Exhibit 10.9
[*] = Certain
confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of
The Securities
Exchange Act of 1934, as amended.
AMENDED AND
RESTATED
AGREEMENT FOR
MANUFACTURE
BETWEEN
IRIDIUM SATELLITE
LLC
AND
CELESTICA
CORPORATION
Final
01-10-2007
[*] = Certain
confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of
The Securities
Exchange Act of 1934, as amended.
CONTENTS
1.
DEFINITIONS………………………………………………………………………………………………..
1
2.
SCOPE OF
AGREEMENT…………………………………………………………………………………..
2
3.
FORECAST AND ORDER
PROCEDURE………………………………………………………………….
3
4.
MATERIALS…………………………………………………………………………………………………
3
5.
DELIVERY AND
RISK……………………………………………………………………………………...
4
6.
ACCEPTANCE OF
PRODUCTS……………………………………………………………………………
5
7.
ORDER AND FORECAST,
UPSIDE FLEXIBILITY, AND
RESCHEDULING…………………………..
5
8.
CANCELLATION……………………………………………………………………………………………
6
9.
PRICES……………………………………………………………………………………………………….
6
10.
PAYMENT……………………………………………………………………………………………………
7
11.
CUSTOMER LETTER OF
CREDIT…………………………………………………………………………
7
12.
TITLE…………………………………………………………………………………………………………
7
13.
INTELLECTUAL
PROPERTY………………………………………………………………………………
7
14.
QUALITY
ASSURANCE……………………………………………………………………………………
8
15.
CHANGE
CONTROL………………………………………………………………………………………..
8
16.
COST SAVING
SHARING………………………………………………………………………………….
9
17.
EXCESS AND/OR OBSOLETE
MATERIAL………………………………………………………………
9
18.
CELESTICA
WARRANTY…………………………………………………………………………………
10
19.
CUSTOMER
WARRANTY………………………………………………………………………………....
11
20.
INDEMNIFICATION……………………………………………………………………………………….
11
21.
CUSTOMER
PROPERTY…………………………………………………………………………………..
11
22.
CONFIDENTIALITY……………………………………………………………………………………….
12
23.
FREEDOM OF
ACTION……………………………………………………………………………………
12
24.
EXCLUSIONS AND
LIMITATION OF
LIABILITY………………………………………………………
12
25.
TERM AND
TERMINATION………………………………………………………………………………
13
26.
GENERAL…………………………………………………………………………………………………..
14
SCHEDULE 1:
PRODUCTS AND
SPECIFICATION
SCHEDULE 2:
PRICING
i
[*] = Certain
confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of
The Securities
Exchange Act of 1934, as amended.
THIS AMENDED AND
RESTATED AGREEMENT is made effective the first day of
January, 2007 (the “Effective Date”)
BETWEEN
CELESTICA
CORPORATION, a Delaware corporation with an
office located at 4300 West Round Lake Road, Arden Hills MN 55112
(“Celestica”).
AND
IRIDIUM SATELLITE
LLC, a
Delaware limited liability company with an office located at 8440
South River Parkway, Tempe AZ 85284 (the
“Customer”).
WHEREAS
This Agreement sets out
the terms and conditions upon which Celestica will manufacture and
supply to the Customer certain Products and supply certain Services
as herein defined.
IT IS
AGREED
1.
DEFINITIONS
The following words and
expressions shall have the following meanings:
1.1
“Affiliate”
means, a) with respect to the Customer, any company, firm, joint
venture, partnership, or other entity of which the Customer
directly or indirectly owns or controls the power to vote a
majority of the voting rights or over which the Customer directly
or indirectly has the power to exercise a controlling influence; b)
with respect to Celestica, any company, firm, joint venture,
partnership, or other entity of which Celestica Inc., an Ontario,
Canada corporation, directly or indirectly owns or controls the
power to vote a majority of the voting rights or over which
Celestica Inc., directly or indirectly has the power to exercise a
controlling influence.
1.2
“Customer
Information” shall mean the specification for
the relevant Product and
all drawings, documentation, data, software, information and
know-how, and any tooling provided by the Customer to
Celestica.
1.3
“Days” means
calendar days unless otherwise identified herein
1.4
“Excess”
Material shall have the meaning set forth in Article 17.
1.5
“Forecast”
shall have the meaning set forth in Article 3.1(b).
1.6
“Intellectual
Property” shall mean all patents, applications for patents,
copyrights, mask works, trade secrets, know-how, discoveries,
improvements, inventions, technical data, writings, software in
whatever form and Information (as that term is defined in the
Confidentiality Agreement between Iridium Satellite LLC and
Celestica Corporation dated February 8, 2002), Subscriber Equipment
Technical Information (as that term is defined in the
Non-Disclosure Agreement among SE Licensing LLC, Iridium Satellite
LLC and Celestica Corporation dated April 2, 2003), and any other
intellectual property rights recognised by any
jurisdiction.
