This Manufacturing Supply Agreement, dated as of August 9, 2021 (the “Agreement”), is entered into by and between Shenzhen Fastrain Technology Co., Ltd., a corporation formed under the laws of the P.R.C. having an address at Room 401, Plant No. 2, Baolong 4th Rd., Longgang District, Shenzhen, China (P.R.C.), 518116 (“Shenzhen Fastrain”), together with Hong Kong Fastrain Company Limited (香港富創優越有限公司), which is an affiliate of Shenzhen Fastrain Technology Co., Ltd. and a limited liability company incorporated in Hong Kong under registration number 72834489-000-03-21-6 (“HK Fastrain”, and together with Shenzhen Fastrain, collectively, “Fastrain”), and EMCORE Corporation, a New Jersey corporation having an address at 2015 Chestnut St., Alhambra, CA 91803 (“EMCORE”, or “Buyer”, and together with Fastrain, the "Parties", and each, a "Party").

WHEREAS, EMCORE, Shenzhen Hytera Communications Co., Ltd. , a corporation formed under the laws of the P.R.C. (“SHCCL”) and Hytera Communications (Hong Kong) Company Limited (海能達通信(香港)有限公司), a limited liability company incorporated in Hong Kong under registration number 39005087-000-03-19-2 (“Hytera HK”, and together with SHCCL “Hytera”) have previously entered into that certain (i) Contract Manufacturing Agreement, dated as of October 25, 2019 (the “Original Manufacturing Agreement”) and (ii) Asset Purchase Agreement, dated as of October 25, 2019 (the “Original Asset Purchase Agreement”);

WHEREAS, EMCORE wishes to, subject to the terms and conditions set forth in this Agreement, engage Fastrain to manufacture certain laser module (“LM”) and DMTX products at Fastrain’s (or Fastrain’s subcontractor’s) facility located in Thailand, as well as box build components of such products, and certain receiver products, at Fastrain’s (or Fastrain’s subcontractor’s) facility located in Shenzhen, P.R.C.;

WHEREAS, concurrently with the execution of this Agreement, (i) EMCORE, Shenzhen Fastrain and Fastrain HK are entering into that certain Asset Purchase Agreement, dated as of the date hereof (the “New Asset Purchase Agreement”) and (ii) EMCORE, EMCORE Optoelectronics (Beijing) Co, Ltd., a corporation formed under the laws of the P.R.C. and EMCORE’s wholly-owned subsidiary (“EA”), SHCCL, Hytera HK, Shenzhen Fastrain and Fastrain HK are entering into that certain Termination Agreement, dated as of the date hereof (the “Termination Agreement”, and together with this Agreement and the New Asset Purchase Agreement, the “Transaction Documents”), pursuant to which each of EMCORE, EA, SHCCL and Hytera HK agree to terminate each of the Original Manufacturing Agreement and the Original Asset Purchase Agreement, in each case expressly conditioned upon and effective concurrent with the effectiveness of this Agreement and the New Asset Purchase Agreement.

1.    Definitions. Capitalized terms have the meanings set forth or referred to in this Section

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

"Agreement" has the meaning set forth in the preamble to this Agreement.

"Background Intellectual Property Rights" means EMCORE's Intellectual Property or Fastrain's Intellectual Property, as applicable, except for any Foreground Intellectual Property Rights.

"Bailed Property" has the meaning set forth in Section 14.1(a). For the avoidance of doubt, Bailed Property shall not include any equipment purchased by Fastrain, and sold by EMCORE, pursuant to the New Asset Purchase Agreement.

"Box Build Products" means the products identified in the “Box Build” section of Schedule 1.

"Business Day" means any day except Saturday, Sunday or any other day on which commercial banks located in P.R.C., Singapore or the State of New Jersey are authorized or required by Law to be closed for business.

"Claim" means any Action brought against a Person entitled to indemnification under Section 10.

"Confidential Information" has the meaning set forth in Section 13.1.

"Confirmation" has the meaning set forth in Section 3.2.

"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.

"Defective" means not conforming to the Product Warranty under Section 9.3.

"Defective Products" means goods shipped by Fastrain to EMCORE pursuant to this Agreement that are Defective.

"Delivery Date" means the delivery date for Products ordered hereunder that is set forth in a Purchase Order.

"Delivery Location" means the location for delivery of the Products specified in the applicable Purchase Order.

"Depreciation Expense" has the meaning set forth in Section 5.8.

"Disclosing Party" has the meaning set forth in Section 13.1.

"Dispute" has the meaning set forth in Section 17.16.

"Dispute Notice" has the meaning set forth in Section 17.16.

"DMTX Products" means the products identified in the “DMTx” section of Schedule 1.

"Dodd-Frank Act" has the meaning set forth in Section 7.1.2(h).

"EA" has the meaning set forth in the preamble to this Agreement.

"Effective Date" means the date first set forth above (which shall be the date the Agreement has been signed by each Party and delivered to the other parties).

"EMCORE" has the meaning set forth in the preamble to this Agreement.

"EMCORE Contracts" means all contracts or agreements to which EMCORE is a party or to which any of its material assets are bound.

"EMCORE Parties" means EMCORE, its subsidiaries, permitted successors and permitted assigns.

"EMCORE's Intellectual Property" means all Intellectual Property Rights owned by or licensed to EMCORE, including all Foreground Intellectual Property Rights and any of EMCORE's Background Intellectual Property Rights used in the design, production, and manufacturing of the Products.

