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Exhibit
10.2
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT (the
“ Agreement ”), dated as of September 12,
2007 (the “ Effective Date ”), is by and between
Intel Corporation , a Delaware corporation (the “
Seller ”) and RadiSys Corporation , an Oregon
corporation (the “ Buyer ”). Seller and Buyer
are sometimes referred to as the “ Parties ” and
each individually as a “ Party ”.
WHEREAS, Buyer and Seller
have entered into the Asset Purchase Agreement and certain
Acquisition Documents, dated as of September 7, 2007, pursuant
to which Seller agreed to sell to Buyer, and Buyer agreed to
acquire from Seller, the Transferred Assets, and Buyer agreed to
assume the Assumed Liabilities; and
WHEREAS, during a
transitional period following the Closing Date, Seller will perform
Seller Transition Services, and Buyer will perform the Buyer
Transition Services and certain other obligations with respect
thereto, each as required by the terms of this Agreement, in order
to transition the production, sale and support of the Products from
Seller to Buyer and to facilitate the transactions contemplated by
the Asset Purchase Agreement, and Buyer will compensate Seller for
such services.
NOW, THEREFORE, in
consideration of the foregoing and the mutual agreements and
covenants contained herein, the Parties hereto agree as
follows:
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Definitions . Capitalized terms used, but not
defined, in this Agreement shall have the meanings ascribed to such
terms in the Asset Purchase Agreement. The definitions set forth in
this Agreement shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without limitation.” All
references herein to Sections and Exhibits shall be deemed to be
references to Sections of, and Exhibits to, this Agreement unless
the context shall otherwise require. Unless the context shall
otherwise require, any reference to any contract, instrument,
statute, rule or regulation is a reference to it as amended and
supplemented from time to time (and, in the case of a statute, rule
or regulation, to any successor provision). Any reference in this
Agreement to a “day” or a number of “days”
(without the explicit qualification of “Business”)
shall be interpreted as a reference to a calendar day or number of
calendar days. The following terms, as used herein, have the
following meanings: |
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1.1. |
“ Acquisition Documents ” has the meaning
set forth in the Asset Purchase Agreement. |
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1.2. |
“ Affiliate ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.3. |
“ Applicable Law ” has the meaning set forth
in the Asset Purchase Agreement. |
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1.4. |
“ Asset Purchase Agreement ” means the Asset
Purchase Agreement entered into by the Seller and Buyer
concurrently with this Agreement and effective as of the Closing
Date. |
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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1.5. |
“ Assigned Matters ” mean those
modifications to Buyer’s Products that (a) do not use
and are not based on or developed from Seller Confidential
Information or Seller Proprietary Products; and (b) which are
created solely and exclusively in the performance of the Transition
Services during the Term of this Agreement; and (c) that are
exclusively embodied in the Products; and (d) used exclusively
in the Business; and (e) not embodied or used in or with any
other current product or service or planned product or service of
Seller or its Subsidiaries. |
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1.6. |
“ Business ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.7. |
“ Business Day ” has the meaning set forth
in the Asset Purchase Agreement. |
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1.8. |
“Buyer Matters ” means all software, Buyer
Confidential Information and other materials created solely by
Buyer or supplied directly to Seller by Buyer and any copies of the
foregoing, including, but not limited to, all inventions, works of
authorship, discoveries, processes, techniques, methods, technical
data, specifications, policies, plans, designs, coding, software,
source code, object code, program materials, programming aids,
tools, reports, data, information, drawings, formulae, algorithms,
ideas, designs, concepts, know-how, documentation and other written
materials, as well as the patents, patent applications, copyrights,
copyright applications and other intellectual property rights
attendant thereto. |
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1.9. |
“ Buyer Transition Services ” means the
sharing of certain information and the provision of certain
services and support by Buyer to Seller for a limited period of
time, all as more fully described in Exhibit 3 , which is
attached hereto and incorporated herein by reference. |
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1.10. |
“ Changeover Date ” means the date on which
Buyer is able to perform supply chain management tasks on its own,
including production asset management, Product repair services,
order fulfillment services, manufacturing and support thereof, and
inventory management services for the Products. With regard to the
various product lines included among the Products (the “
Product Lines ”), upon the completion of the
changeover for each Product Line, Seller shall no longer be
obligated to perform Seller Transition Services related to those
transitioned Product Lines. For purposes of clarity, the Changeover
Date occurs when the mutually agreed verification and validation of
the product build for each Product Line has been
completed. |
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1.11. |
“ Confidentiality Agreement ” has the
meaning set forth in the Asset Purchase Agreement. |
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1.12. |
“ Cost of Service ” means the price for each
Seller Transition Service that Buyer agrees to pay Seller as more
fully described in Exhibits 1 and 2 . |
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1.13. |
“ Deliverable ” means only those items
specifically identified as deliverables in a statement of work
agreed to in writing by Seller and Buyer (the “Statement of
Work”). |
2
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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1.14. |
“ Dollars ” has the meaning set forth in the
Asset Purchase Agreement. |
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1.15. |
“ End of Phase 1 ” means ninety
(90) days from the Closing Date or such earlier date as
mutually agreed upon by the Parties. |
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1.16. |
“ End of Phase 2 ” means the earlier of
(a) the date Seller completes the Seller Transition Services
or (b) one hundred eighty (180) days from the Closing
Date. |
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1.17. |
“ Engineering Services Agreement ” means
