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EXHIBIT 10.3
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ASPEN
TECHNOLOGY LICENSE AGREEMENT
THIS HYPROTECH
LICENSE AGREEMENT (the "AGREEMENT") is made and entered into
as of this 23rd day of December, 2004 (the
"EFFECTIVE DATE"), by and between
Aspen Technology, Inc., a Delaware
corporation ("ASPENTECH"), and Honeywell
International Inc., a Delaware corporation
("HONEYWELL"). AspenTech and
Honeywell are each referred to herein as a
"PARTY" and collectively as the
"PARTIES." All capitalized terms that are
not otherwise defined herein shall
have the respective meanings ascribed to
such terms in the Purchase and Sale
Agreement dated as of October 6, 2004 by
and among AspenTech, certain of its
affiliates, and Honeywell (the "PURCHASE
AGREEMENT").
WHEREAS,
AspenTech and Honeywell have entered into the Purchase
Agreement
pursuant to which AspenTech has agreed,
subject to the terms and conditions set
forth therein, to transfer to Honeywell all
of its right, title and interest in
and to certain Engineering Software Assets,
including the Assigned Intellectual
Property, effective as of the Closing Date
subject to the non-exclusive licenses
set forth in this Agreement; and
WHEREAS, in
connection with the transactions contemplated by the Purchase
Agreement, AspenTech desires to retain
certain rights and licenses with respect
to IT Property and Assigned Intellectual
Property as set forth herein.
NOW THEREFORE,
in consideration of the mutual agreements and covenants set
forth herein, Honeywell and AspenTech
hereby agree as follows:
1. DEFINITIONS
For purposes of this
Agreement, the following capitalized terms shall have
the following meanings:
1.1 "ASPENTECH RELATED PARTY" means
(a) any sublicensee, customer,
distributor, reseller, OEM, joint venturer,
partner, agent or direct or indirect
sales channels of AspenTech, any of its
Affiliates, or any of the foregoing
parties, or (b) any other person or entity
with which AspenTech or any of its
Affiliates has a continuing business
relationship; PROVIDED, HOWEVER, that the
following persons and entities shall not be
considered to be AspenTech Related
Parties: (i) [**] and its successors or
assigns, and (ii) for purposes of the
[**].
1.2 "CONFIDENTIAL LICENSED PROPERTY"
means Licensed Property that
AspenTech or its Affiliates treated as
confidential as of the Effective Date.
1.3 "EXISTING OTS CONTRACTS" means (a)
each Retained AspenTech Contract
(as defined in the Subcontract Agreement),
(b) each Assigned Contract for which
customer consent for assignment is not
obtained until such time as such customer
consent has been obtained, (c)
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each contract set forth on Schedule
1.1(b)(ii) to the Purchase Agreement (other
than Multi-Product Agreements) and (d) any
change orders to any of the foregoing
agreements made in the ordinary course
consistent with AspenTech's past
practice.
1.4 "HYPROTECH PROPERTY" means all of
AspenTech's right, title and
interest (immediately prior to the Closing)
in and to all IT Property other than
the Operator Training Property and the
MUSIC Product. For purpose of clarity,
the Hyprotech Property includes, without
limitation, the Hyprotech Products and
Genesis Project Materials.
1.5 "HYPROTECH IP" means all of
AspenTech's right, title and interest
(immediately prior to the Closing) in and
to all Intellectual Property embodied
in the IT Property (including, without
limitation, the Hyprotech Property),
exclusive of the Operator Training IP and
the MUSIC IP.
1.6 "IP MATERIAL ADVERSE EFFECT" means
any material breach or violation by
an AspenTech Related Party of a Sublicense
Agreement (as defined in Section 2.3
below) or an infringement or
misappropriation by an AspenTech Related Party of
the Licensed Property and/or Licensed IP
that, in AspenTech's reasonable
judgment, gives rise to: (i) a threat of
abandonment of, or (ii) an impingement
upon the validity or enforceability of, in
each case, any item of Licensed
Property and/or Licensed IP.