1.7
“Material”
shall mean any components and other materials comprising or
comprised in Products.
1.8
“Minimum Order
Quantity” shall mean the minimum monthly quantity of Products
which Customer agrees to buy and which Celestica agrees to sell
pursuant to the terms of Article 3.
1.9
“Obsolete”
Material shall have the meaning set forth in Article
17.4.
1
[*] = Certain
confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of
The Securities
Exchange Act of 1934, as amended.
1.10
“Order”
shall mean purchase order for Products and/or Services placed by
the Customer subject to the terms and conditions of this
Agreement.
1.11
“Prices”
shall mean the prices for Products and/or Services and/or
non-recurring expenditure (“NRE”) (including, without
limitation, tooling and fixtures and other agreed items) agreed
between the parties from time to time.
1.12
“Products”
shall mean the products listed in Schedule 1 and described in the
Specifications.
1.13
“RMA” shall
mean a return material authorisation to be provided by Celestica to
the Customer.
1.14
“Services”
shall have the meaning set forth in Article 2.2.
1.15
“Specifications” shall
mean the requirements for the development, manufacture, test, and
packaging of the Products, all as further specified in the
documents listed in Schedule 1.
2.
SCOPE OF AGREEMENT
2.1
This Agreement will
apply to all Orders for Products and Services placed by the
Customer and accepted by Celestica under this Agreement.
2.2
From time to time,
Customer or its Affiliates may wish to purchase services from
Celestica. Such “Services” may include, but shall not
be limited to: development, design, engineering, out-of-warranty
repair, prototyping, distribution or other services as Customer may
request and Celestica may provide from time to time and which may
be described in more detail in various statements of work or
Orders. Unless otherwise agreed to in writing between the parties,
Celestica shall perform all Services in accordance with the terms
and conditions set forth in this Agreement and in accordance with
Celestica’s then-current fee schedule for such service, or if
no fee exists for such service, at a mutually agreed upon
price.
2.3
Celestica will
manufacture and deliver Products and supply Services pursuant to
the terms of this Agreement, subject to the Customer first having
provided Celestica with the specification for the Product, together
with any Customer Information and all other necessary drawings,
documentation, data, software, and other information of the
Customer and any consigned materials necessary for the manufacture
of Products and the provision of Services. Celestica is responsible
for maintaining necessary drawings, documentation, data, software,
and other information provided by the Customer.
2.4
As required for the
manufacture of the Products, Celestica will procure components,
materials, equipment and other supplies, and manufacture, assemble,
test and deliver Products pursuant to detailed written
specifications, workmanship standards and quality requirements for
each such Product as specified in the Schedule 1 Specifications,
including applicable bills of materials, schematics, assembly
drawings, process documentation, test specifications, current
revision number, quality standards and approved vendor
list.
2.5
The Customer will accept
Products and Services delivered, at agreed upon Prices, pursuant to
the terms of this Agreement.
2.6
Celestica shall provide
reasonable information and technical support to Customer as
required to assist Customer in obtaining regulatory certifications
as well as country-by-country type approvals necessary for the
distribution and sale of the Product in the jurisdictions specified
by Customer.
2.7
All previous agreements
between the parties concerning the subject matter hereof are
superseded and merged into this amended and restated Agreement for
Manufacture including without limitation:
(a)
the Agreement for
Manufacture which became effective 02 April 2003;
2
[*] = Certain
confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of
The Securities
Exchange Act of 1934, as amended.
(b)
Amendment No. 1 to the
Agreement for Manufacture which became effective 03 December 2004;
and
(c)
Exhibit A, Fulfillment
and Miscellaneous Services, to the Agreement for Manufacture which
became effective 30 May 2003.
3.
FORECAST AND ORDER PROCEDURE
3.1
During the term of this
Agreement, Customer agrees to purchase and Celestica agrees to
provide a Minimum Order Quantity of two thousand (2000) Products
per month (the “Delivery Month”). On a monthly basis,
Customer will provide Celestica with an updated forecast (the
“Forecast”) covering the upcoming ten (10) month period
that specifies any Delivery Month where Customer’s monthly
order requirements are projected to exceed the Minimum Order
Quantity. Customer will use its reasonable commercial efforts to
ensure that the Forecast is accurate, but the Forecast will not
constitute an Order. No less than two (2) months in advance of each
Delivery Month, Customer will provide Order(s) to Celestica
confirming the Minimum Order Quantity for that Delivery Month plus
any quantity in excess of the Minimum Order Quantity as ordered by
Customer.
3.2
Celestica will
acknowledge receipt of Orders as soon as reasonably practicable and
notify the Custo