1 Exhibit 10.76 CORNING CORPORATED and SPECTRAN CORPORATION --------------------------------------- THREE YEAR MULTIMODE OPTICAL FIBER SUPPLY CONTRACT --------------------------------------- Dated as of January 1, 1996 2 INDEX ----- ARTICLE 1 Sales and Purchases of Multimode Optical Fiber 1.1 Multimode Fiber Purchase Amounts 1.2 Per Meter Pricing 1.3 Shipments 1.4 Technical Specifications and Product Mix 1.5 Payment Terms 1.6 Nonexclusive Supply 1.7 Claims for Missing or Damaged Optical Fiber 1.8 ARTICLE 2 Limited Warranty 2.1 Warranty 2.2 Limitation of Warranty ARTICLE 3 Miscellaneous Provisions 3.1 "Have Made" Rights 3.2 SpecTran's Bank 3.3 Addresses 3.4 Assignability 3.5 Force Majeure 3.6 No Waiver 3.7 Governing Law 3.8 Entire Contract, Headings 3.9 Amendments 3.10 Severability 3.11 Advertising 3.12 Confidentiality ATTACHMENT A Estimated Annual Shipment Schedule ATTACHMENT B Optical Fiber Pricing and Purchase Specifications 3 Three Year Multimode Optical Fiber Supply Contract -------------------------------------------------- This Contract is made as of January 1, 1996, between Corning Incorporated, a New York corporation with its principal place of business in Corning, New York ("Corning") and SpecTran Corporation, a Delaware corporation with its principal place of business in Sturbridge, Massachusetts ("SpecTran"). WHEREAS, although SpecTran and Corning are both manufacturers of multimode optical fiber, Corning in 1996, 1997 and 1998 will not have sufficient capacity to manufacture needed quantities of such optical fiber, and SpecTran is willing to sell limited quantities of such fiber to Corning as provided in this Contract; and WHEREAS, the parties will administer this Contract in a manner so that there will be no discussions between them of general optical fiber pricing, of specific optical fiber pricing that either is offering or has offered to third parties or of proprietary aspects of optical fiber market developments; and WHEREAS, both parties agree that there is no understanding between them regarding optical fiber supply from SpecTran to Corning other than for the three years of this Contract, and only for specific amounts stated herein; and WHEREAS, prior to the date of this contract the parties have acted as normal arm's length competitors in the marketplace; and WHEREAS, during the term of this Contract the parties will continue to act as normal arm's length competitors in the marketplace; 4 -2- THEREFORE, the parties hereto agree as follows: ARTICLE 1 --------- Sales and Purchases of Multimode Optical Fiber ---------------------------------------------- 1.1 Multimode Fiber Purchase Amounts. -------------------------------- SpecTran hereby commits to sell to Corning and Corning commits to purchase from SpecTran during 1996 kilometers of multimode optical fiber. For 1997, (i) SpecTran shall have available to sell to Corning of multimode optical fiber, and (ii) Corning commits to purchase from SpecTran an amount at Corning's sole option which is of multimode optical fiber. For 1998, (i) SpecTran shall have available to sell to Corning kilometers of multimode optical fiber, and (ii) Corning commits to purchase from SpecTran an amount at Corning's sole option which is of multimode optical fiber. By way of clarification, from the preceding two sentences, Corning's only commitment, as of the date of this Contract, to purchase multimode optical fiber from SpecTran for 1997 is and for 1998 is . Without regard to the preceding paragraph of this Section 1.1 as it relates to projected 1998 multimode optical fiber quantities, prior to the end of 1996 Corning and SpecTran will either reconfirm or change the quantities stated in such paragraph for 1998, at which time such reconfirmed or changed 1998 quantities will be quantities which SpecTran will have available to sell and Corning will commit to purchase for 1998; the exact amounts to be purchased and 5 -3- sold for 1998 will be as specified quarterly as per the following paragraph. Not later than the last day of each calendar quarter in 1996, Corning and SpecTran shall agree to the number of multimode fiber kilometers which shall be SpecTran's committed supply and Corning's committed purchase for the corresponding quarter in 1997. When the 1997 fourth quarter amount is agreed to, the total agreed upon kilometers of multimode optical fiber for 1997 shall be . On a quarterly basis in 1997 the parties shall follow the same procedure for 1998 actual quarterly committed SpecTran supply and committed Corning purchase that they followed for 1997, as described in the first sentence of this paragraph. When the 1998 fourth quarter amount is agreed to, the total agreed upon kilometers