CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS

 

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                                                                   Exhibit 10.22

 

CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS

EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [****] AND FILED

SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

                          TRANSCEIVER SUPPLY AGREEMENT

 

                                 by and between

 

                              Finisar Corporation,

                 Sunnyvale, California, United States of America

                      acting for itself and its Affiliates,

                          - hereinafter referred to as "Buyer"-

 

                                       and

 

                       Infineon Technologies Trutnov, sro,

                           54101 Trutnov, Czech Republic

 

                     - hereinafter referred to as "Seller" -

 

       - Buyer and Seller are hereinafter collectively referred to as the

              "Parties" and individually referred to as a "Party" -

 

PREAMBLE

 

WHEREAS The Parties have entered into the Trutnov Asset Transfer Agreement of

the same date which provides for the sale and transfer of assets by Seller to

Buyer as more fully set forth in the Trutnov Asset Transfer Agreement; and

 

                        CONFIDENTIAL TREATMENT REQUESTED

 

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WHEREAS Buyer wishes to continue to procure fiber optic products from Seller for

an interim period following the closing date under the Trutnov Asset Transfer

Agreement; and

 

WHEREAS Seller wishes to continue to supply such fiber optic products to Buyer

until January 31, 2006.

 

NOW THEREFORE in consideration of the above, the Parties agree to the following

terms and conditions:

 

1.    SUBJECT OF THE AGREEMENT

 

     The subject of this agreement (hereinafter referred to as "Agreement") is

     the supply of (i) the products specified in Exhibit 1 to this Agreement and

     (ii) any other fiber optic products which will be supplied by Seller to

     Buyer throughout the term of this Agreement (together hereinafter referred

     to as the "Products") by Seller to Buyer or its Affiliates. The list of

     Products may be changed by the Parties from time to time.

 

     "Affiliate" shall mean any company which controls, is controlled by, or is

     under the same control as Buyer. "Control" shall mean the direct or

     indirect ownership of more than fifty percent (50%) of such company's

     capital or equivalent voting rights.

 

2.    DEMAND PLANNING AND PURCHASE ORDERS

 

2.1   Prior to February 15, 2005, Buyer will provide Seller with a first three

     (3) month rolling forecast of its demand for Products. Buyer will provide

     Seller with updated three (3) month rolling forecasts on the first day of

     each month thereafter. Seller will purchase raw materials based on such

      forecasts.

 

2.2   Prior to September 30, 2005, Buyer may place purchase orders for the

     Products on a build to order basis with standard lead times and Seller will

     manufacture and ship Products against these orders. In the event Buyer's

     demand exceeds the forecast, Seller will make reasonable commercial efforts

     to satisfy Buyer's demand.

 

                        CONFIDENTIAL TREATMENT REQUESTED

 

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2.3   In addition to placing orders for the Products, prior to September 30, 2005

      Buyer may place purchase orders for raw materials used to manufacture the

     Products ("Raw Materials") for delivery with standard lead times and Seller

     will ship Raw Materials against these orders. Seller will make reasonable

     efforts to satisfy Buyer's purchase orders.

 

2.4   Buyer shall forward its purchase orders in writing or by facsimile to the

     agreed order entry point at Seller. Seller is obliged to accept a purchase

     order in writing within four (4) business days following receipt thereof

     unless (i) the purchase order is in excess of Buyer's forecast, (ii) Seller

     can show commercially justifiable reasons (taking into account all

     circumstances of the specific case and balancing the interest of both

     parties) for refusing to accept Buyer's purchase order or (iii) the

     relevant order is in excess of Seller's capacity at the time this Agreement

     is signed. Upon Seller's acceptance of a purchase order, an individual

     purchase contract (hereinafter referred to as "Individual Purchase

     Contract") is concluded. In case a purchase order is refused by Seller, the

     Parties shall immediately endeavor to find reasonable remedial measures.

 

2.5   The terms and conditions of this Agreement shall apply to any purchase

     order of Buyer regarding the Products even if they do not refer to it

     expressly. Any separate general terms and conditions of Buyer or Seller

     shall not apply.