"Encumbrance" means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

"Equipment" means goods (other than inventory, farm products or consumer goods) that are used in the manufacture, production or assembly of Products by Fastrain, and all machinery, equipment, Tooling, furnishings and fixtures (as such terms are defined in UCC Section 9-102) now owned or hereafter acquired by Fastrain, of any kind, nature or

"Fastrain" has the meaning set forth in the preamble to this Agreement.

"Fastrain Contracts" means all contracts or agreements to which Fastrain is a party or to which any of its material assets are bound.

"Fastrain Parties" means Fastrain, its Affiliates, subcontractors and permitted successors and permitted assigns.

"Fastrain's Intellectual Property" means all Intellectual Property Rights owned by or licensed to Fastrain, including Fastrain's Background Intellectual Property Rights used in the design, production, and manufacturing of the Products.

"Fastrain's Property" has the meaning set forth in Section 14.5.

"Force Majeure Event" has the meaning set forth in Section 17.20.

"Forecast" means, with respect to any period, a good faith projection or estimate of EMCORE's requirements for Products during each month during the period, which approximates, based on information reasonably available at the time to EMCORE, the quantity of Products that EMCORE may order for each such month.

"Foreground Intellectual Property Rights" means any and all of the Intellectual Property Rights developed with respect to, or for incorporation into, the Products, that are either developed (i) by EMCORE alone, (ii) by EMCORE and Fastrain jointly or (iii) by Fastrain alone as requested by EMCORE in connection with this Agreement.

"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

"Hytera HK" has the meaning set forth in the preamble to this Agreement.

“Hong Kong Financial Reporting Standards” means all Hong Kong Financial Reporting Standards, Hong Kong Accounting Standards (HKAS) and interpretations issued by the Hong Kong Institute of Certified Public Accountants.

“Incoterms” means Incoterms 2010, the eighth sets of pre-defined international contract terms published by the International Chamber of Commerce relating to international commercial law.

"Indemnified Parties" has the meaning set forth in Section 10.1.

"Indemnifying Party" has the meaning set forth in Section 10.1.

"Initial Price" has the meaning set forth in Section 5.1.

"Initial Term" has the meaning set forth in Section 6.1.

"Inspection Period" has the meaning set forth in Section 4.3.

"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

"LM Products" means the products identified in the “LM” section of Schedule 1.

"Losses" has the meaning set forth in Section 10.1.

"New Asset Purchase Agreement" has the meaning set forth in the preamble to this Agreement.

"Nonconforming Products" means any goods received by EMCORE from Fastrain that: (a) do not conform to the product number listed in the applicable Purchase Order; (b) do not fully conform to the agreed Specifications, other than due to (i) EMCORE’s designs or (ii) materials purchased by EMCORE for use in the manufacture, production or assembly of Products by Fastrain; (c) on visual inspection, EMCORE reasonably determines are otherwise Defective; or (d) exceed the quantity of Products

"Notice" has the meaning set forth in Section 17.5.

"Original Asset Purchase Agreement" has the meaning set forth in the preamble to this Agreement.

"Original Manufacturing Agreement" has the meaning set forth in the preamble to this Agreement.

"Party" has the meaning set forth in the preamble to this Agreement.

"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).

"Permits" means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained or required to be obtained, from any Governmental Authority.

"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

"Personnel" of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.

“PPV” means purchase price variance.

"Price" has the meaning set forth in Section 5.2.

"Products" means the products identified on Schedule 1 as described in the Specifications, as updated by the Parties from time to time by mutual written agreement.

"Product Warranty" has the meaning set forth in Section 9.3.

"Purchase Order" means EMCORE's purchase order issued to Fastrain hereunder, which may, among other things, specify items such as: (a) the Products to be purchased; (b) the quantity of each of the Products ordered; (c) the Delivery Date; (d) the unit Price for each of the Products to be purchased; (e) the billing address; and (f) the Delivery Location; in each case, including all terms and conditions attached to, or incorporated into, such purchase order, and any Release issued by EMCORE to Fastrain

"Receiver Products" means the products identified in the “Receiver” section of Schedule 1.

"Receiving Party" has the meaning set forth in Section 13.1.

"Reimbursement Depreciation" has the meaning set forth in Section 14.2.

"Release" means a document issued by EMCORE to Fastrain pursuant to a Purchase Order that identifies (to the extent not specified in the original Purchase Order) the quantities of Products constituting EMCORE's requirements or otherwise to be included in a particular order, the Delivery Locations and Requested Delivery Dates for such Products.

"Renewal Term" has the meaning set forth in Section 6.2.

"Representatives" means a Party's Affiliates and each of their respective Personnel, officers, directors, partners, attorneys, third-party advisors, successors and permitted assigns.

"Repurchase Consideration" has the meaning set forth in Section 5.8(e).

"SHCCL" has the meaning set forth in the preamble to this Agreement.

"Specifications" means the specifications for the Products as mutually agreed in writing by EMCORE and Fastrain.

"Taxes" means any and all present and future sales, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

"Term" has the meaning set forth in Section 6.2.

"Tooling" means, collectively, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, and documentation (including engineering specifications and test reports) used by Fastrain in connection with its manufacture and sale of the Products, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto.

"Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, symbols, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals

"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.

“Transaction Documents” has the meaning set forth in the preamble to this Agreement.

"US" means the United States of America.