that separate Engineering Services Agreement under which Buyer will
obtain from Seller certain engineering development service related
to New Products pursuant to a mutually agreed upon development
plan. The Engineering Services Agreement will be subject to the
mutual agreement and consent of the Parties in accordance with the
terms set forth in Exhibit 7 . |
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1.18. |
“ Equipment ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.19. |
“ Fees ” means (a) the fees associated
with the Transition Services that Buyer agrees to pay Seller as
more fully described in Section 6 and Exhibits 1
and 2 hereto, which shall include expenditures for required
materials and supplies, reasonable travel and temporary living
expenses; and (b) charges for licenses, royalties and third
party services. |
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1.20. |
“ Finished Inventory ” has the meaning set
forth in the Asset Purchase Agreement. |
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1.21. |
“ Fiscal Month ” means a month in accordance
with Seller’s fiscal calendar which is set forth in
Exhibit 4 hereto. |
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1.22. |
“ Intellectual Property Agreement ” has the
meaning set forth in the Asset Purchase Agreement. |
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1.23. |
“ Inventory ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.24. |
“ Monthly Financial Report ” means a monthly
financial report submitted by either Party to the other Party in a
form substantially similar to Exhibit 5 (which is attached
hereto and incorporated herein by reference). |
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1.25. |
“ Net Proceeds ” means the proceeds per
Product after deducting the Phase 1 Product Prices or Phase 2
Product Prices, as appropriate, from the Net Revenue. |
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1.26. |
“ Net Revenue ” means the Seller's Fiscal
Month net revenue for the Products shipped by Seller on behalf of
Buyer calculated by taking into account the sales volume, sales
returns, adjustments, and costs of sale for the distribution and
production of the Products, consistent with Seller’s past
practices. For purposes of clarity, Net Revenue shall include any
revenue for the Products shipped by Seller to distributors prior to
the Closing Date to the extent such distributors have not notified
Seller that such Products have been shipped by such distributors to
their customers as of the Closing Date and does not include revenue
associated with Products shipped by Seller to its end customers
prior to the Closing Date. |
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CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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1.27. |
“ New Products ” has the meaning set forth
in the Asset Purchase Agreement. |
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1.28. |
“ Person ” has the meaning set forth in the
Asset Purchase Agreement. |
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1.29. |
“ Phase 1 ” means the period commencing as
of the Closing Date and expiring at the End of Phase 1, during
which time Seller and Buyer shall perform certain transition
obligations, as more fully described in this Agreement. |
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1.30. |
“ Phase 1 Product Prices ” means the prices
set forth on Exhibit 6 . |
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1.31. |
“ Phase 2 ” means the period commencing as
of the End of Phase I and expiring at the End of Phase 2, during
which time Seller and Buyer shall perform certain transition
obligations, as more fully defined in this Agreement. |
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1.32. |
“ Phase 2 Product Prices ” means the prices
that will be jointly established by the Parties and set forth on
Exhibit 6 . The Parties agree that the principal difference
in pricing between Phase 1 Product Prices and Phase 2 Product
Prices will be based on the treatment or burdening of
Seller’s manufacturing costs and internally manufactured
products and components. |
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1.33. |
“ Products ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.34. |
“ Product Lines ” means the various product
lines included among the Products. |
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1.35. |
“ Seller Materials ” means all Seller
Deliverables, Seller Confidential Information, software and other
materials created or supplied by Seller before or during the
performance of the Services under this Agreement and any copies of
the foregoing, including, but not limited to, all inventions, works
of authorship, discoveries, processes, techniques, methods,
technical data, specifications, policies, plans, designs, coding,
software, source code, object code, program materials, programming
aids, tools, reports, data, information, drawings, formulae,
algorithms, ideas, designs, concepts, know-how, documentation and
other written materials, as well as the patents, patent
applications, copyrights, copyright applications and other
intellectual property rights attendant thereto. |
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1.36. |
“ Seller Transition Services ” means the
sharing of certain information and the provision of certain
services and support by Seller to Buyer for a limited period of
time, all as more fully described in Exhibit 2 , which is
attached hereto and incorporated herein by reference. For the
avoidance of doubt, during Phase 1, Seller Transition Services will
include the services specifically described in Exhibit 2 and
those related services that were performed by Seller in its conduct
of the Business at the Closing Date. |
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1.37. |
“ Subsidiary ” has the meaning set forth in
the Asset Purchase Agreement. |
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CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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1.38. |
“ Taxes ” has the meaning set forth in the
Asset Purchase Agreement. |
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1.39. |
“ Term ” means the effective period of this
Agreement commencing with the Effective Date and ending on the End
of Phase 2 unless earlier cancelled or terminated pursuant to the
terms of this Agreement. This Agreement will be of no force and
effect in the event the Closing of the transactions contemplated by
the Asset Purchase Agreement does not occur. |
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1.40. |
“ Third Party Inventory ” means certain raw
materials, work-in-progress, parts, finished goods, supplies,
returned materials, packaging materials and other inventories owned
by third parties and used or held for use by such third parties
exclusively for the benefit of Seller and related to Seller’s
sale and support of the Products and New Products. |
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1.41. |
