.\n\n                (b) CMI represents that to the best of its knowledge this\nAgreement does not violate provisions of the Robinson-Patman Act.\n\n                (c) [*]\n\n                (d) The prices set forth in Exhibit A are inclusive of any and\nall applicable taxes including any PRC and U.S. federal, state and local VAT\nsales, use and like taxes and any such applicable taxes shall be detailed on\nCMI's invoice. If Avanex complies with the U.S. statutory resale tax certificate\nrequirements of states where appropriate, no sales, use or like taxes shall be\nincluded in the price.\n\n                (e) The parties agree that any new or modified Products will be\npriced based upon assumed volumes and complexity factors employed in the pricing\nmodel of that Product that most closely resembles the new or modified Products\nto be priced.\n\n        5. F.O.B. Point. Unless otherwise specifically provided on the face of\nthe purchase order, Products shall be delivered on an F.O.B. destination basis\nto the Avanex's designated plant in Fremont, California, at which time title\nshall pass to Avanex. CMI shall insure and ship such items at Avanex's expense.\nOrders which are to be drop shipped to Avanex's customers will be designated on\nthe purchase order as F.O.B. CMI, at CMI's manufacturing facility. Avanex will\nspecify carrier, insurer and freight terms.\n\n        6. Invoices.\n\n                (a) Upon shipment of Products ordered, CMI will submit to Avanex\nan invoice showing invoice number and date, remit to address, the purchase order\nnumber, Avanex part number and revision, quantity of each Product, unit prices,\neach applicable tax and extended totals.\n\n                (b) Avanex shall pay each invoice by the later of:\n\n                        (i) Payment Due Date which is defined as thirty (30)\ndays after the receipt of invoice, or\n\n                        (ii) thirty (30) days after receipt of the shipment.\n\n        7. Ordering and Delivery.\n\n                (a) Avanex shall provide CMI with a non-binding rolling twelve\n(12) month forecast on a [*] basis of the quantity of each Product desired.\nActual Avanex orders shall be submitted by telecopier or in writing on Avanex's\nstandard purchase order form and shall\n\n\n\n                                        2\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\nspecify the purchase order number, Avanex part number for each Product, quantity\nof Product desired, the locations to which the Product is to be delivered, and\nthe date or dates desired for delivery of the ordered Product to such locations.\n\n                (b) CMI agrees to accept each order for the full quantity of\nProduct ordered. After receipt of an order from Avanex, CMI shall notify Avanex\nwithin seventy-two (72) hours if CMI cannot meet the desired delivery date(s)\nand will propose alternative delivery date(s). If, within seven (7) business\ndays after notification of any proposed alternative delivery date(s), Avanex\ndoes not notify CMI of Avanex's rejection of CMI's alternative delivery date(s),\nor otherwise reach agreement with CMI on the agreed delivery date, then the\norder shall be considered confirmed with the alternative delivery date(s)\nbecoming the agreed delivery date. CMI's failure to so notify Avanex shall\nconstitute CMI's agreement to Avanex's desired delivery date(s), which will then\nbecome the agreed delivery date. CMI shall send Avanex a formal written\nacknowledgment of each Avanex purchase order within five (5) business days. All\ndelivery dates and the terms \"deliver\" and \"delivery\" as used herein, shall\nrefer to delivery to Avanex's designated plant in Fremont, California, or in the\ninstance of any order to be drop shipped to Avanex's customer, delivery by CMI\nto the freight carrier specified in such order, or if no carrier is specified,\nto the carrier selected by CMI.\n\n                (c) Notwithstanding anything set forth above to the contrary,\nall Avanex requested delivery dates providing the minimum number of business\ndays lead time specified in Exhibit A of this Agreement for a Product (the \"Lead\nTime\") shall be the Agreed delivery date. The Lead Time set forth on Exhibit A\nmay be adjusted by CMI: (i) upon thirty (30) days written notice with respect to\nincreases in Lead Times; or immediately upon written notice to Avanex with\nrespect to decreases in Lead Times. CMI agrees to use its best efforts to\nminimize the Lead Times set forth on Exhibit A.\n\n                (d) CMI shall meet the agreed delivery dates and understands\nthat time is of the essence with respect to its performance of its obligations\nhereunder. CMI agrees that its obligations to use its best efforts include an\nobligation to diligently monitor its performance against its delivery\nobligations hereunder and agrees that any failure to perform such monitoring\nobligations shall constitute a material default of this Agreement.\n\n                (e) CMI agrees to maintain safety stock of component parts for\nthe quantities of Products set forth on Exhibit C hereto as amended by Avanex\nfrom time to time by written notice to CMI.\n\n                (f) Certain long lead time components (the \"Long Lead\nComponents\") are set forth on Exhibit D. Avanex shall update Exhibit D from time\nto time by written notice to CMI. CMI agrees to use Avanex's forecast of\nProducts volumes and its material planning system to calculate the quantities of\nsuch Long Lead Components which should be ordered in advance of Avanex's\nissuance of a purchase order for Products hereunder in order for CMI to meet the\nLead Times set forth on Exhibit A. CMI shall prepare a report setting forth the\nquantities of such Long Lead Components which must be ordered, the quantities\nalready on order in advance of Avanex's issuance of purchase orders.\n\n        8. Avanex Requested Changes.\n\n                (a) Avanex may, at any time, make changes in writing to any of\nthe following:\n\n                        (i) applicable drawings, designs or specifications,\n\n                        (ii) method of shipment or packing, and\n\n\n\n                                        3\n\n\n                        (iii) place of delivery.\n\nIf the change causes an increase in the cost or the time required by CMI for\nperformance of any purchase order issued under this Agreement and CMI so\nnotifies Avanex in writing, then if Avanex wishes such change to be made, an\nequitable adjustment will be made in the price or delivery schedule or both and\nthe Agreement and\/or any applicable purchase order will be modified accordingly\nin writing. With respect to rework orders, the parties shall negotiate in good\nfaith to determine the price of such changes. Claims by CMI for adjustment due\nto an Avanex change order must be made within fifteen (15) days from the date of\nCMI's receipt of the change order; such period may be extended upon the written\napproval of Avanex.\n\n                (a) If Avanex decides to cancel any definitive purchase order,\nAvanex must give CMI forty-five (45) days' notice before CMI's committed\ndelivery date. If the time period remaining between the then current date and\nCMI's committed delivery date for a Product is less than forty-five (45) days,\nAvanex must pay CMI [*] of the canceled amount.\n\n                (b) If the time period remaining between the then current date\nand CMI's committed delivery date for a Product is more than forty-five (45)\ndays, then Avanex may with respect to each purchase order and at no charge make\nany changes to delivery dates and unit quantities for such Product.\n\n        9. Over Shipments. Avanex will pay only for maximum quantities ordered,\nunless Avanex has issued a change order authorizing an over shipment prior to\nsuch delivery by CMI.\n\n        10. Early Shipments and Late Shipments. For Products delivered five (5)\nor more days before or seven (7) or more days after the agreed delivery date,\nAvanex may:\n\n                (a) Return such Products to CMI (or to the JV Co., as the case\nmay be) freight collect,\n\n                (b) Accept such Products with payment based upon the agreed\ndelivery date and not the date of receipt by Avanex, or\n\n                (c) In the event of late shipments, charge CMI (or the JV Co.,\nas the case may be) a late delivery fee equal to [*] of the agreed delivery\namount for each full week of delay.