2.    Purchase and Sale of Products.

2.1    Purchase and Sale. Subject to the terms and conditions of this Agreement, during the Term, EMCORE shall purchase Products from Fastrain, and Fastrain shall manufacture and sell Products to EMCORE, at the initial Prices set forth on Schedule 1 attached hereto. The Parties shall, from time to time, amend Schedule 1 to reflect any agreed revisions; provided that no such revisions will modify this Agreement or be binding on the Parties unless such revisions have been fully approved in a signed writing by authorized Representatives of both Parties.

2.2    Terms of Agreement and EMCORE's Purchase Order Prevail; Order of Precedence. Subject to Section 3.3, the Parties intend for the express terms and conditions contained in this Agreement (including any Schedules and Exhibits hereto) and in any Purchase Order that are consistent with the terms and conditions of this Agreement to exclusively govern and control each of the Parties' respective rights and obligations regarding the manufacture, purchase and sale of the Products, and the Parties' agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will prevail and such contrary terms will have no force or effect. Except for such contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this Section 2.2, any additional, contrary or different terms contained in any Confirmation or any of Fastrain's invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by EMCORE and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized Representatives of both Parties. The delivery of goods, transportation, provision of any licenses, authorizations and formalities, the costs of carriage, insurance, package and marking, the transfer of title and risks of loss and any other aspect with related to the performance of Agreement shall be governed in accordance with EXW, manufacturing facility under Incoterms.

2.3    No Right to Manufacture and Sell Products to Other Parties. During the Term, Fastrain shall not manufacture or sell any Product (as defined above) to any Person other than EMCORE, or enter into any agreement with any Person other than EMCORE related to the manufacture or sale of, any Product (as defined above). Fastrain shall not, at any time, use any of EMCORE's Intellectual Property (including Foreground Intellectual Property Rights and Background Intellectual Property Rights) to manufacture or sell Products or other goods or products that to any other buyer. This Section 2.3 will survive expiration or termination of this Agreement.

3.    Ordering Procedure.

3.1    Purchase Orders. EMCORE shall issue Purchase Orders to Fastrain in written or electronic form. From time-to-time, EMCORE may also issue Releases to Fastrain. For the avoidance of doubt, EMCORE shall only be obligated to purchase from Fastrain, and Fastrain shall be obligated to sell to EMCORE, the quantities of Products listed on Schedule 1 hereto or otherwise specified in a Purchase Order (including any related Release).

3.2    Acceptance, Rejection, and Cancellation of Purchase Orders. Fastrain shall confirm to EMCORE the receipt of each Purchase Order issued hereunder and corresponding delivery date (each, a "Confirmation") within two Business Days following Fastrain's receipt thereof. Each Confirmation must reference EMCORE's Purchase Order number, confirm acceptance of the Purchase Order or, solely if permitted under this Section 3.2, advise EMCORE of Fastrain's rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If Fastrain fails to issue a Confirmation within two Business Days following Fastrain's receipt thereof or otherwise commences performance under such Purchase Order, Fastrain will be deemed to have accepted the Purchase Order. EMCORE may withdraw any Purchase Order prior to Fastrain's acceptance thereof. Fastrain may reject a Purchase Order if Fastrain has sent EMCORE a Notice of termination under Section 6.5. Except as otherwise agreed in this Agreement, Fastrain may not cancel any previously accepted Purchase Order hereunder. EMCORE may only cancel a previously accepted Purchase Order (i) pursuant to the exercise of EMCORE's rights under Section 4.1 or (ii) upon mutual agreement of the Parties, provided the EMCORE shall be liable for the reasonable storage and freight costs of the forwarder due to the canceled delivery. If EMCORE cancels a purchase order for finished goods, Fastrain shall immediately stop the delivery, and any Products with aging more than forty five (45) days shall be subject to Section 7.2.3. If EMCORE cancels a purchase order for works in process, Fastrain shall immediately stop the process of manufacturing with respect to such purchase order, and any corresponding raw materials or WIP shall be subject to the terms of Section 7.2.4. EMCORE may postpone the delivery date on a Purchase Order by providing at least two Business Days advance written Notice, and, if made with less than 10 Business Days written notice, shall be liable for the reasonable storage and freight costs of the forwarder due to the delayed delivery.

3.3    Purchase Orders Under Original Manufacturing Agreement. Immediately upon the coming into effective of this Agreement, Fastrain shall automatically assume all purchase orders previously placed by EMCORE with Hytera under the Original Manufacturing Agreement that have not been fulfilled in their entirety as of the Effective Date, and shall fulfill such purchase orders in their entirety on the delivery date(s) set forth in the applicable purchase order. Subject to the foregoing, such purchase orders shall otherwise be subject to the terms of Section 2.2 above and the terms of this Agreement shall apply to such purchase orders mutatis mutandis as if they were Purchase Orders issued pursuant to this Agreement.

3.4    Quarterly Updates. On a quarterly basis, the Parties shall confirm the material list, unit price, minimum order quantity, lead time, and supplier information for each Product, provided that EMCORE is entitled to specify the procurement channels for critical parts/components.

