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Exhibit 10.6
INTELLECTUAL PROPERTY CONTRIBUTION AGREEMENT
This AGREEMENT
("IP AGREEMENT") dated as of September 30, 2005 is between
Visteon Corporation, a Delaware corporation
("VISTEON"), Visteon Global
Technologies, Inc., a Michigan Corporation
("VGTI"), Automotive Components
Holdings, Inc. f/k/a VFH Holdings, Inc., a
Delaware corporation, and Automotive
Components Holdings, LLC f/k/a VFH
Holdings, LLC, a Delaware limited liability
company (the "COMPANY"), a wholly-owned
subsidiary of Automotive Components
Holding, Inc.
WITNESSETH:
WHEREAS, Ford
Motor Company, a Delaware corporation ("FORD") and Visteon
are parties to a Master Agreement (the
"MASTER AGREEMENT") dated as of September
12, 2005 pursuant to which, among other
things, Visteon has agreed to enter into
a Contribution Agreement (the "CONTRIBUTION
AGREEMENT") with Automotive
Components Holdings, Inc., whereby, among
other things, and subject to the terms
and conditions set forth therein, Visteon
has agreed to contribute (or cause to
be contributed) to the Company (or one or
more Subsidiaries of the Company)
certain intellectual property assets
related to the Business as defined therein;
and
WHEREAS,
Visteon, VGTI, Automotive Components Holdings, Inc. and the
Company have agreed to enter into this IP
Agreement setting forth the
intellectual property assets to be
contributed to the Company and associated
rights and limitations thereof.
NOW THEREFORE,
in consideration of the above premises and the mutual
covenants herein contained, and for other
good and valuable consideration given
by each party hereto to the other, the
sufficiency and receipt of which are
hereby acknowledged, the parties hereto,
for themselves, their successors and
permitted assigns, intending to be legally
bound, agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) Capitalized
terms used but otherwise not defined
herein shall have the meanings as assigned
to them in the Contribution
Agreement.
(b) The
following terms, as used herein, have the following meanings:
"Company Only
Products and Technologies" means the following products and
technologies manufactured only by the
Company as of the Closing Date, for
manufacture and sale to any customer,
including any improvements or developments
for currently produced products or those in
the current cycle plan for Plants
which have passed the Visteon CDP Gate 2
(or equivalent) approval, except that
any such improvements or developments 1)
that are subject to pre-existing
contractual obligations that prevent
transfer to Company are not to be included
or 2) that are subject to a joint
development
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agreement with non-Ford OEM's, or other
suppliers, subject to mutual agreement
of inclusion, or exclusion, between the
parties: Driveshafts, Catalytic
Converters, Body Stampings, Stabilizer
Bars, Steering Columns, RV Steering
Gears, Steering Pumps, Seat Foam, Wiper
Motors, Glass.
"Copyrights"
mean (i) any copyright in any original works of authorship in
technology fixed in any tangible medium of
expression as set forth in 17 U.S.C.
Section 101 et. seq., whether registered or
unregistered, including any
applications for registration thereof, (ii)
any corresponding foreign copyrights
under the laws of any jurisdiction, in each
case, whether registered or
unregistered, and any applications for
registration thereof, and (iii) Common
Law or moral rights under the laws of any
jurisdiction.
"Core Shared
Products and Technologies" means Shared Products and
Technologies for any of the following
products or technologies: HVAC Air
Handling Systems, HVAC Manual Controls,
Heater Cores, Radiators, Cooling Modules
(FEM), Headlamps, Rear Lamps, Cockpit
Modules, Instrument Panels, Consoles, Door
Panels/Trim, Glove Box, Sys/Finish
Panel/Defroster Grilles, Air Induction
Systems.
"Derivative
Work" means a work of authorship based on one or more
preexisting works, including, without
limitation, a translation, condensation,
transformation, expansion or adaptation,
which, if prepared without
authorization of the owner of the copyright
of such preexisting work, would
constitute a copyright infringement. The
term "Derivative Work" does not include
the preexisting work upon which the
Derivative Work is based.
"Engineering
Design Tools" means product specific tools or data (software
or hardcopy) specifically designed or
utilized to design, model, simulate, or
visualize the product or process used to
make the product including all
supporting documentation for such tools.
Examples may include: CAD, CAE, CAM,
Knowledge Based Engineering applications
and Engineering Design Manuals or Check
Lists. Specifically excluded from this
definition are standard computer design
tools and software which are covered under
the Software License and Contribution
Agreement. All of the Engineering Design
Tools listed in any Attachment to an
Appendix are subject to the terms of any
preexisting contracts. Such Engineering
Design Tools are provided on an "as-is"
basis, without any commitments by either
party that maintenance or any other support
will be provided in the future.
"Invention
Disclosure" means a disclosure of an invention which (i) is
written for the purpose of recording the
conception or reduction to practice of
an invention, and (ii) is maintained with a
control number in the owning party's
records.
"Joint Venture
Company" means a company in which Visteon or one or more of
its Subsidiaries or Affiliates owns or
controls, directly or indirectly, more
than 33% of the voting shares or other
equity interest.