\n\n        11. Modifications to Agreed Delivery Dates. CMI shall at all times use\nits best efforts to deliver the unit quantity of Products to be delivered to\nAvanex on the agreed delivery date. If, after employing such best efforts, CMI\nfirst determines that it will be unable to deliver the unit quantity of Products\nto be delivered to Avanex on the Agreed delivery date, then CMI shall notify\nAvanex within twenty-four hours of such determination, and the parties will\nnegotiate in good faith new agreed delivery date, predicated on CMI's continued\nuse of such best efforts, for such Product(s). Any partial deliveries resulting\nfrom such re-scheduling shall be separately invoiced by CMI and paid for by\nAvanex without regard to subsequent deliveries.\n\n        12. [*] to Capacity; Scarce Material.\n\n   \n               (a)  CMI grants to Avanex [*] with respect to the JV Co.'s\ncapacity to manufacture Products and fill purchase orders. Avanex shall be\nentitled to exercise [*] if at all, upon submission to CMI of every [*]\nforecast, but in no event more than [*] times per year, measured from the date\nAvanex first exercises [*]. CMI covenants to use its best efforts to produce the\nProducts efficiently and in significant quantity.\n    \n\n               (b)  In the event that any material is in such short supply such\nthat CMI is unable to fill Avanex's orders for Products in full (\"Scarce\nMaterial\"), at a minimum CMI agrees to allocate Scarce Material to Avanex and\nto utilize any materials in short supply to make Products under whichever of\nthe following formulas would allocate to Avanex the greatest amount of Scarce\nMaterial:\n\n                    (i)   In the proportion of Avanex's orders for Products\ncontaining such Scarce Material to all of CMI's customers' orders for product\ncontaining such Scarce Material for the month in question;\n\n                    (ii)  In the proportion of Avanex's forecast for Products\ncontaining such Scarce Material to all of CMI's customers' forecasts for\nproducts containing such Scarce Material for the month in question; or\n\n                    (iii) The most favorable allocation formula which CMI\nutilizes with any other customer.\n\n\n                                        4\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n        13. Packing, Shipping Documents and Markings.\n\n                (a) Shipping materials and practices must meet or exceed general\nindustry standards and must be adequate to protect the Products from damage,\ncontamination, or degradation during shipment and during unpacking at the\ndestination. Electrostatic Discharge (ESD) protection must extend to\nintermediate container level. Intermediate containers shall contain no loose\npacking materials or Styrofoam.\n\n                (b) Shipments of Product having multiple date codes at the\nintermediate container level must have the unit containers organized to afford\neasy identification and separation, Therefore:\n\n                        (i)     unit containers may not contain mixed date\n                                codes;\n\n                        (ii)    intermediate containers may not contain more\n                                than two (2) date codes; and\n\n                        (iii)   shipments may not contain more than five (5)\n                                date codes.\n\n                (c) Intermediate containers shall be marked with a label on the\nend listing:\n\n                        (i)     CMI's name, part number, part description;\n\n                        (ii)    total quantity of Product in the container, date\n                                code(s) by quantity; and\n\n                        (iii)   Avanex's part number and purchase order number\n\n                (d) The maximum acceptable weight for the shipping container is\n45 pounds. Skids or pallets must be used with containers that are unsuitable for\nmanual handling.\n\n        14. Acceptance and Quality.\n\n                (a) Avanex may inspect the Products, materials and components\nheld by JV Co. for Avanex at JV Co.'s facilities during JV Co.'s regular\nbusiness hours. Avanex and its representatives shall observe all reasonable\nsecurity and handling measures of the JV Co. while on JV Co.'s premises.\n\n\n\n                                        5\n\n\n                (b) CMI covenants to Avanex that Products sold to Avanex will\nmeet or exceed Avanex's product qualification requirements. Subject to the\nprovisions of Section 14(f) below, CMI will provide the following types of\nquality inspections in accordance with its own published manual and, when\napplicable, Avanex provided specifications, drawings and other such\ndocumentation:\n\n                        (i)     incoming material inspections;\n\n                        (ii)    in-process inspections;\n\n                        (iii)   vendor control; and\n\n                        (iv)    final inspection.\n\n                (c) CMI may not make parts substitutions without the prior\nwritten approval of Avanex. CMI shall direct all such requests for parts\nsubstitutions to Avanex's Contract Administrator, as set forth below.\n\n                (d) Avanex may inspect, and based upon the results of such\ninspection, reject or accept Products delivered hereunder in a reasonable period\nof time. Any Products rejected shall be returned to CMI (or JV Co.) upon\nAvanex's receipt of a return materials authorization (\"RMA\") for such return.\nCMI shall issue RMA numbers within two (2) business days. Avanex shall return\nProducts in the original shipping container, if possible; otherwise Avanex shall\nuse a similar shipping container and such container shall be marked with the RMA\nnumber. CMI shall repair or replace such rejected Products within five (5)\nbusiness days. With respect to Products to be repaired or replaced, the date\ndetermined in the prior sentence shall be deemed an Agreed Delivery Date for\npurposes of this Agreement, subject to modification in accordance with Section\n11 hereof.\n\n                (e) Personnel designated by Avanex may freely communicate with\ndesignated personnel of CMI (or JV Co.) with respect to technical assistance and\nexchanges of information. Avanex's designated personnel shall, as reasonable,\nprovide technical assistance and answer questions for JV Co. personnel from time\nto time, provided, however, that such communication shall not permit CMI to\ndeviate from any of its obligations under this Agreement.\n\n        15. End of Term Orders. Purchase orders placed by Avanex prior to the\ntermination of this Agreement for which the Agreed delivery date are after the\ntermination of this Agreement but not more than sixty (60) days after the end of\nthis Agreement shall continue to be governed by the terms and conditions of the\nAgreement.\n\n        16. [Intentionally Omitted]\n\n        17. [Intentionally Omitted]\n\n        18. Risk of Loss or Damage. CMI shall be responsible for any loss or\ndamage to Product due to CMI's failure to properly preserve, package, or handle\nthe Product. In addition, notwithstanding any prior inspection, and only with\nrespect to Products delivered to Avanex's designated plant in Fremont,\nCalifornia: (i) CMI will bear all risk of loss, damage or destruction to the\nordered Products until delivery to Avanex; and (ii) CMI will also bear the risk\nof loss with respect to any Products rejected by Avanex and returned to CMI,\nexcept that Avanex will be responsible for any damage to rejected or unaccepted\nProduct occasioned by the willful misconduct or negligence of its employees\nacting within the scope of their employment.\n\n        19. Import\/Export and Product Licenses.\n\n\n\n                                        6\n\n\n                (a) CMI shall provide all information under its control which is\nnecessary or useful for Avanex to obtain any export or import licenses required\nfor Avanex to ship or receive Product(s), including, but not limited to, U.S.\ncustoms certificates of delivery, affidavits of origin, and U.S. Federal\nCommunications Commissions identifier, if applicable.\n\n                (b) With respect to Product(s), each party shall comply with\nexport laws enacted by its respective government, and the regulations\nthereunder.