“ Trademarks ” has the meaning set forth in
the Asset Purchase Agreement. |
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1.42. |
“ Transition Services ” means the Buyer
Transition Services and Seller Transition Services. |
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1.43. |
“ Unfinished Inventory ” has the meaning set
forth in the Asset Purchase Agreement. |
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1.44. |
“ Warranty Services Agreement ” has the
meaning set forth in the Asset Purchase Agreement. |
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2.1. |
Seller’s Obligations. Seller’s performance of the
Seller Transition Services is subject to (a) the assignment to
Buyer of the Assumed Contracts, and (b) the ongoing
transactions contemplated by the Asset Purchase Agreement,
i.e., the Seller may not be able to perform such services to
the extent that the services have been transitioned to Buyer or
Seller’s performance of such services is dependent on Seller
being a party to an Assumed Contract that has been assigned to
Buyer. Subject to the foregoing, Seller will perform or cause to be
performed the Seller Transition Services set forth in Exhibit
2 to this Agreement for either the term for such services set
forth in Exhibit 1 or for such other period as described in
Section 2.4 hereto, in accordance with Seller’s
standard practices as of the Closing Date and using at least
commercially reasonable efforts. Seller Transition Services may be
provided by Seller or a Seller Affiliate, at Seller’s sole
discretion. In addition, Seller may, at its sole discretion, upon
prior notice to Buyer, cause any Seller Transition Service it is
required to provide hereunder to be provided, in whole or in part,
by any third party contractor engaged by Seller; provided that
Seller shall remain responsible for performance of any Seller
Transition Services it causes to be provided by any such third
party. |
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CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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2.1.1 |
Seller will use commercially reasonable efforts to continue to
manage, utilizing its standard processes and policies until such
time as each item of Equipment that is included in the Transferred
Assets is transferred to the Buyer, the Equipment that is
(1) valued at Fifty Thousand Dollars ($50,000) original
capitalized amount (as set forth on the Transferred Asset list
attached to the Asset Purchase Agreement) or higher and
(2) are transitioned to Buyer under this Agreement pursuant to
the Asset Purchase Agreement. Seller will provide to Buyer at the
End of Phase 2 a report regarding the transfer of such Equipment
that Seller continued to manage pursuant to this
Section 2.1.1 . |
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2.1.2 |
During the Term, Seller will not accept new customers
(distributor or direct customer) and will instead refer direct
customers and distributors to Buyer. In addition, Seller shall have
no obligation under this Agreement to modify its practices with
regard to shipping or invoicing documentation and/or labeling
related to the Products. |
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2.1.3 |
During Phase 2, Seller will have no obligation to supply and
sell Products or New Products to distributors and customers. During
Phase 2, Seller will, using commercially reasonable efforts, supply
and sell (at the Phase 2 Product Prices) the Products solely to
Buyer for the period of time that is agreed upon by the Parties and
set forth in mutually agreed upon schedules; provided, however,
that in no event will such schedule extend beyond the End of Phase
2. |
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2.1.4 |
Upon the Changeover Date for each Product, Seller shall no
longer be obligated to perform any of the Seller Transition
Services related to that transitioned Product. |
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2.1.5 |
Prior to the End of Phase 2, Buyer shall be granted a right of
first refusal to purchase additional equipment in accordance with
the Asset Purchase Agreement. During Phase 2, Seller will prepare
and provide to Buyer a list of additional equipment (the “
Additional Equipment ”) each item of which is valued
at Fifty Thousand Dollars ($50,000) original capitalized amount (as
set forth on the Transferred Asset list attached to the Asset
Purchase Agreement) or higher. At any time within thirty
(30) days after receipt of the list of Additional Equipment,
Buyer may, by giving written notice to Seller, elect to purchase
all or any portion of the Additional Equipment as set forth in the
Acquisition Agreement. |
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2.2. |
Buyer’s
Obligations. Buyer is responsible for the transition of the
manufacture, sales and support of the Products and New Products
from Seller to Buyer. Buyer also shall facilitate the efficient and
timely delivery of all Buyer Transition Services and pay the Fees
to Seller for Seller Transition Services pursuant to the terms and
conditions of this Agreement. Buyer agrees to perform or cause to
be performed the Buyer Transition Services set forth in Exhibit
3 to this Agreement for the Term, or for such other period as
described in Section 2.4 hereto. Buyer
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CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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shall not interfere with
Seller’s control and supervision of the personnel that
Seller, in its sole discretion, chooses to assign to perform the
Transition Services. Buyer shall return to Seller any and all
assets utilized by Transferred Employees that are not expressly
included as part of the Transferred Assets, including information
technology equipment and laptops. In addition, Buyer shall perform
any and all other actions not specifically performed by Seller
under Exhibit 2 which must or should be performed during the
Term for the transition of the sale and support of the Products and
New Products from Seller to Buyer.
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2.3. |
Transfer of Responsibility. During the Term and subject to
Seller’s timely performance of its material obligations
hereunder, Buyer shall use commercially reasonable efforts to
assume the responsibility for the Transition Services as promptly
as practicable, but in no event later than the dates set forth in
this Agreement for the completion of the transition to Buyer of
such services. Buyer shall use commercially reasonable efforts to
assume the responsibility for the Products, including the
manufacturing, sales and support of the Products by the Changeover
Date, but in no event later than the End of Phase 2. Buyer’s
inability to completely perform the manufacturing, sales and
support of the Products or the design and development of the New
Products by the End of Phase 2 shall not obligate Seller to
continue performance under this Agreement after the End of Phase 2.