of multimode optical fiber for 1998 shall be unless such range is changed by mutual agreement of the parties on the basis of the preceding paragraph. All optical fiber purchased hereunder by Corning may be resold by Corning to any third party or parties of Corning's selection. Optical fiber made for and sold to Corning hereunder shall not be subject to and shall be outside of the terms of the license agreement effective as of the first day of January 1991 by and between Corning and SpecTran. If during 1996, 1997 or 1998, in addition to the above minimum SpecTran supply commitment for that year, Corning at its sole option wants to purchase any amounts of multimode optical fiber which would exceed the total agreed upon number of kilometers for such year (as stipulated in the second and third paragraphs of this Section 1.1), then not 6 -4- less than thirty (30) days prior to its needed delivery of such additional fiber Corning shall submit its request therefore in writing to SpecTran. Within fifteen (15) days after receiving such request, SpecTran shall reply in writing, indicating which portion (or none or all) of such additional fiber which SpecTran will also commit to supply to Corning during such year. Any portion which SpecTran by such return letter agrees to supply, SpecTran shall sell to Corning at the per meter price referenced in Section 1.2. Without regard to the preceding provisions of this Section 1.1 or any other provisions of this Contract (unless the parties have mutually agreed to purchase and sell more than in accordance with the procedures provided above), at the point that Corning purchases of multimode optical fiber from SpecTran during the term hereof, then all of Corning's obligations to purchase multimode optical fiber hereunder shall cease, even if these are purchased before the end of the three year term hereof. Similarly, in such an event, SpecTran's corresponding obligation to keep multimode optical fiber available for Corning's possible purchases hereunder shall also cease. 1.2 Per Meter Pricing. ---------------- The FOB SpecTran factory per meter invoice prices to Corning for all types of multimode fiber for 1996, 1997 and 1998 will be as shown in Attachment B. 1.3 Shipments. --------- The estimated 1996 monthly shipment schedule for multimode optical fiber supplied hereunder is listed on Attachment A 7 - 5 - hereto. The 1997 schedule shall be agreed to prior to November 1, 1996 and the 1998 schedule prior to November 1, 1997. Shipments are made on an FOB basis SpecTran's plant. SpecTran, at Corning's option, will either ship optical fiber to Corning or will drop ship it to a cable customer of Corning. 1.4 TECHNICAL SPECIFICATIONS AND PRODUCT MIX. ----------------------------------------- The specifications for multimode optical fiber and the different types of optical fiber sold hereunder are included in Attachment B. 1.5 PAYMENT TERMS. -------------- All optical fiber sold hereunder shall be on the basis of payment due from Corning within forty five (45) days after SpecTran's FOB factory shipment. Interest at the rate of the current Citibank N.A., New York prime rate per month will be charged on all accounts at least ten (10) days past due, unless a lower rate is required by law. 1.6 NONEXCLUSIVE SUPPLY. -------------------- By way of clarification, nothing in this Contract precludes Corning from sourcing optical fiber from any party other than SpecTran or from SpecTran selling optical fiber to any party other than Corning. 1.7 CLAIMS FOR MISSING OR DAMAGED OPTICAL FIBER. -------------------------------------------- If for reasons attributable to SpecTran, there is physical damage to or shortage in optical fiber supplied hereunder, 8 - 6 - resulting in any way from SpecTran's handling of such fiber after it was produced by SpecTran, a return authorization shall be made and signed by the parties. The determination under the preceding sentence must be made no later than one hundred twenty days after SpecTran's FOB shipment of the fiber with the missing or damaged portion. This signed return authorization shall serve as the basis for any claim by Corning against SpecTran, for SpecTran to give Corning appropriate credit for such damaged or missing optical fiber or to replace such fiber, at Corning's option, which credit or replacement shall be Corning's sole and exclusive remedy under this Section 1.7. 1.8 A. 9 - 7 - B. 10 - 8 - ARTICLE 2 --------- Limited Warranty ---------------- 2.1 Warranty. --------- (a) SpecTran warrants that at the time of its shipment of multimode optical fiber supplied hereunder will conform to the written specifications identified in Attachment B and shall be free from defects of design and/or workmanship and shall be fit for its intended purposes (as per item 1.2 "Product Application" in Attachment B "Purchase Specification"). (b) 2.2 Limitation of Warranty. ----------------------- SpecTran guarantees and warrants all multimode optical fiber supplied by it under this Contract only to the extent set forth in this Article 2. THIS GUARANTEE CONSTITUTES THE SOLE GUARANTEE OF ANY SUCH OPTICAL FIBER PROVIDED BY SPECTRAN, AND IS IN LIEU OF ALL OTHER WARRANTIES (WHETHER 11 -9- WRITTEN, ORAL OR IMPLIED), INCLUDING BUT NOT LIMITED TO ANY OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY OTHER PURPOSE OR ANY LIABILITY FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF ANY SUCH OPTICAL FIBER. ARTICLE 3 --------- Miscellaneous Provisions ------------------------ 3.1 Grant of "Have Made" Rights. --------------------------- To the extent SpecTran is making and selling Optical Fiber to Corning under this Contract, Corning grants to SpecTran with respect to such Fiber a license under all "Have Made" rights possessed by Corning under licenses between Corning and AT&T. 3.2 SpecTran's Bank. --------------- All payments due SpecTran from Corning hereunder shall be made by wire transfer to the following SpecTran bank account: 12 - 10 - 3.3 Addresses. ---------- Formal communications under this Contract, except of an ongoing technical/commercial nature, shall be in writing, addressed as follows: If to Corning: (by mail) The Secretary Corning Incorporated One Riverside Plaza Corning, New York 14831 (by fax) Corning Incorporated The Secretary FAX No. 607-974-6135 If to SpecTran: (by mail) Chairman SpecTran Corporation 50 Hall Road Sturbridge, MA 01566 (by fax) Chairman SpecTran Corporation FAX No. 508-347-2747 3.4 Assignability. -------------- Neither party may assign any of its rights or privileges hereunder without the prior written consent of the other and any attempted assignment without such consent shall be void, except to (i) for SpecTran a wholly-owned subsidiary whose primary business is the manufacture of optical fiber, or (ii) for either party a successor in ownership of all or substantially all the assets of the assigning party's operations. In case of any such assignment, the assigning party fully guarantees the performance hereunder of its assignee. 13 - 11 - 3.5 Force Majeure. -------------- If the performance of this Contract or of any obligation hereunder, other than the payment of any money, is prevented, restricted or interfered with by reason of any act of God, civil disorder, strike, governmental act, war or, without limiting the foregoing, by any other cause not within the control of a party hereto, then the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided that the party so affected shall use its best reasonable efforts to avoid or remove such causes for nonperformance and shall continue performance hereunder with the utmost dispatch whenever such cases are removed. If a party's performance hereunder is continued to be delayed due to such force majeure so that Contract objectives hereunder are not being carried out, then both parties shall use their best reasonable efforts to remove the ramifications of the force majeure so that the parties' performances hereunder may continue. 3.6 No Waiver. ---------- Failure of a party to pursue any remedy available to it following breach of this Contract by the other party or failure by such other party to comply with any provision hereof shall not be deemed to constitute a waiver by such first-mentioned party of any of its defenses, rights or causes of action arising from such or any future breach or noncompliance of the same or different nature. 14 - 12 - 3.7 GOVERNING LAW. -------------- This Contract shall be governed and construed in accordance with the laws of the State of New York, except for conflicts of law principles. 3.8 ENTIRE CONTRACT, HEADINGS. -------------------------- This Contract, with all Attachments hereto, constitutes the entire agreement between the parties with respect to its subject matter (i.e., 1996, 1997 and 1998 SpecTran sales to Corning of multimode optical fiber). All prior or contemporaneous oral and written agreements between the parties hereto relating to optical fiber supply from SpecTran to Corning during the time period of this Contract, and all other memoranda and representations relating thereto, are superseded by this Contract. Headings used in this Contract are only for convenience and are not to be used in the interpretation of the Contract. 3.9 AMENDMENTS. ----------- This Contract may be amended only by a subsequent writing signed by authorized representatives of both parties, indicating an intent to amend the Contract. 3.10 SEVERABILITY. ------------- If any provision of this Contract is held invalid or unenforceable, the remaining provisions shall not be affected thereby, and the parties shall in good faith attempt to amend this Contract to eliminate such invalidity or unenforceability. 15 -13- 3.11 Advertising. ----------- Each party hereto agrees not to use the name of the other party in the first party's advertising regarding any optical fiber without the second party's prior written consent. 3.12 Confidentiality. --------------- Each party agrees that all confidential information (which shall only be commercial in nature of a type which may be legally shared between competitors) provided hereunder to it by the other party (which the transmitting party designates in writing as being confidential) will be kept confidential by the receiving party (using the same standard of care as the receiving party uses to protect its own similar confidential information); and shall not be sold to or disclosed in any other manner to any third party by the receiving party for a period of five (5) years commencing on the date when the transmitting party delivers such information to the receiving party. The preceding sentence shall not apply to: (a) Information which at the time of disclosure hereunder is in the public domain; (b) Information which after disclosure hereunder is published or otherwise becomes part of the public domain through no fault of the receiving party, but only after it is published or comes into the public domain; 16 - 14 - (c) Information which the receiving party can document through written records as having been in its possession at the time of its disclosure to either hereunder; and (d) Information which has been or may in the future be disclosed or delivered to the receiving party by any third party which does not have an obligation to the transmitting party to refrain from disclosing such information. In no event will either party transmit to the other any confidential information relating to the design, composition or manufacture of optical fiber or optical fiber coatings. The parties have caused this Contract to be signed by their duly authorized representatives in a manner legally binding upon the parties. SPECTRAN CORPORATION CORNING INCORPORATED By: /s/ R. E. Jaeger By: /s/ Wendell P. Weeks ---------------------------- --------------------------- Printed Printed Name: Raymond E. Jaeger Name: Wendell P. Weeks -------------------------- -------------------------- Vice President & Title: Chairman Title: Deputy General Manager ------------------------- ------------------------- Telecommunications Products Division By: ---------------------------- Printed Name: James Krueger -------------------------- Vice President, Matls. Mgmt. Title: Corporate Procurement ------------------------- TLS:rk spectcmm.ofa 17 ATTACHMENT A ESTIMATED MONTHLY SHIPMENT SCHEDULE - 1996 Multimode Fiber KKM Calendar Month to be shipped - -------------- ------------- January February March April May June July August September October November December 18 ATTACHMENT B OPTICAL FIBER PRICING AND PURCHASE SPECIFICATIONS 19 EXCEPTIONS 20 THESE PURCHASE SPECIFICATIONS ARE SUBJECT TO THE PRECEDING TWO PAGES OF ATTACHMENT B, WHICH PAGES ARE ENTITLED "OPTICAL FIBER PRICING AND PURCHASE SPECIFICATIONS" AND "EXCEPTIONS." PURCHASE SPECIFICATION FOR SPECTRAN INCORPORATED MULTIMODE OPTICAL FIBER SUPPLIED TO CORNING INCORPORATED 21 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 22 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 23 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 24 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 25 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 26 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 27 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 28 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 29 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 30 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 31 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 32 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 33 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 34 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 35 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 36 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - -------------------------------------------------------------------------- 37 - -------------------------------------------------------------------------- TITLE: Purchase Specification for SpecTran Incorporated Multimode Optical Fiber Supplied to Corning Incorporated - --------------------------------------------------------------------------