\n\n                (c) CMI shall be solely responsible for obtaining any and all\nlicenses required for production of Products in China, and CMI covenants to use\nits best efforts to obtain such licenses in a prompt manner. CMI shall be\nresponsible for submitting executed versions of this Agreement to the relevant\ngovernment authorities in the PRC for approval under the Regulations of the\nPeople's Republic of China for the Administration of Technology Import Contracts\nand for registration under the Provisional Measures for the Administration of\nTrade in Connection with the Import of Technology and Equipment. CMI shall\npromptly deliver to Avanex satisfactory evidence that the approval and\nregistration have been obtained.\n\n        20. New Process Inclusion. CMI agrees to keep Avanex informed of any new\nprocess(es) or improvements to existing process(es) involved in the production\nof Products.\n\n        21. Qualification. CMI shall ensure that all Products delivered\nhereunder meet Avanex's Product and test specifications as set forth in Exhibit\nE and the Bellcore standard, as applicable. CMI shall ensure that the JV Co.\nshall receive ISO 9002 certification within [*] months of its establishment, but\nin no event later than [*]. CMI shall also ensure that the JV Co. complies with\nall PRC law in its operations including, without limitation, the Labor Law of\nthe PRC and other employment regulations.\n\n        22. Correlation. At Avanex's option, correlation of test\nprograms\/procedures between Avanex and CMI shall be completed prior to Avanex's\nfirst customer shipment (\"FCS\") of an Avanex product containing Product. In the\nevent of a conflict between test results, Avanex's test method, programs and\nanalysis shall prevail. Details and specific procedures of the correlation plan\nbetween Avanex and CMI will be as mutually defined and agreed to by the parties.\n\n        23. Programs and Services. It is the intention of the parties hereto to\nnegotiate in good faith and to enter into an agreement for the programs and\nservices described hereunder.\n\n                (a) Avanex wishes to develop with CMI a Dock to Stock Program.\nSuch program shall be designed to supply Avanex with Products that meets\nestablished quality levels and to eliminate incoming inspection.\n\n                (b) Avanex wishes to develop with CMI a Just In Time delivery\nprogram (\"JIT\"). The JIT shall be designed to supply Avanex with the Products at\nthe time at which Avanex requires such Products so as to reduce the inventory\nwhich Avanex and\/or CMI are required to retain in order to meet Avanex's\nProducts needs.\n\n        24. CMI's Communication and Report to Avanex. CMI shall establish an\ninformation infrastructure that allows Avanex freely assess the JV Co's cost,\nproduction and inventory information via electronic data exchange as soon as CMI\ncommences production for Avanex. CMI shall prepare and deliver to Avanex a\nQuarterly Report containing the following information for each Product by\nordering location:\n\n                (a) Product;\n\n                (b) quantity ordered during the quarter;\n\n\n\n                                        7\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                (c) total quantity shipped;\n\n                (d) date of each shipment with quantity, dollar amount, ship to;\nand\n\n                (e) quantity on back order.\n\nSuch Quarterly Reports shall be delivered to Avanex within thirty (30) days\nafter the end of each calendar quarter during the term of this Agreement.\n\n        25. Transfer of Information. In connection with this Agreement, Avanex\nshall provide CMI with information necessary to produce the Products. Such\ninformation transfer shall take place in the manner set forth in Exhibit F\nattached hereto. CMI acknowledges that all information to be transferred to it\nby Avanex pursuant to this Section 25 is Proprietary and Confidential\nInformation (as defined below) of Avanex subject to the obligations of\nConfidentiality in Section 26.\n\n        26. Confidential Information.\n\n                (a) CMI acknowledges that information which Avanex may disclose\nto CMI (or JV Co.) in a tangible form marked \"Confidential,\" \"Proprietary\" (or\nwith similar legend), or that is disclosed orally and confirmed in writing as\nconfidential within a reasonable time, comprises proprietary and confidential\ninformation of Avanex (\"Confidential Information\"). In addition, Confidential\nInformation shall include all designs, engineering details, schematics,\ndrawings, and specifications developed by CMI (or JV Co.) with respect to the\nProducts. If Confidential Information is orally disclosed it shall be identified\nas such at the time of disclosure and a confirmation of the confidential nature\nof the information shall be sent to the CMI (or JV Co.) within thirty (30) days\nafter the disclosure.\n\n                (b) CMI agrees not to use Confidential Information or disclose,\ndistribute or disseminate such Confidential Information to any third person\nexcept as expressly permitted under this Agreement or as expressly agreed in\nwriting by Avanex. CMI agrees to restrict access to such Confidential\nInformation to those employees, contractors or consultants of CMI or JV Co. who\nhave agreed to be bound by and have duly executed a Confidentiality Undertaking\nin the form set forth in Exhibit G. CMI shall not use such materials at a\nlocation other than at the JV Co.'s registered address in Tianjin, China without\nAvanex's prior written consent. CMI agrees to establish adequate internal\nsafeguards and otherwise use reasonable care in restricting the use and\ndissemination of any Confidential Information in order to protect against its\nunauthorized use or disclosure to any third party. CMI shall exercise the same\ndegree of care to prevent unauthorized use or disclosure of the Confidential\nInformation to others as it takes to preserve and safeguard its own confidential\ninformation, but in any event, no less than a reasonable degree of care.\n\n                (c) CMI (or JV Co.) shall be permitted to disclose to any\ngovernment, regulatory authority or court, any Confidential Information if CMI\n(or JV Co.) is required by law or judicial decree to do so for the express\npurposes of obtaining their approval to make Licensed Products in the PRC. Such\ndisclosure shall not constitute a breach of this Agreement provided that CMI\npromptly notifies Avanex when such obligation of disclosure arises to enable CMI\nto seek an appropriate protective order and to make known to the said\ngovernment, regulatory authority or court the proprietary nature of the\nConfidential Information to be disclosed and to make any applicable claim of\nconfidentiality prior to the disclosure being made and provided CMI has first\ninformed Avanex of any requirement that exists in Chinese laws, regulations or\njudicial decrees for that government, regulatory authority or court to make\nfurther disclosures of the information to any third party.\n\n\n\n                                        8\n\n\n                (d) CMI shall be relieved of this obligation of confidentiality\nto the extent any Avanex information:\n\n                        (i) was in the public domain at the time it was\ndisclosed or has become in the public domain through no fault of CMI;\n\n                        (ii) CMI can prove was known to CMI, without\nrestriction, at the time of disclosure as shown by the files of the CMI in\nexistence at the time of disclosure;\n\n                        (iii) is disclosed by CMI with the prior written\napproval of Avanex;\n\n                        (iv) CMI can prove was independently developed by CMI\nwithout any use of the Confidential Information and by employees or other agents\nof (or independent contractors hired by) CMI who have not had access to any\nConfidential Information; or\n\n                        (v) becomes known to CMI, without restriction, from a\nsource other than Avanex without breach of this Agreement by CMI and otherwise\nnot in violation of Avanex's rights.\n\n                (e) CMI acknowledges that breach of the confidentiality\nobligation would cause irreparable harm to Avanex, the extent of which would be\ndifficult to ascertain. Accordingly, CMI agrees that Avanex may seek immediate\ninjunctive relief in the event of breach of the confidentiality obligation by\nCMI or JV Co.\n\n                (f) Within seventy-five (75) business days after termination of\nthis Agreement, CMI shall promptly return all tangible materials containing such\nConfidential Information to Avanex. Concurrently with the return of such\nmaterials, CMI agrees to confirm in writing that all materials containing\nConfidential Information have been returned to Avanex by CMI.