Buyer shall assume responsibility for the design and development of
the New Products as soon as practicable, but in no event later than
the agreed upon schedule for transition of the design and
development of the New Products as set forth in Exhibits 2
and 3 . |
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2.4. |
Service Duration; Early Termination. The Transition Services
(and the obligations of each Party with respect thereto) shall
commence as of the Effective Date and continue for the duration set
forth for such Transition Service in Exhibits 1 , 2
and 3 , but no later than the End of Phase 2. The Parties
agree that the duration of specific Transition Services may be
shortened depending upon the needs of Buyer and its capability to
provide such services internally or to procure them from other
service providers. Accordingly, specific Transition Services shall
be provided by Seller only until the earliest of: (a) the
duration specified in Exhibit 1 or 2 , (b) the
End of Phase 2; (c) the expiration of Seller’s rights
under agreements with third parties that are necessary for Seller
to provide such Transition Services hereunder; or (d) such
time as specified in a written notice to Seller of Buyer’s
early termination of such Transition Service, which shall be
provided at least thirty (30) days in advance of the desired
date of such termination. If any specific Transition Service is
terminated prior to the stated duration pursuant to clause
(c) or (d) above, the Parties shall promptly take all
necessary actions to phase out such Transition Service, including
cancellation of third party obligations and transfer of
responsibility to Buyer for such services, and Buyer shall promptly
assume the responsibilities for such services. Buyer shall
reimburse Seller for any third party cancellation charges that
Seller incurs by reason of any early termination by Buyer under
subparagraph (d) above; provided that such cancellation
charges will not be deemed to have been incurred as a result of
Buyer’s exercise of its rights under subparagraph
(d) above to the extent that such exercise is a direct result
of Buyer’s obligation to phase out such Transition Service,
including cancellation of third party obligations and assumption
for such services. |
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CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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2.5. |
License of Buyer’s Brand Name and Mark . As of the
Closing Date, Buyer grants to Seller a non-exclusive, royalty-free,
revocable, worldwide license to use Buyer's brand name or Trademark
to mark any Product as required by and in accordance with the terms
and conditions under this Agreement. Buyer also hereby grants to
Seller a non-exclusive, royalty-free, revocable, worldwide license,
under its Copyrights, to reproduce, display, perform, and
distribute any and all instructions or accompanying documentation
to the Buyer-provided trade name or Trademark in order for Seller
to mark the Products in accordance with the terms and conditions of
this Agreement. Buyer and Seller agree to maintain quality control
standards that are at least as high as Seller’s quality
control standards currently in place and utilized by Seller in
connection with the manufacture and sale of the Products that are
sold under Seller’s trade names or Trademarks as of the
Closing Date. In addition, Buyer hereby grants to Seller a
non-exclusive, royalty-free, revocable, worldwide Trademark
license, to use and disclose any instructions or documentation to
the extent necessary to mark the Products and New Products in
accordance with the terms and conditions of this Agreement solely
for such purpose and duration as agreed upon in writing by the
Parties with regard to identified Buyer brand names or Trademarks.
Buyer further grants to Seller the right to sublicense to
Seller’s subcontractors, suppliers or distributors the rights
described herein and granted to Seller for the sole purpose of
marking the Products and New Products with Buyer’s brand name
or marks as described herein. |
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2.6. |
No Acceptance of Any Purchase Orders Beyond the Term. During
Phase 1, Seller may accept purchase orders from Seller's
distributors, direct customers and Buyer. Seller shall not accept
purchase orders from any party other than Buyer during Phase 2. For
any existing orders that have delivery dates after the End of Phase
2, Seller will refer the direct customers or distributors to Buyer
and suggest that they re-book such orders with Buyer (and shall not
in any way impede such customers and distributors from doing so).
If a direct customer or distributor re-books such orders, Buyer
shall be solely responsible for such orders. Notwithstanding the
foregoing, Seller shall not be, in any manner whatsoever,
responsible if the direct customers or distributors fail to re-book
such orders with Buyer. |
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2.7. |
Additional
Services. If Buyer notifies Seller that Buyer desires to obtain
different or additional services or resources from Seller beyond
those set forth in Exhibit 2 , the Parties shall negotiate
mutually agreeable terms and conditions for such Services (the
“ Additional Services ”); provided, however,
that this Section 2.7 shall not require Seller to
provide any Additional Services absent any such agreement and the
provision of Additional Services will remain at the sole discretion
of Seller. If Seller and Buyer mutually agree upon the provision of
any Additional Services, this Agreement and Exhibits, as
applicable, shall be amended
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8
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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pursuant to
Section 16.13 . Seller will be reimbursed by Buyer for
the cost of any such Additional Services as calculated by Seller
based upon Seller’s costs plus a fee of *** , and
expenditures for reasonable travel and temporary living expenses
related to such Additional Services.
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2.8. |
Transition Services Provided Following Term; Term Extension.
Except as otherwise agreed to by the Parties in writing, Seller is
under no obligation, express or implied, to provide any of the
Seller Transition Services after the End of Phase 2 unless, and
solely to the extent that, Seller’s material failure in its
performance of the Seller Transition Services directly and
proximately causes a delay in the Changeover Date that requires the
performance of Seller Transition Services after the End of Phase 2.
In the event Buyer requests Seller to continue providing Transition
Services after the end of the Term, Seller, in its sole discretion,
shall determine whether and to what extent it is willing to provide
any such services. If Seller and Buyer mutually agree to extend the
Transition Services beyond the Term, this Agreement and the
Exhibits hereto as applicable, shall be amended pursuant to
Section 16.13 . The Parties acknowledge that Fees
payable in respect of any Transition Services that Seller, in its
sole discretion, agrees to provide after the end of the Term may be
higher than those established during the Term for such extension.