1.7 "INTELLECTUAL PROPERTY" means all
(a) registered and unregistered
statutory and common law copyrights,
whether published or unpublished, works of
authorship, and all registrations,
applications for registration, and renewals
thereof, (b) trade secrets, know-how,
confidential information, processes and
formulas, (c) patents and patent
applications, invention disclosures, industrial
or utility models, and inventors
certificates throughout the world and all
inventions contained therein, all
provisional, divisional, continuation,
continuation-in-part, or substitute
applications based on the foregoing, any
patents that shall issue on any of the
foregoing or on any improvements,
reissues, or reexaminations thereof, and
patents and patent applications,
including, without limitation, to patents
of importation, improvement, or
addition, utility models, and inventors
certificates, corresponding in whole or
in part to any of the above-described
patent and patent applications that are
issued, filed, or to be filed in any and
all countries, and any patents that
shall subsequently issue therefrom
including any renewals, divisions, reissues,
continuations, or extensions thereof, (d)
data rights and information, and (e)
other intellectual property and proprietary
rights whether patented or
unpatented, or registered or
unregistered.
1.8 "LICENSED IP" means the Operator
Training IP, MUSIC IP, and the
Hyprotech IP.
1.9 "LICENSED PROPERTY" means the
Operator Training Property, MUSIC
Product and Hyprotech Property.
1.10 "MAJOR
PRODUCT LINE" means the Licensed Property that comprises or
relates primarily to each of the following
five product families: (i) HYSYS and
related options and extensions, including
ComThermo, (ii) Batch processing
products (i.e., BDK), (iii) Heat exchanger
products (i.e., TASC, ACOL, APLE,
FIHR, etc.), (iv) Conceptual engineering
products (i.e. HX-NET, Distil), and (v)
Hydraulics (i.e., all the ProFES and
related products).
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1.11 "MAJOR
PRODUCT LINE IP" means the Licensed IP in and to each Major
Product Line.
1.12 "MAJOR
PRODUCT LINE ACQUIRER" means an acquirer of all or
substantially all of the business of
AspenTech and its Affiliates that relates
to any Major Product Line.
1.13 "MUSIC IP"
means all of AspenTech's right, title and interest
(immediately prior to the Closing) in and
to all Intellectual Property embodied
in the MUSIC Product.
1.14 "MUSIC
PRODUCT" means all of AspenTech's right, title and interest
(immediately prior to Closing) in and to
the (a) computer programs (including
code in source code, object code and
executable forms), interfaces, tools
(including, without limitation, internal
development and migration tools),
development environments, flow charts,
libraries, modules, add-ons, patches, bug
fixes, object libraries, test programs,
regression test software, proprietary
programming languages, enhancements,
customizations, scripts, utilities,
databases, data and algorithms constituting
or embodied in the Assigned Products
known as "MUSIC", and the interfaces,
programs and modules related thereto that
are set forth in Schedule 1.1(a)(i)(B) of
the Purchase Agreement; and (b)
Documentation and Records for the MUSIC
product.
1.15 "OBJECT
CODE FORM" means a form of software code resulting from the
translation or processing of software in
Source Code Form by a computer into
machine language or intermediate code or
other executable code, which thus is in
a form that would not be convenient to
human understanding of the program.
1.16 "OPERATOR
TRAINING IP" means all of AspenTech's right, title and
interest (immediately prior to the Closing)
in and to all Intellectual Property
embodied in the Operator Training Property,
excluding the MUSIC IP.
1.17 "OPERATOR
TRAINING PROPERTY" means all of AspenTech's right, title and
interest (immediately prior to Closing) in
and to the (a) Operator Training
Products and the (b) Documentation and
Records related solely to the Operator
Training Products, excluding in all cases
the MUSIC Product.
1.18 "OTS FIELD
OF USE" means the provision of Restricted Services.