\n\n        27 License, Intellectual Property Rights\n\n                (a) For so long as this license remains in effect under PRC law,\nAvanex hereby grants to CMI and JV Co. (i) a [*] restrictive, nontransferable,\nlicense with no right to sublicense under which CMI may (A) make Licensed\nProducts (as set forth on Exhibit H) in the PRC (excluding the Hong Kong SAR,\nMacau, and Taiwan) and in the United States and use and sell Licensed Products\nworldwide, and (ii) use the Licensed Information (as set forth on Exhibit H) in\nChina and the United States. This license shall be exclusive with respect to the\nmanufacture of Licensed Products in the PRC (excluding the Hong Kong SAR, Macau,\nand Taiwan) and the use of Licensed Information in the PRC (excluding the Hong\nKong SAR, Macau, and Taiwan), but shall be nonexclusive with respect to all\nother rights and purposes and territories. The parties agree that until the [*]\nof this Agreement (unless earlier terminated), each party shall provide the\nother party information related to any revision or improvement of Licensed\nProducts or Licensed Information.\n\n                (b) Notwithstanding the foregoing, Avanex retains for itself all\nproprietary and intellectual property rights including all patent rights in and\nto all designs, engineering details, schematics, drawings, specifications and\nother similar data and Confidential Information which:\n\n                        (i) pertain to the Products; and are\n\n                        (ii) provided to CMI or JV Co. under this Agreement or\ndeveloped by CMI or JV Co. for Avanex. CMI hereby assigns to Avanex all\nproprietary and intellectual\n\n\n\n                                        9\n\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\nproperty rights, including all patent rights, in and to such designs,\nengineering details, schematics, drawings, specifications and other similar data\nand Confidential Information. Avanex shall have the sole right to file any\npatent applications thereon. CMI agrees to cooperate with Avanex and take all\nreasonable additional actions and execute such agreements, instruments, and\ndocuments as may be necessary or desirable to perfect Avanex's ownership\ninterests in accordance with the intent of this Section 27(b), including, but\nnot limited to, the execution of necessary and appropriate instruments of\nassignment.\n\n                (c) Any such information and materials which Avanex may furnish\nto CMI (or JVCo) shall be in CMI's (or JV Co.'s) possession pursuant only to a\nrestrictive, nontransferable, nonexclusive license with no right to sublicense\nunder which CMI may use such information and materials solely for the purposes\nof manufacturing, operating, servicing and repairing the Products for Avanex's\npurposes pursuant to this Agreement. Within seventy-five (75) business days\nafter termination of this Agreement, CMI shall promptly return all tangible\nmaterials containing such Confidential Information to Avanex. Concurrently with\nthe return of such materials, CMI agrees to confirm in writing that all\nmaterials containing Confidential Information have been returned to Avanex by\nCMI.\n\n                (d) CMI shall inform Avanex in writing immediately upon becoming\naware of any use, suspected use, of the Licensed Information, or any party of\nit, by any other party. In the event of any actual, any threatened or potential\nlitigation against Avanex alleging infringement of a third party's patent or any\nother rights of such third party arising from the use of the Licensed\nInformation, CMI shall give immediate written notice to Avanex. Avanex shall\nbear all legal and economic responsibilities for defending or otherwise dealing\nwith such actual or threatened litigation and CMI shall in a timely manner\nprovide Avanex with all assistance as may be reasonably requested by Avanex from\ntime to time. CMI agrees not to be involved in any discussions with any third\nparty relating to nor to take any steps relating to or to compromise any\nlitigation or threatened or potential litigation relating to the Licensed\nInformation, without the prior written consent of Avanex.\n\n        28. Documentation Reproduction\n\n                Subject to CMI's strict compliance with Sections 26 and 27 of\nthis Agreement, CMI may reproduce documentation, including Confidential\nInformation, in the performance of its obligations under this Agreement.\n\n        29. Avanex-unique Components. Except in accordance with Section 27, CMI\nwill not ship any Product that is developed by, in conjunction with, or in\naccordance with specifications from Avanex (\"Avanex-unique Components\"), to any\nthird party without the express, prior written consent of Avanex.\n\n        30. Inventions.\n\n                (a) All discoveries, improvements and inventions, whether or not\npatentable, conceived or first reduced to practice, as those terms are used\nbefore the U.S. Patent and Trademark Office, in the performance of this\nAgreement by Avanex personnel shall be the sole and exclusive property of Avanex\nand Avanex shall retain any and all rights to file any patent applications\nthereon.\n\n                (b) Subject to the provisions of Section 27(b) hereof, all\ndiscoveries, improvements and inventions conceived or first reduced to practice,\nas those terms are used before the U.S. Patent and Trademark Office, whether or\nnot patentable, in the performance of this Agreement by CMI's personnel shall be\nthe sole and exclusive property of CMI and CMI shall retain any and rights to\nfile any patent applications thereon.\n\n\n\n                                       10\n\n\n                (c) Subject to the provisions of Section 27(b) hereof, all\ndiscoveries, improvements and inventions conceived or first reduced to practice,\nas those terms are used before the U.S. Patent and Trademark Office, whether or\nnot patentable, in the performance of this Agreement jointly by CMI personnel\nand Avanex personnel (the \"Joint Inventions\"), shall be the property jointly of\nCMI and Avanex, each party having [*] interest therein. Each party shall be\nentitled to use, exploit, transfer, and grant licenses with respect to its\ninterest in Joint Inventions without notice or accounting to the other party.\n\n        31. CMI's Process Changes. CMI agrees that it will not invoke any\nchanges in process, design or method of manufacturing that might affect form,\nfit or function of the Products, including without limitation, changes in\nperformance, maintenance procedures, interchangeability, interconnectability,\nreliability or manufacture compatibility of Products during the term of this\nAgreement without Avanex's prior written consent. CMI further agrees that any\ncontemplated changes in process or method of manufacturing will be submitted to\nAvanex in writing, (the original notification to be provided to the\nAdministrator and copies to Avanex personnel as may be required), in sufficient\ntime to enable Avanex a reasonable opportunity in which to evaluate such\nchanges. If said design change, in Avanex's opinion, necessitates evaluation by\nAvanex of compatibility with Avanex's systems, CMI, upon request from Avanex,\nwill provide Avanex prototype units of Product for evaluation. Such design\nchange, once approved by Avanex, shall cause the revision level of the Product\nto be rolled. CMI WILL NOT IMPLEMENT SUCH CHANGES WITHOUT THE PRIOR WRITTEN\nCONSENT OF AVANEX.\n\n        32. Discontinuance or Reduction of Production of a Product. CMI may\nreduce or discontinue its production of a Product upon [*] prior written notice\nto Avanex, so long as CMI does not offer such Product to any other of its\ncustomers after it stops offering such Product to Avanex. Within sixty (60) days\nafter receipt by Avanex of written notice of such discontinuance (\"Notice\nDate\"), Avanex may place and CMI shall accept all orders unless otherwise\nprecluded by any law, regulation, court judgment, order or permit, for delivery\nover a [*] period following Notice Date with respect to any Product adversely\naffected by such Product discontinuance. As a material inducement to entering\ninto this Agreement, CMI represents to Avanex that after diligent inquiry CMI is\naware of no Product or process involved in the production of any Product which\nviolates any law, regulation, judgment, order or permit.