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Exhibit 10.7
SOFTWARE LICENSE AND CONTRIBUTION AGREEMENT
This SOFTWARE
AGREEMENT ("Software Agreement") dated as of September 30,
2005 is made by and among VISTEON
CORPORATION, a Delaware corporation
("Visteon"), VISTEON GLOBAL TECHNOLOGIES,
INC., a Michigan Corporation ("VGTI"),
and AUTOMOTIVE COMPONENTS HOLDINGS, INC., a
Delaware corporation (the
"Company"), and shall be effective as of
the closing of the Contribution
Agreement (as defined below) (such time,
the "Effective Time"). Visteon and the
Company are each individually referred to
herein as a "Party," and collectively,
as the "Parties."
WITNESSETH:
WHEREAS, Visteon
and the Company have entered into a Contribution Agreement
dated as of September 12, 2005 (the
"Contribution Agreement") pursuant to which,
among other things, Visteon has transferred
(or caused to be transferred) to
Automotive Components Holdings, LLC, a
Delaware limited liability company and
wholly owned subsidiary of the Company
("ACH LLC"), certain intellectual
property and software assets related to the
Business (as defined in the
Contribution Agreement);
WHEREAS,
Visteon, VGTI, the Company and ACH LLC have entered into,
concurrently with the execution and
delivery of this Agreement, an Intellectual
Property Contribution Agreement (the "IP
Agreement") setting forth intellectual
property assets to be contributed to ACH
LLC and associated rights and
limitations thereof;
WHEREAS, Visteon
and ACH LLC have entered into, concurrently with the
execution and delivery of this Agreement, a
Master Services Agreement (the
"Master Services Agreement"), whereby
certain Services (as defined in the Master
Services Agreement) will be provided by
Visteon to ACH LLC, its Affiliates, Ford
Motor Company and certain ACH Buyers (as
defined herein); and
WHEREAS, it is a
condition of the Contribution Agreement that Visteon, VGTI
and the Company enter into this Software
Agreement, which sets forth the terms
and conditions under which certain software
will be contributed or licensed by
Visteon and VGTI to the Company, its
Affiliates and certain ACH Buyers as of the
Effective Time.
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:
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ARTICLE 1.
DEFINITIONS
Section 1.01 Definitions.
Capitalized
terms set forth in this Agreement (including any plurals) shall
have the meanings set forth in this in
Article 1 when such terms are used in
this Agreement. Capitalized terms used
herein or not otherwise defined shall
have the meanings ascribed to them in the
Contribution Agreement.
"Confidential
Information" has the meaning set forth in Section 5.01.
"Consent
Expenses" means any costs and expenses incurred by Visteon,
other
than Transfer Fees, associated with
obtaining any necessary consents,
permissions and waivers required for
Visteon to make the contribution and grant
of licenses granted to any of the Company,
ACH LLC and Ford under and during the
term of this Software Agreement.
"Contributed
Software" means Contributed Visteon Owned Software and
Contributed Third Party Software.
"Contributed
Software Infringement Claims" has the meaning set forth in
Section 2.03.
"Contributed
Third Party Software" has the meaning set forth in Section
2.02.
"Contributed
Visteon Owned Software" has the meaning set forth in Section
2.01.
"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.
"Licensed
Services Software" has the meaning set forth in Section 3.03.
"Licensed
Software" means Licensed Visteon Owned Software, Licensed
Visteon
Third Party Software and Licensed Services
Software.
"Licensed
Visteon Owned Software" has the meaning set forth in Section
3.01.
"Licensed
Visteon Third Party Software" has the meaning set forth in
Section 3.02.
"Manuals and
Documentation" means all design specifications, operating
manuals, user manuals, operating
instructions and other information, in written
or electronic form, for operation of any
Software.
"Services" shall
have the meaning ascribed thereto in the Master Services
Agreement.
"Software" means
computer programs, whether represented in object code,
source code, or any other format, as well
as any customization of such programs
and any modifications,
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enhancements, updates, upgrades, Derivative
Works or subsequent releases
thereto, but excluding any such computer
programs, whether represented in object
code, source code, or any other format, as
well as any customization of such
programs and any modifications,
enhancements, updates, upgrades or subsequent
releases thereto included in Engineering
Design Tools or Non-Patented Product
Design IP and Manufacturing IP as set forth
in the IP Agreement.