3.5    Forecasts.

4.    Shipment, Delivery, Acceptance, and Inspection.

4.1    Shipment and Delivery Requirements. Time, quantity and delivery to the Delivery Location are of the essence under this Agreement. Fastrain shall procure materials for, fabricate, assemble, pack, mark and ship Products strictly in the quantities, by the methods, to the Delivery Locations and by the Delivery Dates, specified in this Agreement or in an applicable Purchase Order or Release. Delivery times will be measured to the time that Products are actually received at the Delivery Location. If Fastrain does not comply with any of its delivery obligations under this Section 4, EMCORE may, following good faith discussion with Fastrain and at Fastrain's sole cost and expense, (a) approve a revised Delivery Date, (b) require expedited or premium shipment, or (c) cancel the Purchase Order applicable to the delayed Product and obtain similar goods from other sources (and all such Products will be deemed to have been purchased under this Agreement for purposes of satisfying EMCORE's quantity requirements hereunder), with Fastrain being liable for additional costs to EMCORE associated with such purchase. Unless otherwise

4.2    Transfer of Title and Risk of Loss.  

4.3    Inspection. Fastrain shall insure that all Products have been sampling tested and qualified to meet the applicable Specifications, and Fastrain shall not deliver any Non-Conforming Products. Products are subject to EMCORE’s and EMCORE's customer’s inspection and approval or rejection as Nonconforming Products notwithstanding EMCORE’s or EMCORE’s customer’s prior receipt of or payment for the Products. EMCORE and EMCORE’s customer shall have a reasonable period of time no more than 30 days following delivery of the Products to the Delivery Location ("Inspection Period"), to inspect all Products received under this Agreement and to inform Fastrain, in writing, of EMCORE's rejection of any Nonconforming Products. EMCORE may return to Fastrain any or all units of rejected Products that constitute Nonconforming Products because they exceed the quantity stated in this Agreement or any Purchase Order. If EMCORE rejects any other Nonconforming Products, EMCORE may elect to (a) require Fastrain, at Fastrain's sole cost, to repair or replace the rejected Products at the location specified by EMCORE (which may include Fastrain's location, EMCORE's location or the location of a third party), (b) purchase similar goods from another source (and apply such purchases against EMCORE's quantity requirements hereunder), (c) produce similar goods itself (and apply such production quantities against EMCORE's quantity requirements hereunder), (d) repair the Products itself or have a third party repair the Products, or (e) retain the rejected Products; in each case without limiting the exercise by EMCORE of any other rights available to EMCORE under this Agreement or pursuant to applicable Law. All returns of Nonconforming Products to Fastrain are at Fastrain's sole risk and expense. Products that are not rejected within the Inspection Period will be deemed to have been accepted by EMCORE; provided, however, that EMCORE's acceptance of any Products will not be deemed to be a waiver or limitation of Fastrain's obligations

5.    Price and Payment.

5.1    Initial Prices. Subject to Section 5.2, EMCORE shall purchase the Products from Fastrain at the initial prices set forth on Schedule 1 attached hereto ("Initial Prices"). All Prices include, and Fastrain is solely responsible for, all costs and expenses relating to packing, crating, boxing, production, manufacture, sale, and delivery of the Products to the Delivery Location. All Prices are firm and not subject to increase for any reason, including changes in market conditions, increases in labor or overhead costs or because of labor disruptions or fluctuations in production volumes.

5.2    Price Changes. Twice per year (each March and September), the Parties will review and mutually agree in good faith to pricing for each Product for the following six-month period (the agreed price for such quarter, the “Price”), provided that in no event shall Prices for the next period exceed the current price for the applicable Product. At each such review, Fastrain shall provide EMCORE with a price reduction plan for next subsequent six-month period. Fastrain shall use reasonable best efforts to achieve the target of annual price reductions of 10%, which can be broken up into a 5% reduction each six-month period. In addition, in each calendar quarter beginning with the quarter ending September 30, 2021 and continuing through the quarter ending December 31, 2022, provided that (a) EMCORE purchases at least 37,500 of total DMTX Products in the applicable quarter and (b) product change notifications for housing and covers have been approved by EMCORE, then Fastrain shall provide aggregate price reductions of (i) US$46,000 in the quarter ending September 30, 2021, (ii) US$234,000 in the quarter ending December 31, 2021 and (iii) US$266,000 in each of the quarters ending March 31, June 30, September 30 and December 31, 2022, which reductions shall be paid in the form of a rebate to EMCORE within 30 days following the end of the applicable quarter. Meanwhile, the price difference of materials previously prepared by Fastrain, that is the unit price difference regarding housing and cover between the existing suppliers and new suppliers multiplied by the quantity of materials prepared prior to formal approval and implementation of PCN, shall be deducted, offset or returned to Fastrain within 30 days following the end of the above-mentioned applicable quarter accordingly.

5.3    New Products. Schedule 1 attached hereto may be updated from time to time by mutual written agreement of the Parties to include new products which the Parties mutually agree that Fastrain will supply to EMCORE, at Prices mutually agreed based on the pricing model set forth on Schedule 2 attached hereto. Fastrain shall address solutions to predictable engineering problems after such agreement on Pricing, including but not limited to DMTX/LM processing technique, production accessorial tool design, etc.

5.4    Invoices. Fastrain shall issue monthly invoices to EMCORE for all Products ordered in the previous month. Each invoice for Products must set forth in

5.6    Payment. Except for any amounts disputed by EMCORE in good faith, Fastrain's accurate and correctly submitted invoices will be payable within 45 days following the later of (a) EMCORE's receipt of Fastrain's invoice or (b) EMCORE's receipt of the applicable Products. Any payment by EMCORE for Products will not be deemed acceptance of the Products or waive EMCORE's right to inspect. EMCORE will be entitled to apply any discounts allowable and determined by Fastrain for prompt payment of the interest of the unpaid amount even though EMCORE is unable to make payment within the time limits set by Fastrain if such failure is due to Fastrain's actions or other circumstances or events beyond EMCORE's reasonable control. EMCORE shall make all payments in US dollars by check, wire transfer or automated clearing house in accordance with the payment instructions provided by Fastrain to EMCORE.