\n\n        33. Safety Standards and Legal Compliance.\n\n                (a) CMI will use its best efforts to provide information,\nparticipate in inspections and perform all other actions reasonably requested by\nAvanex to receive and\/or maintain safety certifications by governmental\nagencies, to the extent required or applicable.\n\n                (b) CMI agrees to notify Avanex of any post-sale warnings,\nretrofits or recalls which CMI implements with respect to any suppliers,\nmaterials, and processes that are used by or for, or included in the Product(s).\n\n                (c) CMI will promptly notify Avanex with respect to any matter\nto which CMI receives or develops knowledge with respect to the safe and\nreliable operation of the Product(s).\n\n        34. Insurance. During the Term of this Agreement, CMI, at its sole cost\nand expense, shall carry and maintain insurance adequate to cover its\nmanufacturing operations, product liability (naming Avanex as loss payee) and\nits other obligations under this Agreement. CMI shall provide Avanex with a\nCertificate of Insurance stating that such insurance policies are in full force\nand effect. CMI shall require its insurer(s) to give Avanex thirty (30) days\nwritten notice before the policy or policies are canceled or materially altered.\n\n\n\n                                       11\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n        35. Warranty.\n\n                (a) CMI represents and warrants to Avanex that for a period of\n[*] from the quality assurance date stamped on each Product delivered hereunder,\nall Products delivered: (i) are new, unused, will be free from defects in\nworkmanship and manufacture; and (ii) will conform to the product and test\nspecifications incorporated by reference in Exhibit D and the Bellcore\nstandards, as applicable. CMI shall assign to Avanex any warranties with respect\nto material. CMI MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR\nIMPLIED WITH RESPECT TO PRODUCT(S), AND EXPRESSLY DISCLAIMS ANY IMPLIED\nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. All\nwarranties run to the benefit of Avanex. Avanex's approval of CMI's materials\nwill not relieve CMI of any warranties.\n\n                (b) Defective or non-conforming Products shall be returned to\nCMI (or JV Co.) upon Avanex's receipt of a RMA for such return. CMI shall issue\nRMA numbers within two (2) business days. Avanex shall return Products in the\noriginal shipping container, if possible, otherwise Avanex shall use a similar\nshipping container and such container shall be marked with the RMA number. CMI\nshall repair or replace such rejected Products within five (5) business days.\nWith respect to Products to be repaired or replaced, the date determined in the\nprior sentence shall be deemed an Agreed Delivery Date for purposes of this\nAgreement, subject to modification in accordance with Section 11 hereof.\n\n                (c) CMI shall not unreasonably withhold its approval of Avanex's\noffer to correct itself, or to reimburse a third party to correct, the defective\nor non-conforming Products and charge CMI with the cost of such correction.\n\n                (d) Any repaired or replaced Products shall be subject to the\nwarranty set forth above. Out of warranty service shall be provided at CMI's\nstandard terms, conditions, and rates.\n\n                (e) Subject to Avanex's rights with respect to Section 35(c) and\nSection 36 hereof such repair or replacement shall be Avanex's exclusive remedy\nand CMI's sole liability for any breach of the warranty set forth in this\nSection.\n\n        36. Indemnification and Hold Harmless. Subject to the limitations\nprovided in Section 39 of this Agreement, in connection with the transactions\ncontemplated by this Agreement CMI agrees to indemnify and hold Avanex harmless\nfrom and against any claims, actions, losses, damages, costs and expenses\n(including without limitation, reasonable attorneys' fees) arising from any of\nthe following:\n\n                (a) breach or violation of any import or export laws of China or\nthe United States;\n\n                (b) breach of any representation or warranty made by CMI in this\nAgreement;\n\n                (c) claim brought by any third party that CMI's (or the JV\nCo.'s) (i) manufacture of Products or Licensed Products or (ii) use of the\nLicensed Technology, violates any intellectual property rights of such party or\nanother third party; or\n\n                (d) claim brought by any third party against Avanex for any\nloss, damage, cost, expense or liability arising from defects in the Products\nmanufactured by CMI (or the JV Co.).\n\n        37. Cancellation for CMI's Default.\n\n\n\n                                       12\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                (a) Avanex may, at any time prior to delivery, by written\nnotice, cancel this Agreement in whole or in part, or any purchase order issued\nhereunder if, in Avanex's good faith opinion, CMI has:\n\n                        (i) failed to make delivery of Product on an Agreed\nDelivery Date as such date may be modified under Section 11 hereof;\n\n                        (ii) other than as provided in the previous clause,\nfailed to replace or correct defective items in accordance with the provisions\nof Sections 14 or 35 above;\n\n                        (iii) failed to provide adequate assurance of\nperformance within five (5) business days of having received Avanex's notice of\na failure by CMI to make progress under this Agreement so as to endanger\nperformance in accordance with its terms;\n\n                        (iv) becomes bankrupt or insolvent, suffers a receiver\nto be appointed or makes an assignment for the benefit of creditors; or\n\n                        (v) is in material default of any obligations, except as\nset forth in Section 37(a)(i), (ii), (iii) and (iv), above, under this\nAgreement, and such default is not cured within thirty (30) days of Avanex's\nnotice of such default.\n\n                (b) If this Agreement or any purchase order under this Agreement\nis canceled for CMI's default, Avanex may, in addition to all legal and\nequitable remedies that may be available to Avanex, procure upon such terms and\nin such manner as Avanex may deem appropriate, goods or services similar or\nsubstantially similar to those canceled. CMI will then be liable to Avanex for\nany excess costs occasioned thereby.\n\n                (c) If all or a portion of this Agreement or any purchase order\nis canceled for CMI's default, Avanex may, in addition to all other remedies\nthat may be available to Avanex, require CMI to transfer title and to deliver to\nAvanex, in the manner and to the extent directed by Avanex, provided that Avanex\npays for such property pursuant to Section 37(e), below:\n\n                        (i) any completed items not yet delivered; and\/or\n\n                        (ii) any partially completed items and materials that\nCMI (or JV Co.) has produced or acquired for the performance of the terminated\nportion.\n\n                (d) CMI will, upon direction of Avanex, protect and preserve the\nproperty listed in this Section that is in the possession of CMI or JV Co.\nNothing in this Section 37 is intended to excuse CMI from proceeding with any\nuncanceled portion of this Agreement or purchase order(s) under this Agreement.\n\n                (e) Avanex will pay CMI the following amounts for property for\nwhich title has been transferred and delivery completed under Section 37(c),\nand\/or for any services performed under Section 37(d), above:\n\n                        (i) the contract price for any completed Products or\nservices rendered in accordance with this Agreement;\n\n                        (ii) the actual costs incurred by CMI which are properly\nallocable under recognized commercial accounting practices to the terminated\nportion of this Agreement, plus a fair and reasonable profit on such costs (as\nreasonably agreed to by the parties) with respect to partially completed\nProducts and materials that CMI has produced or acquired for the performance of\nthe terminated portion of this Agreement. With respect to work in progress, if\nit\n\n\n\n                                       13\n\n\nappears that CMI would have sustained a loss on the order, no profit will be\nallowed, and an adjustment will be made reducing the amount of the settlement to\nreflect the indicated rate of loss; or\n\n                        (iii) the reasonable costs incurred by CMI in protecting\nproperty in which Avanex has or may acquire an interest under this Section 37.