1.19 "OTS TERM"
means the period starting as of the Effective Date and
ending upon the expiration or termination
of all obligations of AspenTech and
its Affiliates under all of the Existing
OTS Contracts.
1.20 "SOFTWARE
SUPPORT AGREEMENT" means the agreement entered into by the
Parties simultaneously herewith and
entitled the Software Support Agreement.
1.21 "SOURCE
CODE FORM" means a form of software code in which a computer
program's logic is easily deduced by a
human being with skill in the art.
1.22
"SUBCONTRACT AGREEMENT" means the Subcontract Agreement entered
into
by the Parties simultaneously herewith.
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1.23 "THIRD
PARTY" means a person or entity other than AspenTech or its
Affiliates.
1.24
"THIRD-PARTY PRODUCT" means a product that is not marketed,
licensed,
or sold by (a) AspenTech or any of its
Affiliates (or any of their respective
permitted assignees or permitted
successors), distributors, resellers, OEMs,
agents, or other indirect sales channels of
any of the foregoing persons or
entities, or (b) a joint venture or
partnership of AspenTech, or other Third
Party with which AspenTech or any of its
Affiliates has a continuing business
relationship for the development,
marketing, sales, or distribution of such
product.
2. LICENSE
2.1 LICENSED RIGHTS.
a. GENERAL
LICENSE TO HYPROTECH IP. AspenTech retains under the
Hyprotech IP and the Hyprotech Property a
worldwide, non-exclusive,
royalty-free, perpetual, irrevocable right
and license, with the right to
sublicense solely as set forth in Sections
2.2 and 2.3 below (provided that
AspenTech shall remain subject to the
restrictions set forth in Sections 2.1(e),
2.5(a), 5.1, 5.2 and 5.4 below in granting
any such sublicense), (A) to make,
have made, use, have used, sell, have sold,
offer to sell, and import any
product or provide any service covered by
the Hyprotech IP and exercise any
other rights in the Hyprotech IP in
connection therewith, and (B) to copy,
modify, enhance, prepare derivative works
of, improve, maintain, support,
develop, demonstrate, promote, distribute
and transmit the Hyprotech Property
(in Source Code Form, Object Code Form or
any other applicable form) and any
derivative work thereof, in each case, for
any purpose.
b. FIELD LICENSE
TO MUSIC. AspenTech retains under the MUSIC Product
and MUSIC IP, a worldwide, non-exclusive,
royalty-free, perpetual, irrevocable
right and license, with the right to
sublicense solely as set forth in Sections
2.2 and 2.3 below (provided that AspenTech
shall remain subject to the
restrictions set forth in Sections 2.1(e),
2.5(a), 5.1, 5.2 and 5.4 below in
granting any such sublicense), (A) to make,
have made, use, have used, sell,
have sold, offer to sell, and import any
product or provide service covered by
the MUSIC IP and exercise any other rights
in the MUSIC IP in connection
therewith, in each case, solely outside of
the OTS Field of Use, and (B) to
copy, modify, enhance, prepare derivative
works of, improve, maintain, support,
develop, demonstrate, promote, distribute
and transmit the MUSIC Product (in
Source Code Form, Object Code Form or any
other applicable form) and any
derivative work thereof, in each case,
solely for use outside of the OTS Field
of Use.
c. PROJECT
LICENSE TO OPERATOR TRAINING PRODUCTS. During the OTS
Term, AspenTech retains under the Operator
Training IP and Operator Training
Property, a worldwide, non-exclusive,
royalty-free right and license, with the
right to sublicense, solely as set forth in
Sections 2.2 and 2.3 below (provided
that AspenTech shall remain subject to the
restrictions set forth in Sections
2.1(e), 2.5(a), 5.1, 5.2 and 5.4 below in
granting any such sublicense), to
exercise any rights in the Operator
Training IP and the Operator Training
Property (in Source Code Form, Object Code
Form or any other applicable form)
solely in connection with performing the
Existing OTS Contracts which Existing
OTS Contracts shall not be renewed and
shall not be amended (other than change
orders made in the ordinary course of
business
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consistent with AspenTech's past practice).