"Third Party
Software" has the meaning set forth in Section 7.02.
"Transfer Fees"
means any fees paid to a third-party software licensor that
are necessary for Visteon to make the
contributions made and grant the licenses
to the Company granted under this Software
Agreement.
"Visteon
Licensed Software" shall have the meaning ascribed thereto in
the
Master Services Agreement.
"Visteon Owned
Software" shall have the meaning ascribed thereto in the
Master Services Agreement.
"ACH Buyer"
shall have the meaning ascribed thereto in the Master Services
Agreement.
ARTICLE 2.
CONTRIBUTION OF SOFTWARE USED SOLELY FOR THE BUSINESS
Section 2.01 Contribution of Visteon Owned
Software Used Solely for the
Business.
Except as
otherwise provided in Section 2.02 of the Contribution
Agreement,
upon the terms and subject to the
conditions of this Agreement (including
Section 7.02 below), Visteon and VGTI agree
to convey, transfer, assign and
deliver, or cause to be conveyed,
transferred, assigned and delivered, to ACH
LLC (a direct, wholly-owned Subsidiary of
the Company), or one or more other
Subsidiaries of the Company as the Company
may designate prior to the Closing,
at (and not before) the Closing as a
capital contribution, free and clear of all
Liens, other than Permitted Liens, all of
Visteon's and VGTI's right, title and
interest in, and to the Software owned (and
not licensed) by Visteon, together
with all existing maintenance and support
obligations for such Software, that is
used solely (i) for the operation of, or
(ii) to support, the Business
(collectively the "Contributed Visteon
Owned Software") as the same shall exist
on the Closing Date. Contributed Visteon
Owned Software shall not include
Contributed Third Party Software, Licensed
Visteon Third Party Software and
Licensed Visteon Owned Software. Subject to
Section 7.03 herein, all Contributed
Visteon Owned Software is set forth in
Schedule 1 hereof.
Section 2.02 Contribution of Certain
Visteon Licensed Software Used Solely for
the Business.
Except as
otherwise provided in Section 2.02 of the Contribution
Agreement,
upon the terms and subject to the
conditions of this Agreement (including
Section 7.02 below), Visteon and VGTI agree
to convey, transfer, assign and
deliver, or cause to be conveyed,
transferred, assigned and delivered, to ACH
LLC (a direct, wholly-owned Subsidiary of
the Company), or one or more other
Subsidiaries of the Company as the Company
may designate prior to the
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Closing, at (and not before) the Closing as
a capital contribution, free and
clear of all Liens, other than Permitted
Liens, all of Visteon's and its VGTI's
right, title and interest in, to the
Software licensed (as opposed to owned) by
Visteon, together with all existing prepaid
maintenance and support for such
Software, (a) that is used solely (i) for
the operation of, or (ii) to support
of the Business, or (b) that is held under
user, site or other forms of
divisible licenses or ownership, as opposed
to non-divisible or concurrent
licenses held by Visteon, and the divisible
portion thereof is used solely (i)
for the operation of, or (ii) to support
the Business (collectively "Contributed
Third Party Software"), as the same shall
exist on the Closing Date. Contributed
Third Party Software shall not include
Contributed Visteon Owned Software,
Licensed Visteon Third Party Software and
Licensed Visteon Owned Software.
Subject to Section 7.03 herein, all
Contributed Third Party Software is set
forth in Schedule 2 hereof.
Section 2.03 Infringement Claims and
Actions.
With respect to
the Contributed Visteon Owned Software and Contributed
Third Party Software only, and except as
otherwise provided in Section 2.02 of
the Contribution Agreement, upon the terms
and subject to the conditions of this
Agreement (including Section 7.02 below),
Visteon and VGTI agree to convey,
transfer, assign and deliver, or cause to
be conveyed, transferred, assigned and
delivered, to ACH LLC (a direct,
wholly-owned Subsidiary of the Company), or one
or more other Subsidiaries of the Company
as the Company may designate prior to
the Closing, at (and not before) the
Closing as a capital contribution, free and
clear of all Liens, other than Permitted
Liens, all of Visteon's and VGTI's
right, title and interest in (i) all
intellectual property, and (ii) all causes
of action and rights of recovery for past
infringement of the intellectual
property, to the extent such intellectual
property, causes of action and right
of recovery are owned by Visteon and VGTI
and are associated solely with the
Contributed Visteon Owned Software and
Contributed Third Party Software
(collectively "Contributed Software
Infringement Claims") as the same shall
exist on the Closing Date. For the
avoidance of doubt, Contributed Software
Infringement Claims shall not include any
causes of action or rights of recovery
of Visteon and VGTI with respect to
Licensed Visteon Third Party Software and
Licensed Visteon Software.