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"Mask Work
Rights" means (i) any rights in mask works as defined in 17
U.S.C. Section 901, whether registered or
unregistered, including applications
for registration thereof, and (ii) any
foreign rights in semiconductor
topologies under the laws of any
jurisdiction, whether registered or
unregistered, including applications for
registration thereof.
"Non-Core Shared
Products and Technologies" means Shared Products and
Technologies for any of the following
products or technologies: Axles, Power
Take-off Unit (PTU), Manual Steering Gears,
HPAS Steering Gears, Ignition
Systems, Air Charging Assemblies, Throttle
Bodies, Fuel Charge Assemblies, Fuel
Injectors, Air/Fuel Charging Assemblies,
Integrated Air/Fuel Modules, Fuel
Pumps.
"Non-Patented
Product Design IP and Manufacturing IP" means all (1)
research, product designs, technological
models, algorithms, manufacturing
processes, design processes, behavioral
models, logic diagrams, schematics, test
vectors, know-how, computer and electronic
data processing and other apparatus
programs and software (object code and
source code), optical, hydraulic and
fluidic apparatus and processes, chemical
processing, databases and
documentation thereof, technical
information, data, specifications, drawings,
records, documentation, mask works,
Invention Disclosures, works of authorship
or other creative works, or websites, all
of which exist at the Closing Date,
and (2) Trade Secrets, Mask Work Rights,
and Copyrights, related to those items
described in (1) above and which exist at
the Closing Date, for which Visteon
has the right to assign or to grant
licenses, including those stated in the
Appendices hereof. Such Non-Patented
Intellectual Property is provided on an
"as-is" basis, without any commitments by
either party that maintenance or any
other support will be provided in the
future.
"Patents" means
those worldwide patents (including patents of importation,
patents of confirmation, patents of
improvement, patents and certificates of
addition and utility model patents, as well
as divisions, reissues,
continuations, continuations-in-part,
reexamination certificates, renewals and
extensions of any of the foregoing),
pending patent applications, Invention
Disclosures submitted prior to the Closing
Date and patent applications based
thereon and patents which may issue from
such applications after the Closing
Date for which Visteon has the right to
assign or to grant licenses and which
are identified in the Appendices
hereof.
"Region" means
any one country of a group in North America, South America,
Europe, Africa and Asia Pacific (including
but not limited to China, Korea,
Japan, Viet Nam, Australia and India).
"Shared Products
and Technologies" means products made at both Visteon and
Plants as of the Closing Date, for
manufacture and sale to any customer,
including any improvements or developments
for currently produced products or
those in the current cycle plan for Plants
which have passed the Visteon CDP
Gate 2 (or equivalent) approval, except
that any such improvements or
developments 1) that are subject to
pre-existing contractual obligations that
prevent transfer to Company or one of its
Affiliates
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or Subsidiaries are not to be included or
2) that are subject to a joint
development agreement with non-Ford OEM's,
or other suppliers, subject to mutual
agreement of inclusion, or exclusion,
between the parties.
"Trademarks"
means trademarks, service marks and trade names.
"Trade Secrets"
means business and technical methods, processes,
information, compilations and know-how that
are not publicly known and which
give the owner a competitive advantage in
its business. Such Trade Secrets are
provided on an "as-is" basis, without any
commitments by either party that
maintenance or any other support will be
provided in the future.
ARTICLE 2
CONTRIBUTION
Section 2.01.
Contribution. Visteon and VGTI hereby transfer and deliver,
or cause to be transferred and delivered,
to the Company (or one or more
Subsidiaries of the Company formed pursuant
to the Contribution Agreement as the
Company may designate prior to the Closing)
at the Closing the Licensed
Intellectual Property Rights and Owned
Intellectual Property Rights as set forth
in the Appendices attached hereto, subject
to the rights and limitations set
forth therein, as a capital contribution,
free and clear of all Liens, other
than Permitted Liens.
Section 2.02.
Visteon and VGTI hereby transfer and contribute to the
capital of the Company their entire right,
title, and interest in and to any and
all causes of action and rights of recovery
for past infringement of the
Licensed Intellectual Property Rights and
Owned Intellectual Property Rights
assigned to the Company in Section 2.01
above.
Section 2.03.
The transfers provided in this Article 2 are subject to
existing and contingent obligations Visteon
and VGTI may have under contracts
with third parties. As soon as practicable
after execution of the Contribution
Agreement, Visteon, VGTI and the Company
will review and take action using
commercially reasonable efforts consistent
with Section 2.05 of the Contribution
Agreement to modify those contracts which
are affected by the transfers provided
in this Article 2, and take such actions as
are necessary to reflect Company
ownership, including transfer to the
Company of the right to receive royalty
payments where required.
Section 2.04.
Upon request by the Company, all documents and papers shall
be executed, and all commercially
reasonable assistance shall be furnished by
Visteon and VGTI to enable the Company to
obtain and perfect any and all rights
assigned to the Company in Section 2.01
above. Such assistance shall include,
but not be limited to, assistance needed
to: (1) establish in the Company title
to Engineering Design Tools, Non-Patented
Intellectual Property, Patents and
Trademarks; (2) enable t