\n\n                (f) Payments made under this Section 37 may not exceed the\naggregate price specified in this Agreement or purchase order(s) under this\nAgreement less payments otherwise made or to be made. Any amounts payable for\nproperty lost, damaged, stolen or destroyed prior to delivery to Avanex will be\nexcluded from amounts otherwise payable to CMI under this Section 37.\n\n                (g) Both parties agree to negotiate in good faith the settlement\nof any dispute that may arise under this Agreement. Pending settlement of any\ndispute, CMI agrees to continue to fabricate and deliver Products under the\nterms of this Agreement as directed by Avanex.\n\n        38. Termination for Convenience.\n\n                (a) At any time for convenience, Avanex may terminate work under\nthis Agreement in whole or in part, by [*] written notice to CMI specifying the\nextent to which performance of work is terminated and the time at which such\ntermination becomes effective. Upon such termination, CMI will to the extent and\nat the times specified by Avanex, stop all work under this Agreement or purchase\norder under this Agreement, place no further orders for materials to complete\nthe work, assign to Avanex all CMI's interests under terminated subcontracts and\norders, settle all claims thereunder after obtaining Avanex's approval, protect\nall property in which Avanex has or may acquire an interest, and transfer title\nand make delivery to Avanex of all articles, materials, work in process, and\nother things held or acquired by CMI in connection with the terminated portion\nof this Agreement. CMI will proceed promptly to comply with Avanex's\ninstructions respecting each of the foregoing without awaiting settlement or\npayment of its termination claim. Within thirty (30) days after such\ntermination, CMI may submit to Avanex its written claim for termination charges,\nin the form and with the certifications prescribed by Avanex. Failure to submit\nsuch a claim within thirty days will constitute an unconditional and absolute\nwaiver of all claims and a release of all Avanex's liability arising out of the\ntermination. The parties may agree upon the amount to be paid CMI for such\ntermination. If they fail to agree, Avanex will pay CMI the following amounts:\n\n                        (i) the contract price for any completed Products or\nservices rendered in accordance with this Agreement;\n\n                        (ii) the actual costs incurred by CMI which are properly\nallocable under recognized commercial accounting practices to the terminated\nportion of this Agreement, plus a fair and reasonable profit on such costs (as\nreasonably agreed to by the parties) with respect to partially completed\nProducts and materials that CMI has produced or acquired for the performance of\nthe terminated portion of this Agreement. With respect to work in progress, if\nit appears that CMI would have sustained a loss on the order, no profit will be\nallowed, and an adjustment will be made reducing the amount of the settlement to\nreflect the indicated rate of loss; or\n\n                        (iii) the reasonable costs incurred by CMI in making\nsettlement and in protecting property in which Avanex has or may acquire an\ninterest.\n\n                (b) Payments made under this Section 38 may not exceed the\naggregate price specified in this Agreement or purchase order(s) under this\nAgreement less payments otherwise\n\n\n\n                                       14\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\nmade or to be made. Any amounts payable for property lost, damaged, stolen or\ndestroyed prior to delivery to Avanex will be excluded from amounts otherwise\npayable to CMI under this Section 38.\n\n                (c) Cancellation by Avanex under this Section 38 of any purchase\norder shall not excuse CMI's performance with respect to any other Agreement or\nPurchase order.\n\n        39. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER AVANEX OR CMI OR JV\nCO. BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT\nOF THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING\nNEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY\nOF SUCH DAMAGES AND EVEN IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.\nNOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT IS MEANT TO ALTER THE\nRIGHTS OR REMEDIES OF EITHER PARTY AGAINST THE OTHER PARTY IN ANY ACTION IN LAW\nOR EQUITY BROUGHT BY A THIRD PARTY WITH REGARD TO ANY CLAIM MADE BY SUCH THIRD\nPARTY.\n\n        40. Force Majeure. Neither party shall be liable for any delay or\nfailure in performance hereunder caused by acts of God or other causes beyond\nthe parties' control and without fault or negligence. In the event CMI fails to\ndeliver Product due to such causes, Avanex may suspend this Agreement in whole\nor in part for the duration of the delaying cause, and at Avanex's option, buy\nthe Products elsewhere and deduct from any purchase order to CMI the quantity so\npurchased. CMI shall resume performance under this Agreement immediately after\nthe delaying cause ceases and, at Avanex's option, extend the Initial Term\nand\/or Term for a period equivalent to the length of time the excused delay\nendured.\n\n        41. Equal Opportunity. The \"Equal Opportunity Clause\" set forth in 41\nC.F.R. section 60-1.4(a), the clause labeled \"Affirmative Action of Disabled\nVeterans and Veterans of the Vietnam Era\" set forth in 41 C.F.R. section\n60-250.4 and the clause labeled \"Affirmative Action for Handicapped Workers\" set\nforth in 41 C.F.R. section 60-741.4 are hereby incorporated by reference and all\nreferences in such clauses to \"the contractor\" shall be deemed to be references\nto CMI.\n\n        42. Government Contracts. If any purchase order under this Agreement is\nissued for any purpose that is either directly or indirectly connected with the\nperformance of a prime contract with the U.S. government or a subcontract\nthereunder, the terms that the Federal Acquisition Regulations or other\nappropriate regulations required to be inserted in contracts or subcontracts,\nexcept for those terms pertaining to cost and pricing data and cost accounting\nstandards, will be deemed to apply to any purchase order under this Agreement.\nCMI will promptly notify Avanex if CMI becomes, or with the passage of time will\nbecome, ineligible to perform contracts or subcontracts under U.S. Federal\nAcquisition Regulations. Avanex shall use its best efforts to notify CMI of any\nprovision that is so passed on.\n\n        43. Survival. Notwithstanding the termination or expiration of the\nInitial Term of this Agreement or any Extended Term thereof, it is acknowledged\nand agreed that those rights and obligations which by their nature are intended\nto survive such expiration or earlier termination shall survive including,\nwithout limiting the foregoing, following Sections: 26, 27(b) and (c), 28, 29,\n30, 35, 39, 44, 45, 47 and 48, for a period of ten (10) years. All obligations\nto return information and materials shall survive the termination of this\nAgreement.\n\n        44. Relationship of Parties.\n\n\n\n                                       15\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                (a) Neither party shall have, or shall represent that it has,\nany power, right or authority to bind the other party, or to assume or create\nany obligation or responsibility, express or implied, on behalf of the other\nparty or in the other party's name.\n\n                (b) Nothing stated in this Agreement shall be construed as\nconstituting CMI (or JV Co.) and Avanex as partners, joint venturers, or as\ncreating the relationships of employer and employee, franchiser and franchisee,\nmaster and servant, or principal and agent.\n\n        45. Publicity. Neither Avanex or CMI shall publicize or disclose the\nexistence or terms and conditions of this Agreement, or any transactions\nhereunder, without the express, prior written consent of the other, except as\nmay be required under the rules and regulations of the United States Securities\nExchange Commission.\n\n        46. Administration.