EXHIBIT 10.67.2
CONFIDENTIAL TREATMENT
MANUFACTURING LICENSE AGREEMENT AND
SUPPLY AGREEMENT
AMENDMENT TWO
Reference is made to that certain
Manufacturing License Agreement dated March 18, 2005, as
amended by Amendment One entered into on May 6, 2005 (the
“Manufacturing License Agreement”) between Tellabs
Petaluma, Inc., a Delaware corporation, having its principal place
of business at 1465 North McDowell Boulevard, Petaluma, California
94954 (“Tellabs”) and Occam Networks, Inc., a Delaware
corporation, having its principal place of business at 77 Robin
Hill Road, Santa Barbara, California 93117 (“Occam”)
and that certain Supply Agreement dated March 18, 2005 (the
“Supply Agreement”) between Tellabs North America,
Inc., a Delaware corporation, having its principal place of
business at 1465 North McDowell Boulevard, Petaluma, California
94954 (“Tellabs NA”) and Occam.
WHEREAS, Tellabs and Occam desire to
amend the Manufacturing License Agreement and Tellabs NA and Occam
desire to amend the Supply Agreement, in each case to modify
existing terms and incorporate new terms, as required by the
respective parties, as set forth herein.
NOW, THEREFORE, the parties hereby
agree as follows as of the date hereof:
1. The terms and conditions of this
Amendment Two shall take effect upon being signed by each of the
parties.
2. Sections 1 and 2 of Exhibit D
(Customers and Territory) of the Manufacturing License Agreement
are deleted and replaced with the following:
“1. Category 1
Customers . “Category 1 Customers” means the
following entity or its successors and assigns: [***].
2. Category 2 Customers
. “Category 2 Customers” means the following entities
or their respective successors and assigns:
[***].”
3. All previous agreements (written
or oral) between the parties to add Qwest as a Category 1 Customer
under the Manufacturing License Agreement is rescinded and Tellabs
will not have any rights with respect to Qwest under the
Manufacturing License Agreement when this Amendment takes effect
and the customer definitions in the Agreements as amended,
including the definitions of Category 1 Customers and Category 2
Customer set forth in Section 2 of this Amendment, supersede
all previous oral and written communications regarding the
customers with respect to which Tellabs has rights under the
Manufacturing License Agreement and the Supply
Agreement.
4. Section 1 of the Supply
Agreement is amended to add the following defined terms:
“1.20 “ Named
Customers ” means the following entities or their
respective successors and assigns: [***]. The parties may add to
the list of Named Customers by written agreement.
*** Confidential treatment requested
pursuant to a request for confidential treatment filed with the
Securities and Exchange Commission. Omitted portions have been
filed separately with the Commission.
-1-
CONFIDENTIAL TREATMENT
1.21 “ Registered
Customers ” means the following entities or their
respective successors and assigns: The parties may add to the list
of Registered Customers by written agreement. [***]
1.22 “ Registered Occam
Product ” means the following subset of Occam Products:
6212 ADSL2Plus; 6214 ADSL2Plus with splitter; 6440 Optical Packet
Transport; BLC 6001 Stackable Chassis; and BLC 6012 High Capacity
Chassis. In addition, the BLC 6006 Medium Capacity Chassis shall be
deemed a Registered Occam Product as of the date on which it is
made generally available by Occam.
1.23 “ Transfer Price
” means the transfer price for an Occam Product set forth in
Section 3(a) of Exhibit B .
1.24 “ Margin ”
means the difference between (a) the amount collected by
Tellabs from the sale of an Occam Product unit (determined in
accordance with generally accepted accounting principles,
consistently applied by Tellabs) (“ Sale Price
”) and (b) the Transfer Price paid by Tellabs to Occam
for the Occam Product unit. All sales of Occam Product invoiced in
a currency other than U.S. Dollars will be converted to U.S.
Dollars in accordance with Tellabs’ standard practice prior
to calculating the Margin on the sale of an Occam Product unit.
When an Occam Product unit is sold by Tellabs in connection with or
as a component of other components or products, then the
computation of Margin will be based on the price charged to that
same customer (or if not sold to that customer, the same class of
customers) during the applicable quarter (or if not sold during the
applicable quarter, the most recent quarter during which a sale
occurred) for each Occam Product as separately priced.
1.25 “ Margin Share
” means the share of Margin to be paid by Tellabs to Occam as
set forth in Section 3(b) of Exhibit B
.”
5. Section 3.1 of the Supply
Agreement is deleted and replaced with the following:
“3.1 Occam
Products
(a)
Exclusive Customers . Tellabs may purchase Occam Products
for resale to an Exclusive Customer during the applicable
Exclusivity Period. Occam may not sell any Occam Product to an
Exclusive Customer as set forth in the Manufacturing License
Agreement. Tellabs shall provide Occam with written notice when it
begins manufacturing Occam Products pursuant to the Manufacturing
License Agreement. During the first three (3) months following
delivery to an Exclusive Customer of an Occam Product unit
manufactured by or for Tellabs pursuant to the Manufacturing
License Agreement (“ Date of First Manufacture
”), Tellabs shall purchase d