The rights and licenses set forth in
this Section 2.1(c) shall terminate upon
the termination of the OTS Term.
d. NO UPDATES.
For avoidance of doubt, the licenses set forth in
this Section 2.1 are limited to the
Licensed Property and Licensed IP existing
as of the Effective Date and do not include
products relating thereto or
Intellectual Property therein that are, in
each case, developed by or for
Honeywell after the Effective Date.
e. DISCLOSURE.
Subject to the terms of this Agreement, the rights
and licenses set forth in Sections 2.1(a)
and (b) and 2.2 include the right to
disclose the Source Code Form of the
applicable Licensed Property, PROVIDED THAT
such disclosure is in accordance with the
obligations and restrictions set forth
in Sections 2.2 and 2.3 of this Agreement
and the confidentiality obligations
and restrictions set forth in Section 5.1,
5.2, and 5.4 of this Agreement.
f.
IRREVOCABILITY. Notwithstanding anything to the contrary in
this
Agreement or otherwise, the rights and
licenses set forth under Sections 2.1(a),
2.1(b) and 2.2 hereof shall be irrevocable
and non-terminable, and such rights
and licenses shall survive and shall remain
irrevocable and non-terminable
regardless of any breach or termination of
this Agreement for any reason.
2.2 SUBLICENSING. AspenTech shall have
the right to grant licenses and/or
sublicenses (with the rights of the
licensees and/or sublicensees to grant
further sublicenses) of any of the rights
and licenses set forth in Sections
2.1(a), 2.1(b) or 2.1(c); PROVIDED,
HOWEVER, that AspenTech shall not have the
right to grant to any Third Party (a) a
sublicense of its rights in the
Hyprotech Products or MUSIC Products in
Source Code Form that authorizes or
grants rights to such Third Party to
further sublicense such Hyprotech Products
or MUSIC Products in Source Code Form; (b)
a sublicense of its rights in the
Hyprotech Products or MUSIC Products in
Source Code Form or Object Code Form
that authorizes or grants rights to such
Third Party to incorporate or bundle
(in whole or in part) such Hyprotech
Products or MUSIC Products in Source Code
Form or Object Code Form into a Third-Party
Product for purposes of the
distribution or sale of such Third-Party
Product; or (c) a sublicense of its
rights in the Hyprotech Products or MUSIC
Products in Source Code Form that
authorizes or grants rights to such Third
Party to use (in whole or in part)
such Hyprotech Products or MUSIC Products
in Source Code Form in a Third-Party
Product for purposes of the distribution or
sale of such Third Party Product;
PROVIDED FURTHER THAT AspenTech shall not
have the right to grant to any Third
Party a sublicense of the Operator Training
Products in Source Code Form, except
in connection with the performance of the
Existing OTS Contracts.
Notwithstanding the limitations set forth
in this Section 2.2, AspenTech shall
have the right to grant to any Major
Product Line Acquirer a worldwide,
perpetual, irrevocable, sole and exclusive
right and sublicense under all of the
applicable rights and licenses set forth in
Sections 2.1(a) and/or 2.1(b) (with
the rights of such Major Product Line
Acquirer to grant further sublicenses)
with respect to the Major Product Line IP
for the Major Product Line acquired by
such Major Product Line Acquirer (each, a
"MAJOR PRODUCT LINE SUBLICENSE"). For
avoidance of doubt, any sublicense by the
Major Product Line Acquirer of the
Major Product Line IP to AspenTech or its
Affiliates shall be subject to the
restrictions set forth herein on
sublicensing to Third Parties as if AspenTech
and its Affiliates were Third Parties.
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2.3 SUBLICENSES. Without limiting the
terms and conditions of Section 2.2,
Asp