5.7    Setoff; Contingent or Disputed Claims. All amounts due from EMCORE to Fastrain are net of any indebtedness of Fastrain to EMCORE. In addition to any right of set-off, deduction or recoupment provided or allowed by Law, EMCORE may, following good faith discussion with Fastrain, set off against, and deduct and recoup from, any amounts due or to become due from EMCORE to Fastrain, any amounts due from Fastrain to EMCORE, including for damages resulting from breaches by Fastrain of its obligations under this Agreement or any other agreement between such parties. If an obligation of Fastrain is disputed, contingent or unliquidated, payment by EMCORE of the disputed portion of the amount due may be deferred until such dispute is resolved, provided that such dispute shall be resolved promptly, and each Party shall seek to resolve such dispute in good faith in accordance with the requirements set forth in Section 17.16 of this Agreement. In the event of Fastrain's

5.8    Minimum Additional Payments.

(a)    In each calendar year beginning with the 2021 calendar year and ending with the 2024 calendar year, in the event that the Products delivered to EMCORE in such calendar have an aggregate Depreciation Expense (as defined below) of less than US$660,000, based on (i) Fastrain’s fulfillment of EMCORE’s requested deliveries pursuant to all effective Purchase Orders under this Agreement for such period; or (ii) Fastrain’s actual deliveries for such period, in case Fastrain’s failure of 100% fulfillment for such period was due to EMCORE’s breach of this Agreement, then an amount equal to US$660,000 less the aggregate Depreciation Expense of Products delivered to EMCORE in such calendar year shall become payable and be paid by EMCORE within 30 days following the end of the applicable calendar year in accordance with the payment instructions provided by Fastrain to EMCORE. “Depreciation Expense” shall be calculated as follows:

(e) In the event that EMCORE and Fastrain mutually agree in writing, in each of its sole discretion, to terminate this Agreement prior to its expiration pursuant to Section 6.3 of this Agreement, then if, as of the date of such mutual agreement to terminate, Fastrain has delivered to EMCORE Products having less than US$6,453,965 of Depreciation Expense of Products, EMCORE shall repurchase the Purchased Assets for a purchase price in an amount equal to US$6,453,965 less the actual amount of Depreciation Expense of Products delivered to EMCORE during the period from January 1, 2021 to the date such termination of this Agreement becomes effective (the “Repurchase Consideration”). The Repurchase Consideration shall become due and payable by EMCORE in accordance with the payment instructions provided by Fastrain within 30 days following the date such termination of this Agreement becomes effective. Any such termination pursuant to this Section 5.8 (e) shall not affect the fulfillment of any payment obligations and liabilities accrued as of or before such termination.

6.    Term; Termination.

6.1    Initial Term. The term of this Agreement commences on the Effective Date and continues until December 31, 2025 unless it is earlier terminated pursuant to the terms of this Agreement or applicable Law (the "Initial Term").

6.2    Renewal Term. Upon expiration of the Initial Term, the term of this Agreement will automatically renew for additional successive one year terms, unless either Party provides written Notice of non-renewal at least 180 days prior to the end of the then-current term (each, a "Renewal Term" and together with the Initial Term, the "Term"), unless any Renewal Term is earlier terminated pursuant to the terms of this Agreement or applicable Law. If the Initial Term or any Renewal Term is renewed for any Renewal Term(s) pursuant to this Section 6.2, the terms and conditions of this

6.3    Termination by Mutual Agreement. This Agreement may, at any time, be terminated by mutual written agreement of the Parties in each Party’s sole discretion, provided that any such termination shall occur on the date the mutually agreed. Except for the termination rights set forth in this Section 6.3, Section 6.4 and Section 6.5, neither party may terminate this Agreement.

6.4    EMCORE's Right to Terminate for Cause. EMCORE may terminate this Agreement, by providing 30 days prior written Notice to Fastrain:

6.5    Fastrain's Right to Terminate for Cause. Fastrain may terminate this Agreement, by providing written Notice to EMCORE:

6.6    Effect of Expiration or Termination.  

6.7    Resourcing Cooperation. Upon the expiration or earlier termination of this Agreement for any reason, to the extent requested by EMCORE in writing, Fastrain will promptly take the following actions and such other actions as may be reasonably required by EMCORE to reasonably assist EMCORE to transition production of Products from Fastrain to an alternative seller determined by EMCORE to continue the production:

7.    Certain Obligations of Fastrain and Emcore

7.1    Certain Obligations of Fastrain

7.1.1 Packaging and Labeling. Fastrain shall properly pack, mark and ship Products as instructed by EMCORE and otherwise in accordance with applicable Law, industry standards and the requirements mutually agreed between Fastrain and EMCORE (including anti-static packaging), and shall provide EMCORE with shipment documentation showing the Purchase Order number, Fastrain's identification number for the subject Products, the quantity of pieces in shipment, qualification and test results, lot number the bill of lading number, and the country of origin.