Buyer acknowledges and agrees that, following the end of the Term,
Seller shall have no further responsibilities or obligations to
Buyer under this Agreement. |
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2.9. |
Third Party Consents and Agreements Required to Perform the
Transition Services. The Parties agree that Seller’s ability
to provide certain Transition Services to Buyer may be conditioned
upon Seller's ability to obtain, on reasonable terms, third party
consents and agreements reasonably necessary for Seller to perform
such Transition Services or to use certain third party software or
hardware licensed to Seller. Seller shall use its commercially
reasonable efforts, and Buyer shall reasonably cooperate with
Seller, to obtain any Seller Contractual Consent; provided ,
however , that commercially reasonable efforts by Seller and
its Subsidiaries shall not include (a) the payment of any
amounts or provision of any other consideration by Seller or
(b) the amendment of any provision of, or waiver of any rights
under any Assumed Contract. Buyer shall promptly reimburse Seller
for all such costs incurred in obtaining such consents and
agreements. Notwithstanding the foregoing, Seller shall have no
obligation to expend any funds to obtain such third party consents
and shall not be in breach of its obligations hereunder in the
event that Seller is unable to obtain such third party consents and
agreements. |
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2.10. |
Government Permits Required to Perform the Transition Services.
The Parties agree that Seller’s ability to provide certain
Transition Services to Buyer may be conditioned upon Seller's
ability to obtain, in a timely manner, Governmental Authority
permits and approvals reasonably necessary for Seller to perform
such Seller Transition Services. Buyer and Seller, and their
relevant Subsidiaries, shall |
9
| *** |
CONFIDENTIAL MATERIALS REDACTED AND FILED SEPARATELY WITH
THE COMMISSION. |
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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cooperate with one another
in taking any reasonable actions by or in respect of, or making any
filings with, or obtaining any consents, approvals, authorizations
from, Governmental Authorities as are necessary for the
consummation of the transactions contemplated by this Agreement.
Buyer shall promptly reimburse Seller for all such costs incurred
in obtaining such Governmental Authority permits and
approvals.
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2.11. |
Staffing Required to Perform Transition Services. The provision
of Seller Transition Services by Seller to Buyer is contingent upon
the availability of qualified Seller staff to perform such
services, including those personnel who may be hired by Buyer
during the Term. As set forth above, it is the intent of the
Parties to migrate Transition Services to Buyer as soon as
practical, but in no event longer than the dates set forth in
Exhibits 1 or 2 . If Seller staff performing a
specific Seller Transition Service are hired by Buyer in accordance
with the terms of the Asset Purchase Agreement or this Agreement so
that in the reasonable judgment of Seller, qualified staff are not
available to perform a specific Seller Transition Service on a
commercially feasible basis, Seller may, upon thirty (30) days
written notice to Buyer, terminate such Seller Transition
Service. |
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2.12. |
Standard of Performance. Seller will use commercially
reasonable efforts to perform the Seller Transition Services in a
professional and workmanlike manner and consistent with
Seller’s standard business practices in operating the
Business, including, without limitation, maintaining such consents
and approvals as have been obtained by Seller during the Term and
may be necessary to perform a Seller Transition Service prior to
transfer of such service to Buyer. |
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2.13. |
Training. With regard to the training services to be performed
by Seller as set forth in Exhibit 2 , Seller, in its sole
discretion, will assign the appropriate personnel to perform such
training. |
| 3. |
Removal of Seller’s Brand Name and
Trademarks . |
Unless otherwise agreed to in
writing by the Parties, by the earlier of the End of Phase 2 or
Changeover, Buyer shall use commercially reasonable efforts to
remove or have removed all Seller branded or Trademarked
information from the Products and New Products (including without
limitation, any packaging or electronic documentation for the
Products and New Products and any datasheets, specifications,
websites or other documentation related to the Products and New
Products). The removal of brand name and Trademarks pursuant to
this Section 3 is not in any way related to, and
nothing herein requires, the removal of brand names and marks which
are physically placed or marked onto the finished Products and New
Products by or for Seller. Seller will not be obligated to remove
Seller’s or Buyer’s brand name or marks on any marked,
finished Products and New Products at any time. In the event that,
through the use of commercially reasonable efforts, Buyer is unable
to meet its removal obligation(s) under this Section 3
by the earlier of (a) the End of Phase 2 or (b) the
Changeover Date, upon Buyer’s reasonable request the Parties
will enter into good faith negotiations regarding an the
appropriate extension of time for Buyer’s obligations(s)
under this Section 3.
10
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
As further set forth on
Exhibit 2 , Seller shall create web-site redirects on each
web page on which the Products or New Products had been referenced,
which redirect shall include a notice (agreed upon by the Parties
in writing) with respect to the availability of such Products and
New Products from Buyer (and such other matters as the Parties so
agree). Except as otherwise agreed to in writing by the Parties,
and Seller’s obligations with respect to website redirects
and notices therefore, Seller shall have no obligation under this
Agreement to place Buyer's Trademarks on the Products or New
Products, including without limitation, any packaging, electronic
documentation, data sheets, specifications, websites, or other
documentation related to the Products or New Products
Seller shall have no
obligation under this Agreement to place Buyer's brand name or
marks on the Products or New Products, including without
limitation, any packaging, electronic documentation, data sheets,
specifications, websites, or other documentation related to the
Products or New Products. In addition, Seller shall have no
obligation under this Agreement to modify any packaging, electronic
documentation, data sheets, specifications, websites, or other
documentation related to the Products and New Products No license
or other right is granted by Seller to Buyer to
any Seller Trademark, brand name or logo under this Agreement,
expressly or by implication, estoppel, statute or otherwise. Any
and all Trademark or other Intellectual Property rights in and to
Seller’s Trademarks, brand names and logos inure to the
benefit of Seller.