\n\n                (a) Avanex and CMI shall each assign an individual to administer\nthis Agreement throughout this term:\n\n                      Avanex's Administrator shall be:\n\n                             Mr. Jessy Chao\n                             Avanex Corporation\n                             42501 Albrae Street\n                             Fremont, California 94538\n                             (510) 360-0693\n\n                      CMI's Administrator shall be:\n\n                             --------------------------\n                             --------------------------\n                             --------------------------\n\n\n                (b) Each party shall inform the Administrator of the other in\nwriting of a change of Administrator or such Administrator's address or\ntelephone number.\n\n                (c) Any notice required or permitted to be given under this\nAgreement shall be given in writing and shall be addressed to Avanex or CMI, as\nthe case may be, at the address set forth above or at such other address as may\nbe given in writing and: (i) by airmail, postage prepaid, certified mail, return\nreceipt requested; (ii) transmitted by facsimile with a confirming copy\nimmediately mailed thereafter; or (iii) delivered by a messenger or overnight\ndelivery service.\n\n        47. General. This Agreement and all of its referenced Exhibits, which\nare incorporated herein by reference as if set forth in full, together with all\npurchase orders, but not the preprinted terms and conditions thereof, constitute\nthe entire agreement between the parties with respect to the subject matter\nhereof and supersede all prior proposals, negotiations and communications, oral\nor written, between the parties with respect to the subject matter hereof. No\ndeviation from these provisions shall be binding unless in writing and signed by\nan authorized representative of the party to be charged.\n\n                Except as specifically set forth herein, all rights and remedies\nconferred under this Agreement or by any other instrument or law shall be\ncumulative and may be exercised singularly or concurrently. Failure by either\nparty to enforce any provision shall not be deemed a waiver of future\nenforcement of that or any other provision. In the event that any portion of\nthis\n\n\n\n                                       16\n\n\nAgreement shall be held to be unenforceable, the remaining portions of this\nAgreement shall remain in full force and effect and the parties shall negotiate\nsubstitute provisions for those provisions held to be unenforceable that most\nnearly effect the parties intent in entering into this Agreement. In the event\nany provisions of this Agreement shall be held unenforceable against the JV Co.\nunder PRC law, CMI shall nevertheless be obligated to perform such obligation\nunless the same shall be unenforceable under California law.\n\n        48. Governing Law and Dispute Resolution. This Agreement is entered into\nat Fremont, California and shall be governed by and construed in accordance with\nthe laws of the State of California, USA, except that body of law of California\nlaw concerning conflicts of law. Any dispute, controversy or claim arising out\nof or relating to this Agreement shall be finally and exclusively resolved by\nsubmission to a single arbitrator in San Francisco, California in accordance\nwith the commercial arbitration rules of the American Arbitration Association.\nThe prevailing party shall be entitled to reasonable attorneys' fees and costs.\nThe arbitrator shall set a limited time period and establish procedures designed\nto reduce the cost and time for discovery while allowing the parties an\nopportunity, adequate in the sole judgment of the arbitrator, to discover\nrelevant information from the opposing parties about the subject matter of the\ndispute. The arbitrator shall rule on motions to compel or limit discovery and\nshall have the authority to impose sanctions, including attorneys' fees and\ncosts, to the same extent as a court of competent law or equity, should the\narbitrator determine that the discovery was refused or objected to without\nsubstantial justification. The arbitrator shall have the authority to grant any\nequitable and legal remedies that would be available in any judicial proceeding\ninstituted under California substantive law to resolve a dispute. Any award\nissued by the arbitrator shall be final and binding on the parties and\nenforceable against them. Any award issued against the JV Co. shall be\nenforceable by any competent court having jurisdiction over the JV Co. in\naccordance with the terms of the NEW YORK (UN) CONVENTION FOR THE RECOGNITION,\nAND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS.\n\n        49. Assignments.\n\n                (a) The rights, duties and obligations of CMI (or JV Co.) under\nthis Agreement may not be assigned in whole or in part by operation of law or\notherwise without the prior express written consent of Avanex, and any attempted\nassignment of any rights, duties or obligations hereunder without such consent\nshall be null and void. This Agreement shall be binding on the parties and their\nrespective successors and permitted assigns.\n\n                (b) Avanex shall not assign its rights duties and obligations\nunder this Agreement without the prior written approval of CMI, which approval\nCMI shall not unreasonably withhold, provided, however, that Avanex may assign\nthis Agreement without the prior written approval of CMI to a person or entity\ninto which Avanex has merged or which has otherwise succeeded to all or\nsubstantially all of its business and assets, and which has assumed in writing\nor by operation of law its obligations under this Agreement.\n\n        50. Exhibits. The following is the list of Exhibits which are attached\nhereto and hereby incorporated into this Agreement by reference:\n\n                A.      Product Description, Production Pricing and Lead Times\n                B.      Form of Acknowledgement and Agreement\n                C.      Safety Stock\n                D.      Long Lead Components\n                E.      Product and Test Specifications\n                F.      Method of Information Transfer\n                G.      Confidentiality Undertaking\n\n\n\n                                       17\n\n\n                H.      Licensed Products and Licensed Information\n\n        51. Language. For purposes of submission of this Agreement to the\nrelevant PRC authorities, this Agreement may be translated into Chinese. Such a\ntransaction shall be for this purpose only and the English text shall be only\nthe authoritative and binding text.\n\n        52. CMI Board Seat. During the period that this Agreement is in effect,\nCMI shall offer Avanex the option of appointing its designee to the board of\ndirectors of the CMI and the JV Co.\n\n        IN WITNESS WHEREOF, the parties have caused this Agreement to executed\nby their duly authorized representatives.\n\nAccepted for Avanex:\n\nAVANEX CORPORATION\n\nBy: \/s\/ Walter Alessandrini\n\nName: Walter Alessandrini\n      -------------------\n\nTitle: CEO\n       ---\n\nDate: 5\/8\/1999\n      --------\n\nAccepted for CMI:\n\nCONCORD MICRO-OPTICS, INC.\n\nBy: \/s\/ Jeanette J. Zhou\n\nName: Jeanette J. ZHOU\n      ----------------\n\nTitle: CEO\n       ---\n\nDate: 05\/24\/99\n      --------\n\n\n\n                                       18\n\n\n\n                                    Exhibit A\n\nProducts:\n\n[*]\n\nPrice:\n\n   \nThe prices for the Products shall be based on the JV Co.'s direct manufacturing\ncosts plus a markup subject to good faith negotiations and agreement between\nthe parties, and shall be reviewed [*]. CMI shall guarantee Avanex a [*]\ndiscount to the lowest prices at which it offers Products to third parties. CMI\nshall use reasonable commercial efforts to continually reduce the unit pricing\nand discount pricing of the Products.\n    \n\n   \nAvanex shall be allowed the full benefit of any and all lower prices, after\ngiving effect to Avanex's [*] discount, contained in any other agreement that\nmay hereafter be entered into by CMI. CMI shall notify Avanex immediately of\nany such lower prices, and shall make the same available to Avanex at [*]\ndiscount for as long as such prices are made available to such other similar\ncustomers.\n    \n\n   \nCMI shall allow Avanex to review its JV Co.'s production cost information, if\nrequested by Avanex. Avanex shall have the right to demand a refund or credit\ntoward future purchases if it finds any price discrepancy. [*] shall be [*]\nresponsible for all costs and expenses relating to an inspection of cost\ninformation, including travel, lodging and meals.