7.1.2 Materials.

(h)    Upon EMCORE’s request, Fastrain shall promptly provide to EMCORE, in such form and detail as EMCORE requests, a list of all materials incorporated in the Products, the amount of such materials, and information concerning any changes in or additions to such materials. Without limitation of the foregoing, upon EMCORE’s request, Fastrain shall provide to EMCORE all information in reasonably necessary scope related to the Products (in sufficient detail), with written certifications thereof, to enable EMCORE to timely comply with all of EMCORE's and EMCORE's customers' due diligence, disclosure and audit requirements under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") and Rule 13p-1 and Form SD under the Securities Exchange Act of 1934, and all similar, applicable statutes and regulations, including due inquiry of Fastrain's supply chain (and certifications by such suppliers) identifying conflict minerals (as defined in Section 1502(e)(4) of the Dodd-Frank Act) contained in each Product and the country of origin of such conflict

7.1.3 Production.  

7.1.4 Quality.  

7.1.5 Protection Against Supply Interruptions. Fastrain shall, at Fastrain's sole cost and expense, take such actions as are necessary or appropriate to ensure the uninterrupted supply of Products to EMCORE for not less than 30 days during any foreseeable or anticipated event or circumstance that could interrupt or delay Fastrain's performance under this Agreement (other than interruptions caused by the action or inaction of EMCORE), including any labor disruption, whether or not resulting from the expiration of Fastrain's labor contracts.

7.1.6 Duty to Advise. Fastrain shall promptly provide written Notice to EMCORE of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences: (a) any failure by Fastrain to perform any of its obligations under this Agreement; (b) any delay in delivery of Products; (c) any defects or quality problems relating to Products; (d) any change in Control of Fastrain; (e) any deficiency in EMCORE specifications, samples, prototypes or test results relating to this Agreement; or (f) any failure by Fastrain, or its subcontractors or common carriers, to comply with Law. In addition, Fastrain shall promptly notify EMCORE in writing of any change in Fastrain's authorized Representatives, insurance coverage or professional certifications.

7.1.7 Certain Changes. 

7.1.8 Fastrain's Financial Condition.  

7.1.9 Subcontractors. To the extent Fastrain engages any subcontractor(s) in connection with the performance of services pursuant to this Agreement, Fastrain shall ensure compliance by such subcontractor with all requirements of this Section 7 applicable to Fastrain.

7.2 Certain Obligations of EMCORE and Fastrain Concerning Aged Inventory

7.3 Certain Obligations of EMCORE Concerning Defective Materials Provided by EMCORE

8.    Compliance with Laws. 

8.1    Compliance. The Fastrain Parties and EMCORE shall at all times comply with all Laws applicable to this Agreement, each party's operation of its business and the exercise of its rights and performance of its obligations hereunder, including but not limited to Laws related to import and export, environment protection, health and safety, labor and employment, dangerous waste processing and intellectual property. Upon Fastrain or EMCORE's reasonable request, EMCORE or Fastrain shall provide the other Party with written certification of compliance with applicable Laws. Upon EMCORE's reasonable request, Fastrain shall provide EMCORE with (a) written certification of the origin of any ingredients or materials in the Products; and (b) any additional reasonably necessary information regarding the Products requested by EMCORE such that EMCORE may comply in a timely manner with its obligations under Law.

8.2    Permits, Licenses, and Authorizations. The Fastrain Parties shall obtain and maintain all Permits necessary for the exercise of its rights and performance of the Fastrain Party’s obligations under this Agreement, including any Permits required for the export of Products or the import of any raw materials and other manufacturing parts used in the production and manufacture of the Products, and the shipment of hazardous materials, as applicable.

9.    Representations and Warranties; Product Warranty. 

9.1    Fastrain's Representations and Warranties. Each of Shenzhen Fastrain and HK Fastrain represents and warrants to EMCORE that:

9.2    EMCORE's Representations and Warranties. EMCORE represents and warrants to Fastrain that:

9.3    Product Warranty. Fastrain warrants to EMCORE that (the "Product Warranty"):

(c)    EXCLUSION. THE ABOVE WARRANTIES SHALL NOT APPLY TO ANY PRODUCTS WHICH HAVE BEEN MISUSED, DAMAGED, PLACED IN AN UNSUITABLE PHYSICAL OR OPERATING ENVIRONMENT OR MAINTAINED IMPROPERLY BY EMCORE OR CAUSED TO FAIL SOLELY AS A RESULT OF ANY COMPONENT, MATERIAL, PRODUCT OR SERVICE SUPPLIED BY EMCORE (OTHER THAN THE PURCHASED ASSETS, PROVIDED THAT EMCORE HAS NOT BREACHED ANY REPRESENTATION OR WARRANTY MADE IN THE NEW ASSET PURCHASE AGREEMENT); OR ANY PRODUCTS WITH A DEFECT SOLELY CAUSED BY THE DEFECTIVE WRITTEN EMCORE PROPERTY DESIGN. EXCEPT AS PROVIDED IN THIS SECTION, OR IN ANY OTHER PROVISION OF THIS AGREEMENT, FASTRAIN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES RESPECTING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.4    Additional Terms. The Product Warranty (a) is in addition to all other warranties, express, implied, statutory and common law, (b) extends to the Products' future performance, (c) survives for the warranty period Fastrain's delivery of the Products, EMCORE's receipt, inspection, acceptance, use of the Products and payment for the Products, and the termination or expiration of this Agreement, (d) inures to the benefit of EMCORE and its successors and permitted assigns, and (e) may not be excluded, limited or disclaimed by Fastrain. EMCORE's approval of Fastrain's materials, processes or similar requirements will not be construed to relieve Fastrain of any warranties, unless the Parties agreed otherwise. Any applicable statute of limitations on EMCORE's claims for breach of warranty will commence no earlier than the date on which EMCORE discovers or ought to discover the breach.