Notwithstanding any other
provision, no interest in or right to use the name
“Intel” or any derivation thereof, or any other
Trademarks, service marks or tradenames of Seller (the “
Retained Marks ”) is being transferred. Buyer agrees
(a) not to use, and agrees to cause each of its Affiliates and
Subsidiaries not to use any materials bearing Retained Marks and
(b) not to sell, transfer or ship, and agrees to cause each of
its Affiliates and Subsidiaries not to sell, transfer or ship any
products bearing Retained Marks, except as permitted under this
Section 3 . The foregoing rights set forth in this
Section 3 are subject to Seller's standard Trademark
usage guidelines, a copy of which will be provided to Buyer, and
Seller reserves the right to practice quality control with regard
to its marks. In the event that Buyer sells Products or New
Products bearing Seller’s brand name or Trademarks, Buyer
agrees to make a truthful, fair, and non-misleading reference to
the Retained Marks. Buyer acknowledges Seller’s rights in the
Retained Marks and agrees that any and all use thereof by Buyer
shall inure to the sole benefit of Seller. Buyer agrees not to
(a) challenge Seller’s ownership or use of the Retained
Marks, or (b) apply to register any of the Retained Marks or
any marks confusingly similar thereto. If Buyer acquires any rights
in, or registration or application for the Seller’s Retained
Marks by operation of law or otherwise, it will immediately upon
request by Seller and at no expense to Seller, assign such rights,
registrations, right of priority, and/or applications to Seller,
along with all associated goodwill. Buyer shall (i) not alter
the Retained Marks and (ii) use the retained Marks only in a
positive manner and not in any manner that may disparage Seller,
its products or services, or for promotional goods or products
which, in Seller’s reasonable judgment, may diminish or
otherwise damage Seller’s goodwill in the Retained
Marks.
11
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
| |
4.1 |
Seller shall be responsible for the product warranty services
and returns for Products shipped by Seller to Seller’s end
customers, distributors or other third party customers prior to the
Closing Date (including all costs associated therewith). Except as
provided herein, to the extent that Seller is responsible for
product warranty services and returns for Products during the Term
or thereafter (for Products shipped by Seller prior to the Closing
Date), and those Products have already been transferred to Buyer (
i.e., for which the Changeover Date has occurred), Buyer
shall promptly provide to Seller those Products as requested by
Seller in order to meet the third party’s warranty or return
requests and Buyer shall be reimbursed by Seller at
cost. |
| |
4.2 |
Buyer shall be responsible for product warranty services and
returns for Products and New Products shipped or sold by Buyer and
its distributors to end customers or other third party customers
and for Products and New Products shipped or sold by Seller on
behalf of Buyer to Buyer’s or Seller’s distributors,
end customers or other third party customers on or after the
Closing Date. Until the Changeover Date or such other date as
mutually agreed upon by the Parties, Seller shall perform such
warranty services (and handle such returns) for Buyer as part of
the Seller Transition Services. The Parties acknowledge and agree
that Seller’s compensation for the performance of such
service is included within the Phase 1 Product Prices and will be
included within the Phase 2 Product Prices. |
| |
4.3 |
No later than the Changeover Date, Buyer will begin to perform
certain product warranty services for Products shipped by Seller to
Seller’s end customers, distributors or other third party
customers prior to the Closing Date in accordance with the Warranty
Services Agreement. |
| |
5.1 |
The Parties will cooperate with the other Party, its employees,
agents, and representatives, in the performance of the Transition
Services to facilitate timely performance of the Transition
Services, including, without limitation, working together to
identify any documents, data or information exclusively
related to the Products and New Products, including, but not
limited to, developing bills of material for the software,
firmware, and hardware utilized in the active Products and New
Products. |
| |
5.2 |
Access to Facilities. |
5.2.1 At no cost to Seller,
Buyer shall provide to Seller appropriate access to the facilities
or locations of Buyer, its Subsidiaries, suppliers, contract
manufacturers, and subcontractors at which Seller requests access
in order to facilitate the performance of Seller Transition
Services during Buyer’s regular business hours, or such other
hours as Seller may reasonably require for purposes of performing
the Seller Transition Services. For the avoidance of doubt, the
Parties contemplate that the Seller Transition Services will be
performed principally at Seller facilities and that access to Buyer
facilities may be appropriate for the
12
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
performance of certain Seller
Transition Services. In addition, Buyer shall provide the following
services and other items, as applicable, to Seller at each facility
or location of Buyer, its Subsidiaries, suppliers and
subcontractors at which Seller is performing Seller Transition
Services: (i) reasonable access to and use of ordinary office
equipment; (ii) reasonable access to and use of telephone,
internet and fax equipment and services (including voicemail
services, if applicable); and (ii) such other routine or minor
items, services and resources as the Parties may agree are
reasonably necessary for Seller to perform its obligations under
this Agreement.