\n    \n\nLead Times:\n\nTo be determined on a product-by-product basis.\n\n\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                                    Exhibit B\n\n                                     Form of\n                          Acknowledgment and Agreement\n                               to the Terms of the\n                 Avanex Corporation License and Supply Agreement\n\n______________________________, a Sino-foreign joint venture organized and\nexisting under the laws of the People's Republic of China, with a principal\nplace of business at Tianjin, People's Republic of China (\"JV Co.\"), hereby\nagrees to fully comply with all obligations of Concord Micro-Options, Inc.\n(\"CMI\") as set out under the Avanex Corporation License and Supply Agreement\n(the \"Agreement\"), entered into between Avanex Corporation and CMI and duly\nexecuted by said parties on ___________, 1999, including without limitation the\nprovisions relating to protection of Confidential Information set forth in\nSection 26 of the Agreement.\n\nJV Co. acknowledges receipt of an executed copy of the Agreement and agrees to\ndeliver an executed original of this Acknowledgment and Agreement to Avanex\nwithin seven (7) days after the execution hereof.\n\nAccepted for JV Co. by its duly authorized legal representative:\n\n\nBy:\n   ----------------------------------\n\nName:\n     --------------------------------\n\nTitle:  Legal Representative\n      -------------------------------\n\nDate:\n     --------------------------------\n\n\n\n\n\n                                    Exhibit C\n\nSafety Stock:\n\nTo be determined subsequently.\n\n\n\n\n\n                                    Exhibit D\n\nLong Lead Components:\n\n[*]\n\n\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                                    Exhibit E\n\nProduct and test Specifications:\n\n [To be provided subsequently by Avanex]\n\n\n\n\n\n                                    Exhibit F\n\nMethod of Information Transfer:\n\nAvanex will furnish two copies, in the English language, of the Licensed\nInformation to CMI, to the extent such information exists in tangible form.\n\nAvanex will provide [*] engineers and\/or technicians dispatched by CMI up to [*]\nhours of theoretical and practical training at Avanex's facilities. The parties\nshall make a good faith effort to ensure that this training shall be adequate to\nensure that qualified CMI engineers and technicians can manufacture, at Avanex's\nfacilities, samples of the Licensed Products that meet current standards.\n\nUpon the reasonable request of CMI, Avanex will dispatch one engineer or\ntechnician for up to two weeks to inspect the production process at MCI's\nfacility and to provide further training.\n\nIf CMI requires further training or consultation beyond the above allowable\ntime, CMI will pay Avanex at [*] per hour per trainer.\n\nCMI shall be solely responsible for all costs and expenses relating to the\ntravel, lodging and meals for the purpose of technical transfer.\n\n\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n                                    Exhibit G\n\n                           Confidentiality Undertaking\n\nIn consideration of my employment and\/or the continuance of my employment by the\nJV Co. [or engagement by the JV Co. in the event of a consultant], I hereby\nundertake to Avanex Corporation (\"Avanex\"), which has provided certain\nConfidential Information (as defined below) to the JV Co. as follows:\n\n1.      I hereby recognize that unpublished patentable or unpatentable items of\n        technical or non-technical information such as, but not limited to,\n        materials, tooling, equipment, designs, processes, formulae, projects,\n        products, costs, financial data, software programs and subroutines,\n        source and object code, algorithms, trade secrets, designs, technology,\n        know-how, processes, data, ideas, techniques, utility models,\n        inventions, works of authorship, formulas, business and product\n        development plans, customer lists, research or development, production,\n        manufacturing and engineering processes, prices and pricing structures,\n        marketing and sales information, product lines and any information and\n        materials relating thereto, or which is received in confidence by or for\n        the JV Co. or used by Avanex in its business constitute valuable trade\n        secrets or confidential information (referred to hereafter collectively\n        as \"Confidential Information\") which are the property of Avanex and I\n        agree not to disclose or use the same other than in the business of the\n        JV Co. Specifically, I agree:\n\n        (a)     not to, directly or indirectly, disclose or make available to\n                anyone or use outside of the JV Co. during and after my\n                employment, any Confidential Information without the prior\n                written consent of an authorized official of Avanex;\n\n        (b)     to safeguard all Confidential Information at all times so it is\n                not exposed to, or taken by, unauthorized persons, and when\n                entrusted to me will exercise my best efforts to assure its\n                safe-keeping;\n\n        (c)     upon termination of my employment, to deliver all materials,\n                including personal notes and reproductions relating to the JV\n                Co. or Avanex business in my possession or control, with full\n                understanding that compensation and benefits may be withheld if\n                I fail to comply; and\n\n        (d)     to prevent any non-employees from viewing those portions of the\n                JV Co. plant on which any Confidential Information is in use\n                without the prior express written consent of an authorized\n                official of Avanex.\n\n2.      With respect to all work done by me in relation to the JV Co., I hereby\n        agree that all right, title and interest in and to all ideas which I\n        have conceived or may conceive and all inventions, improvements or\n        discoveries which I have made or may make, whether\n\n\n\n\n\n        conceived or made during working hours or otherwise and whether alone or\n        jointly with others, are the sole property of the JV Co. or Avanex (as\n        they have agreed between them). With respect to all patent conceptions\n        and implementing projects, I also agree that during and after\n        termination of my employment, I and my heirs or representatives, shall,\n        as requested, assist in the preparation and execution of all patent\n        applications and other instruments, as well as execute all requested\n        assignments and do all other things which Avanex deems necessary to\n        obtain or to maintain Chinese, and foreign patents and to protect Avanex\n        rights and interests.\n\n----------------------------  ---------    -------------------------------------\nName of Employee\/Consultant   Date         Signature of Employee\/Consultant\n\nACCEPTED BY OFFICER OF THE JV CO. ON BEHALF OF AVANEX\n\nBy:\n   ----------------------------------\n\nTitle:\n      -------------------------------\n\nDate:\n     --------------------------------\n\n\n\n\n\n                                    Exhibit H\n\nLicensed Products:\n\n[*]\n\nLicensed Information:\n\nTechnical information and manufacturing process deemed by Avanex (in its\ndiscretion) to be necessary or desirable for the production of the Licensed\nProducts\n\n\n\n----------\n* Certain information on this page has been omitted and filed separately with\nthe Commission. Confidential treatment has been requested with respect to the\nomitted portions.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6807],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9613,9619],"class_list":["post-42492","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-avanex-corp","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42492","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42492"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42492"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42492"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42492"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}