10.    Indemnification. 

10.1    Indemnification. Subject to the terms and conditions of this Agreement, a party (as "Indemnifying Party") shall indemnify, defend and hold harmless the other Parties and their Representatives, Affiliates, officers, directors, employees, successors and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred by any Indemnified Party (collectively, "Losses"), arising out or

10.2    Exceptions and Limitations on Indemnification. The liability of each of Shenzhen Fastrain and HK Fastrain as an Indemnifying Party under the indemnification provision in Section 10.1 shall be joint and several. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to

11.    LIMITATION ON LIABILITY. EXCEPT FOR LIABILITY FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, DOWNTIME, LOSS OF SALES, LOSS OF FUTURE REVENUE, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR LIABILITIES ARISING UNDER SECTIONS 2, 3.2, 4.1, 5.2, 5.3, 6.7, 7.1.3, 7.1.4, 7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9, 8, 12, 13, 15 AND 16, THE AGGREGATE LIABILITY OF FASTRAIN FOR CLAIMS RELATING TO A SPECIFIC PURCHASE ORDER PLACED UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT TO BE PAID BY EMCORE TO FASTRAIN UNDER THE APPLICABLE PURCHASE ORDER. EACH PARTY’S AGGREGATE LIABILITY UNDER ALL SECTIONS OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO (I) US$7,021,366 PLUS (II) THE AGGREGATE DOLLAR VALUE OF ALL PURCHASE ORDERS THAT HAVE NOT BEEN FULFILLED IN THEIR ENTIRETY PURSUANT TO THE TERMS OF THIS AGREEMENT.

12.    Intellectual Property. 

12.1    Ownership. Each of the Parties acknowledges and agrees that:

12.2    Prohibited Acts. EMCORE and the Fastrain Parties shall not:

13.    Confidentiality. 

13.1    Scope of Confidential Information. From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs, goods and services (including any Forecasts), confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" constitutes "Confidential Information" hereunder. Confidential Information does not include information that at the time of disclosure and as established by documentary evidence:

13.2    Protection of Confidential Information. The Receiving Party shall, (x) for three years following the expiration or earlier termination of this Agreement for any Confidential Information that does not constitute a trade secret or (y) for any Confidential Information that constitutes a trade secret, for so long as the trade secret is maintained by the Disclosing Party:

The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its Representatives shall, pursuant to Section 6.6(c), promptly return all Confidential Information and copies thereof that it has received under this Agreement. The Parties acknowledge that the Confidentiality Agreement, dated as of April 30, 2021, entered into between EMCORE and Fastrain (the "Confidentiality Agreement") remains in full force and effect. For so long as the Confidentiality Agreement remains in effect, in case of any discrepancy or ambiguity between the terms under this Section 13 and those contained in the Confidentiality Agreement, the terms of the Confidentiality Agreement shall prevail.

14.    Tangible Property. 

14.1    Bailment.  

(a)    All Equipment and other tangible property of every description, including supplies, materials, machinery, equipment, drawings, photographic negatives and positives, artwork, copy layout, electronic data and other items, furnished by EMCORE free of charge, either directly or indirectly, to Fastrain or any subcontractor to Fastrain in connection with or related to this Agreement, or for which Fastrain has been at least partially reimbursed by EMCORE (collectively, "Bailed Property") is and will at all times remain the property of EMCORE and be held by Fastrain on a bailment-at-will basis.

14.2    Tooling Orders.  

(a)    Fastrain may not charge EMCORE for the cost of manufacturing or procuring any Tooling or other materials used in the production and sale of the Products unless EMCORE agrees in writing, which agreement EMCORE shall not unreasonably withhold, to reimburse Fastrain for Fastrain's actual reasonable costs of manufacturing or procuring such Tooling or other materials (a "Reimbursement Depreciation"). Payment for such Tooling or materials will be due only after (a) EMCORE receipt of such Tooling or materials required by EMCORE, which will be conducted at Fastrain's sole cost and expense, (b) EMCORE has successfully conducted a tooling audit in accordance with its requirements, for which it has informed Fastrain before making the Tooling or materials, and (c) Fastrain has provided to EMCORE detailed evidence documenting the actual costs incurred by Fastrain for such Tooling or materials, including copies of any invoice issued to Fastrain by any third party with respect thereto, or any other information reasonably requested by EMCORE with respect to such Tooling or materials (which may include CAD models and drawings) counted. EMCORE shall pay Fastrain only the actual cost of such Tooling or materials, not to exceed the authorized amount, if any, stated in the applicable Reimbursement Depreciation.

14.3    Maintenance; Risk of Loss. Fastrain shall bear reasonable risk of loss of and damage to Bailed Property. EMCORE shall, at its own expense, for the benefit of EMCORE, insure all Bailed Property with full and extended coverage for all losses, for its full replacement value, in accordance with the terms of Section 16. As and when it is commercially reasonable to do so, Fastrain shall bear the cost and expense, maintain, repair, refurbish and replace Bailed Property, unless otherwise agreed by EMCORE after good faith discussion. All replacement parts, additions, improvements, and accessories for such Bailed Property will automatically become EMCORE's property upon their incorporation into or attachment to the Bailed Property. All replacements of Bailed Property will also be EMCORE's property. Fastrain shall replace any missing components of or inserts to any Bailed Property.

14.4    Inventory. Fastrain will maintain a written inventory of all Bailed Property that sets forth a description and the location of all Bailed Property, and provide a copy of this inventory to EMCORE upon request. Fastrain shall mark all Bailed Property permanently and conspicuously to identify it as the property of EMCORE, and indicate EMCORE's name during the period of Term. Fastrain shall immediately sign any documents reasonably requested by EMCORE to evidence all of EMCORE's rights to and interests in Bailed Property. Fastrain grants to EMCORE a limited and irrevocable power of attorney, coupled with an interest, to execute and record on Fastrain's behalf any documents with respect to Bailed Property that EMCORE determines are reasonably necessary to reflect EMCORE's interest in the Bailed Property.