5.2.2 At no cost to Buyer,
Seller shall provide to Buyer appropriate access to the facilities
or locations of Seller and its Subsidiaries and, to the extent such
third party agrees, its suppliers, contract manufacturers, and
subcontractors at which Buyer requests access in order to
facilitate the performance of Buyer Transition Services during
Seller’s regular business hours, or such other hours as
Seller may reasonably require for purposes of performing the Buyer
Transition Services. For the avoidance of doubt, the Parties
contemplate that the Buyer Transition Services will be performed
principally at Buyer facilities and that access to Seller
facilities may be appropriate for the performance of certain Buyer
Transition Services. In addition, Seller shall provide the
following services and other items, as applicable, to Buyer at
Seller’s facilities at which Buyer is performing Buyer
Transition Services: (i) reasonable access to and use of
ordinary office equipment; (ii) reasonable access to and use
of telephone, internet and fax equipment and services (including
voicemail services, if applicable); and (ii) such other
routine or minor items, services and resources as the Parties may
agree are reasonably necessary for Seller to perform its
obligations under this Agreement.
5.2.3 In the event employees,
agents and representatives of either Party (the “ Visiting
Party ”) need access to the other Party’s facility
in connection with the Seller’s performance of Seller
Transition Services, the Visiting Party shall ensure that such
access (a) shall not be disruptive to the other Party’s
business and operations and (b) shall be at the sole expense
of the Visiting Party. The Visiting Party shall, and shall cause
its employees to, comply in all material respects with applicable
workplace security, administrative, environmental, safety and other
laws and policies and procedures applicable to the performance of
services at the other Party’s facility.
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5.3 |
Use of Buyer Resources. In the event that Buyer and Seller
agree that Seller may need to provide Seller Transition Services at
Buyer’s facility, the Agreement will be amended by the mutual
agreement of the Parties to include such Transition Services and
the applicable fees for such Seller Transition Services to be
performed at Buyer’s facility. |
| |
5.4 |
Books and
Records; Access to Information. During the Term and within five
(5) Business Days of receipt of a written request from Seller,
Buyer shall, in accordance with its company policies, provide
Seller with access during regular business hours to business
records owned and held by Buyer relating to the
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13
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
| |
Transition Services or
under their control that are reasonably necessary to enable Seller
to perform the Seller Transition Services. Seller shall be entitled
to make copies of, and extracts from, such business records solely
as may be reasonably necessary to perform the Seller Transition
Services, at its own expense. During the Term, Seller, in its sole
discretion, may provide to Buyer information in addition to the
documents, reports and data that Seller is required to provide
under Exhibit 2 upon receipt of a request for such
additional information from Buyer. Each Party may only use such
information obtained from the other Party, and copies thereof,
solely as necessary to perform the applicable Transition Services
and may not disclose such information or provide copies to any
third party without the other Party’s prior written consent.
Without limiting the foregoing, such information shall be subject
to the confidentiality obligations of Seller under
Section 16.8 of this Agreement.
|
| |
5.5 |
Service Coordinator. Each Party will appoint one individual
(the “Service Coordinators”) who will be responsible
for general coordination of all Transition Services. The Service
Coordinators will act as the primary liaison between the two
organizations and will coordinate the Transition Services to be
provided. The Service Coordinators will be generally knowledgeable
in respect of the operations of each organization and shall be
responsible for: (a) the efficient coordination of the
Transition Services and (b) approval of all changes to
Transition Services that the Parties may mutually agree to. Each
Party’s Service Coordinator and related contact information
may be updated upon written notice to the other Party. Each Party
within five (5) days after the Closing Date will provide to
the other Party an organizational chart with the names and contact
information for the individuals responsible for the day-to-day
performance of the Transition Services, as well as the appropriate
escalation path for each functional area included on the
organizational chart. |
| |
5.6 |
Transition of New Products. The Parties acknowledge that during
Phase 1, Buyer may determine that certain of the New Products are
ready for introduction into the commercial marketplace. The
Agreement will be amended in writing in the event that Buyer
decides to introduce any of the New Products into the commercial
marketplace and Seller agrees to treat such New Product as a
Product for purposes of providing services under this
Agreement. |
| 6. |
Seller Remuneration and Buyer Reimbursement
. |
| |
6.1 |
Fees. As part of the remuneration due Seller, Buyer shall remit
to Seller the Fees associated with the Seller Transition Services
as set forth in Exhibit 2 by no later than thirty
(30) days from the date of invoice of Seller subject to the
terms of this Section 6 . Exhibit 1 provides a
summary of the Seller Transition Services and fees. |
| |
6.1.1 |
Seller will
invoice Buyer on a monthly basis in arrears for: (a) the Phase
1 Product Prices and Phase 2 Product Prices, as more expressly
defined on Exhibit 6 hereto, for any Seller Transition
Services performed during the
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14
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
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previous month or quarter,
as expressly defined in Exhibit 2 hereto, together with
(b) expenditures for reasonable, actual travel and temporary
living expenses related to such Seller Transition Services (the
“ Expenditures ”) to the extent authorized or
approved and incurred on a basis consistent with Seller’s
normal reimbursement policies and past practices. There shall be
proration of Fees with respect to the performance of any Transition
Services. Such invoices shall: (a) provide a summary
description of the Seller Transition Services to which the invoice
relates; (b) provide reasonable detail of the components of
the Cost of Services for each such Seller Transition Service;
(c) provide reasonable detail of any Expenditure;
(d) specify the separately reimbursable charges for licenses
fees, royalties or third party services; and (e) specify the
total amount of Fees to be paid by Buyer. Seller shall include, as
separate items on the invoice, all expenditures, including any
reimbursable travel, living or other expenses incurred in
accordance with the terms of this Agreement and reimbursable
charges for license fees, royalties or third party services, as
applicable.