Section 2.04 Manuals and Documentation.
To the extent
Visteon and VGTI possess Manuals and Documentation related to
the Contributed Visteon Software and the
Contributed Third Party Software,
Visteon and VGTI shall provide such Manuals
and Documentation to the Company.
Section 2.05 Transfer or Assignment of
Contributed Software and Infringement
Claims.
As soon as
practicable after execution of this Software Agreement, and
subject to the terms and conditions of this
Agreement, Visteon, VGTI and the
Company will (i) review and prepare
proposed modifications to those contracts
that are affected by the transfers provided
in this Article 2. The Parties will
then seek consent from any third party
licensors affected by such proposed
modifications, and, (ii) in accordance with
any requirements of such third party
licensors, shall take such actions as are
necessary to establish and reflect the
Company ownership, including transfer to
the Company of the right to receive
royalty payments where required.
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Section 2.06 Consideration.
The
contributions made pursuant to this Article 2 and the grant of
the
licenses set forth in Article 3 below to
the Company are made by Visteon and
VGTI pursuant to the obligations under the
Contribution Agreement and in
consideration set forth therein.
ARTICLE 3.
SOFTWARE LICENSES
Section 3.01 Licensed Visteon Owned
Software.
Subject to
Article 5 and Section 7.02 below, Visteon and VGTI hereby grant
to the Company and the Company hereby
accepts, a nonexclusive, paid-up,
perpetual, royalty-free, worldwide, license
or sublicense, severable and
separately assignable only as permitted
under the Section 3.04 herein, including
the rights and license to use, perform,
display, copy, obtain services and to
prepare Derivative Works, to all Visteon
Owned Software (other than Contributed
Visteon Owned Software) that is used by
Visteon (i) for the operation of, or
(ii) to support the Business, as the same
shall exist on the Closing Date
("Licensed Visteon Owned Software"). Such
license shall include the right of the
Company to grant a sublicense to the
Company's Subsidiaries and to Ford Motor
Company for so long as the Company remains
a subsidiary of Visteon or is
controlled by Ford or an Affiliate thereof
("Ford"). Licensed Visteon Owned
Software shall not include Contributed
Visteon Owned Software, Contributed Third
Party Software, and Licensed Visteon Third
Party Software. Subject to Section
7.03, all Licensed Visteon Owned Software
is set forth in Schedule 3 hereof.
Section 3.02 Licensed Visteon Third Party
Software.
Subject to
Section 3.04, Section 3.07(b), Article 5 and Section 7.02
below,
Visteon and VGTI hereby grant to the
Company (which such license shall include
the right to grant sublicenses to the
Company's Subsidiaries and to Ford for so
long as the Company remains a subsidiary of
Visteon or is controlled by Ford),
and the Company hereby accepts, a
non-exclusive, paid-up, royalty free license
or sub-license, as applicable, severable
and separately assignable, to access,
use, perform, display prepare Derivative
Works and/or reproduce, for the
Company's internal business purposes the
Visteon Licensed Software, together
with all existing prepaid maintenance and
support for such Visteon Licensed
Software, (a) that is used by Visteon (i)
for the operation of, or (ii) to
support of the Business, and (b) that is
held by Visteon under non-divisible or
concurrent licenses and used by Visteon (i)
for the operation of, or (ii) to
support the Business, as the same shall
exist on the Closing Date, other than
included in Contributed Visteon Owned
Software, Contributed Third Party
Software, and Licensed Visteon Owned
Software ("Licensed Visteon Third Party
Software"). Subject to Section 7.03, all
Licensed Visteon Third Party Software
is set forth in Schedule 4 hereof. All
prepaid fees for software maintenance and
licensing agreements relating to Licensed
Visteon Third Party Software existing
as of the date hereof are set forth in
reasonable detail on Schedule 5 hereof.
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Section 3.03 Licensed Services
Software.
Subject to
Section 3.04, Section 3.07(b), Article 5 and Section 7.02
below,
and solely to the extent necessary to
permit the Company to receive the Services
under the Master Services Agreemen