14.5    Fastrain's Property. Unless EMCORE otherwise agrees in writing to be liable for related expenses, Fastrain, at its sole expense, shall furnish, keep in good condition, and replace in its sole determination when necessary all Equipment and other items necessary or helpful for the production of the Products (excluding Bailed Property, "Fastrain's Property"). Fastrain shall insure Fastrain's Property with full and extended coverage for all losses, for its full replacement value, in accordance with the terms of Section 16.

15.    Inspection and Audit Rights. Fastrain hereby grants to EMCORE and its authorized Representatives access to Fastrain's premises used in production of the Products and all pertinent documents and other information about Products, whether stored in tangible or intangible form, including any books, records and accounts, in any way related to Fastrain's performance under this Agreement (including Fastrain’s processes and procedures), Products, Bailed Property or any payment or other transaction occurring in connection with this Agreement, for the purpose of auditing Fastrain's compliance with the terms of this Agreement, including Fastrain's charges for Products, or inspecting or conducting an inventory of finished Products, work-in-process or raw-material inventory (other than the information forbidden or restrained by Governmental Authorities or Laws, or related personal information). Fastrain agrees to cooperate fully with EMCORE in connection with any such audit or inspection in necessary scope. Fastrain shall maintain, during the Term and for a period of three years after the Term, complete and accurate books and records and any other financial information. Fastrain shall segregate its records and otherwise cooperate with EMCORE so as to facilitate any audit by EMCORE. Fastrain shall reimburse EMCORE for all additional amounts paid by EMCORE associated with errors

16.    Insurance. During the Term and for a period of one year thereafter, Fastrain and any subcontractor performing services under this Agreement shall, at its own expense, maintain and carry in full force and effect commercial general liability insurance (including property insurance), all-risk property insurance covering all of Fastrain's (or the applicable subcontractor’s) material Property, including Equipment and inventory, for its full replacement value, with financially sound and reputable insurers. Upon EMCORE's reasonable request, Fastrain (or the applicable subcontractor) shall provide EMCORE with a certificate of insurance evidencing the insurance coverage specified in this Section.

17.    Miscellaneous. 

17.1    Further Assurances. Upon a Party's reasonable request and after good faith discussion, the other Party shall bear the cost and expense to execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

17.2    Relationship of the Parties. The relationship between Fastrain and EMCORE is solely that of vendor and vendee and they are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party who is not a Party to this Agreement.

17.3    Entire Agreement. This Agreement, including and together with any related exhibits, schedules and the applicable terms of any Purchase Orders and the other Transaction Documents, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

17.4    Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein will survive for any agreed period the expiration or earlier termination of this Agreement; and (b) rights and obligations arising from Sections 1, 5, 6.6, 6.7, 9.3, 9.4, 10, 11, 12, 13 and 17 of this Agreement, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement. All other provisions of this Agreement will not survive the expiration or earlier termination of this Agreement.

17.5    Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the foregoing, solely for the purposes of Sections 3.2, 3.5(b) and 7.1.2, notice by email to an individual designated in writing by the receiving Party (with confirmation of transmission) will satisfy the requirements of this Section 17.5. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Each Party shall written inform the other Party in time once the below address changes.

17.6    Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" is deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules,

17.7    Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

17.8    Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

17.9    Amendment and Modification. No amendment to, or rescission, termination or discharge of, this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.

17.10    Waiver.  

17.11    Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

17.12    Equitable Remedies. Each Party acknowledges and agrees that (a) a breach by such Party of any of its obligations under Section 13 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a

17.13    Assignment. Each Party may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Each Party may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of the Party's assets after the above written consent approval of the other Party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.

17.14    Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

17.15    No Third-Party Beneficiaries. Except as expressly set forth in the second sentence of this Section 17.15, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns. The Parties hereby designate each Indemnified Party as a third-party beneficiary of Section 10.1, each EMCORE Party as third-party beneficiaries of Section 9.3, each Fastrain Party as third-party beneficiaries of Section 5.6, each EMCORE Party and Fastrain Party as a third-party beneficiary of Section 5.7, having the right to enforce such Sections. Except as otherwise provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from the said act.

17.16    Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a "Dispute"), shall be submitted for negotiation and resolution to the General Manager of Fastrain (or to such other person of equivalent or superior position designated by Fastrain in a written Notice to EMCORE) and the SVP, Operations of EMCORE (or to such other person of equivalent or superior position designated by EMCORE in a written Notice to Fastrain), by delivery of written Notice (each, a "Dispute Notice") from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within 30 days after delivery of the applicable Dispute Notice, either Party may initiate proceedings in accordance with the provisions of Section 17.17 hereunder.

17.17    Governing Law; Submission to Jurisdiction. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance

17.18     Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, where applicable, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.

17.19    Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement, if the party sending such e-mail or other means of electronic transmission has received express confirmation that the recipient party received the Agreement (not merely an automatic email reply).

17.20    Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, infectious disease, wars or acts of terrorism) (each, a "Force Majeure Event"). Fastrain's financial inability to perform, changes in cost or availability of materials, components or services, market conditions or supplier actions or contract disputes and EMCORE's financial inability to perform, market conditions, customer

17.21    No Public Announcements or Trademark Use. Unless expressly permitted under this Agreement, neither Party shall either: