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Exhibit 10.76
CORNING CORPORATED
and
SPECTRAN CORPORATION
---------------------------------------
THREE YEAR MULTIMODE
OPTICAL FIBER SUPPLY CONTRACT
---------------------------------------
Dated as of January 1, 1996
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INDEX
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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
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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;
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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
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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
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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
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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,
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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.
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B.
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ARTICLE 2
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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
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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
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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:
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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.
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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.
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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.
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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;
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(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
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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
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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
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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22
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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23
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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24
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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25
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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26
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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27
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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28
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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29
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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30
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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31
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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32
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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33
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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34
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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35
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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36
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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37
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TITLE: Purchase Specification for SpecTran
Incorporated Multimode
Optical Fiber Supplied to Corning Incorporated
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