 

3.    DELIVERY

 

3.1   The Products are delivered "Ex Works" according to Incoterms 2000.

 

3.2   If the delivery date is defined

 

     a)    by day, Seller shall not deliver more than -5 / +0 days earlier or

          later than the agreed delivery day;

 

     b)    by week, Seller shall deliver within the agreed delivery week.

 

                         CONFIDENTIAL TREATMENT REQUESTED

 

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3.3   If Seller realizes that it cannot adhere to the agreed delivery date, it

     shall without delay inform Buyer and indicate the prospective duration of

     the delay. The Parties shall immediately endeavor to find reasonable

     remedial measures.

 

3.4   If Seller is responsible for delays in deliveries and if Buyer

     substantiates that it has suffered damages due to the delay, Buyer may

     claim per full week of delay liquidated damages of 0,5% of the price of the

     delayed Products up to a maximum amount of 5% of such price.

 

3.5   Subject to the condition that Buyer has set a reasonable time period within

     which to deliver the delayed Products and Seller fails to deliver the

      Products within such time period, Buyer may cancel the relevant Individual

     Purchase Contract without incurring any liability. The notice of

     cancellation shall be served without delay following expiration of the set

     time period.

 

3.6   Any further claims for damages or rights of Buyer due to the delay shall be

     excluded.

 

3.7   Buyer shall place its last order by September 30, 2005. The last deliveries

     shall be effected on or before January 31, 2006.

 

3.8   If subsequent to the confirmation of any purchase order Buyer requires an

     earlier or later delivery date than agreed, the Parties shall use

     reasonable efforts to find a mutually acceptable solution.

 

4.    PRICES

 

4.1   The purchase price for the Products shall be established as follows:

 

     (a)   If a specific Product (by part number) was sold to a specific customer

          in the period from October 1, 2004 through December 31, 2004 (the

          "Fourth Calendar Quarter"), the purchase price to be paid by Buyer to

           Seller for Products sold to that customer

 

                        CONFIDENTIAL TREATMENT REQUESTED

 

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          shall be [****] of the last price at which Seller or its Affiliates

          sold such Product to such customer during the Fourth Calendar Quarter.

 

     (b)   If Seller or its Affiliates did not sell a specific Product (by part

          number) to a specific customer during the Fourth Calendar Quarter, the

          purchase price to be paid by Buyer to Seller for Products sold to that

          customer shall be [****] of the weighted average price for sales by

          Seller and its Affiliates during the Fourth Calendar Quarter of the

          Product Group (as shown on Exhibit 1) to which the Product belongs.

 

     (c)   The purchase price to be paid by Buyer to Seller for a new Product for

          which there is no sales history shall be [****] of the price that

          Buyer has quoted to its customer. Buyer shall endeavour to sell the

          Product at the highest price the market will bear.

 

     (d)   For Products sold through a distributor, if a specific Product (by

          part number) was sold to a specific end customer in the Fourth

          Calendar Quarter, the purchase price to be paid by Buyer to Seller for

          Products sold to that customer shall be [****] of the adjusted

          distributor sale price for that Product during the Fourth Calendar

          Quarter. [Note: The adjusted distributor sale price is defined as the

          original distributor buy price less [****] which were paid to the

          distributor for competitive market reasons and is to be provided by

          Seller.]

 

     (e)   For Products sold through a distributor, if a specific Product (by

          part number) was not sold to a specific end customer during the Fourth

          Calendar Quarter, the purchase price to be paid by Buyer to Seller for

          Products sold to that customer shall be [****] of the weighted average

          price for all sales by Seller and its Affiliates during the Fourth

          Calendar Quarter of the Product Group (as shown on Exhibit 1) to which

          the Product belongs.

 

     (f)   In the event a customer advises Buyer that the historic sales price

          for Products during the Fourth Calendar Quarter is different than the

          sales price reflected in Seller's sales records for the Fourth

          Calendar Quarter, Buyer shall have the right to ask Seller to verify

          the prices at which Products were sold to that customer.

 

4.2   The prices for the Raw Materials shall be [****].

 

                        CONFIDENTIAL TREATMENT REQUESTED

 

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4.3   All prices are based on the applicable clause of the Incoterms 2000 as

     defined in Section 3.1 and include packaging. The applicable VAT shall be

     added to the price.

 

5.    INVOICES AND TERMS OF PAYMENT

 

5.1   Seller shall issue an invoice meeting th