|
| |
6.1.2 |
Seller shall submit to Buyer a Monthly Financial Report on or
before the tenth (10th) Business Day of each Seller Fiscal
Month. By no later than thirty (30) days from the date that
Seller submits to Buyer an invoice associated with a Monthly
Financial Report, Buyer shall remit to the Seller the Net Proceeds
for the Products sold by Seller to its direct customers and
distributors during the Term of this Agreement. Seller shall not be
required to realize, or be held responsible for realizing, any Net
Revenue of a Product until a distributor of Seller (as of the
Closing Date) sells a Product (originally purchased from Seller) to
its customer and the Product is therefore no longer in the
distribution channel. Only after Seller receives a written report
from the distributor showing that the Product (originally purchased
from Seller) has been sold by the distributor is Seller required to
claim any revenue for the Product for the purpose of calculating
the Net Revenue and, ultimately, the Net Proceeds. |
| |
6.2 |
Adjustments. If the nature, extent or duration of the
Transition Services changes as permitted in accordance with the
terms of this Agreement, or if Buyer elects to terminate a specific
Transition Service pursuant to Section 2.4 , then the
Parties will agree upon an equitable adjustment for the Cost of
Services and/or Fees to reflect such change in the manner specified
herein. |
| |
6.3
|
Payment Terms. All amounts
owed under this Agreement are stated, calculated and shall be paid
in Dollars. Except as otherwise specified in this Agreement, Buyer
shall pay Seller for the undisputed amounts due, owing, and duly
invoiced under this Agreement within thirty (30) days
following delivery of such invoice therefor in immediately
available funds to such place as Seller may reasonably direct
therein. Seller may charge and Buyer shall pay upon demand the
lesser of one and one-half percent (1 1 / 2 %) per month or the highest lawful monthly rate on
overdue amounts. If Buyer disputes the amount reflected on any
invoice, it shall
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15
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
| |
pay the undisputed portion
(if any) of such invoice as provided in this
Section 6.3 and in connection with such payment shall
specify in writing the portion that it disputes and the basis for
that dispute.
|
| |
6.4 |
Prior to the Changeover Date, with regard to the finished goods
that are shipped by Seller on Buyer’s behalf to direct
customers and distributors of Seller as of the Closing Date and for
finished goods which were in Seller’s distributors’
inventory at the Closing Date: (a) Seller will manage the
financial services for the calculation of the cost of sales and Net
Revenue related to such finished goods utilizing Seller’s
designated cost; (b) Seller shall provide to Buyer monthly,
following Seller’s Fiscal Month end, information that Seller
prepares utilizing Seller’s standard accrual-based accounting
methodologies regarding the Net Revenue received by Seller in that
Fiscal Month for such finished goods; (c) Seller will invoice
Buyer; and (d) Buyer will remit payment of the invoiced amount
as soon as commercially reasonable, but in no event later than
thirty (30) days from the date of Seller’s invoice to
Buyer. Seller shall have no obligation to remit to Buyer any
revenues associated with finished goods sold by Seller to its end
customers or sold by Seller’s distributors prior to the
Closing Date. |
Seller will use commercially
reasonable efforts to work with Buyer to ensure that the transition
of web and marketing materials which are directly and
exclusively associated with the Products and New Products or the
conduct of the Business is complete by the End of Phase
1. Seller shall use commercially reasonable efforts to refer
to Buyer all inquiries made to Seller after the Closing Date which
relate to sale and distribution of the Products.
| 8. |
Purchase of Products By Seller From
Buyer. |
| |
8.1 |
If, for any reason, Seller is obligated to accept a purchase
order from a direct customer or distributor (as of the Closing
Date) during the Term and the Inventory no longer has any such
Products or New Products (that are unmarked or marked with
Seller’s brand name or marks), Buyer shall use commercially
reasonable efforts to sell un-marked Products and New Products to
Seller in a timely manner and in quantities sufficient to fulfil
that purchase order, provided that acceptance of the purchase order
does not negatively impact the committed delivery date of
Buyer’s existing purchase orders for such Products and New
Products. |
| |
8.2 |
For the purchase of such unmarked Products and New Products,
Buyer shall (a) charge no more than the “ Buyer Total
Product Cost ” of the Product or New Product and
(b) sell to Seller such Products and New Products under its
normal terms and conditions of sale. Seller shall then sell the
Products and New Products in accordance with
Section 8.1 . For the purposes of this
Section 8.2 , “ Buyer Total Product Cost
” shall mean, without limitation, (i) the amounts paid
to Seller for such Product, if any, and (ii) an allocation of
Buyer’s maintenance, storage, distribution costs and other
Buyer costs associated with such Product, in accordance with
Buyer’s standard accounting practices). |
16
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
| 9. |
Intellectual Property Rights. |
| |
9.1 |
Ownership. Except as otherwise expressly set forth herein, each
of the Buyer and Seller shall retain all right, title and interest
in and to their respective Intellectual Property, and no other
license (except as expressly set forth herein) or other right,
express or implied, is granted under this Agreement by either Party
to its Intellectual Property. In this regard, all Copyright and
Trade Secret rights in Seller Materials, shall be owned by Seller
and Seller shall be afforded all rights of ownership attendant
thereto. All Copyright and Trade Secret rights in Buyer Materials,
shall be owned by Buyer and Buyer shall be afforded all rights of
ownership attendant thereto. Neither party shall remove any
copyright, proprietary or other notices appearing on such
materials. Buyer shall own all rights, title and interest in the
Trade Secrets and Copyrights embodied in the Assigned Matters.
Seller shall own all rights, title and interest in all other
Intellectual Property developed, created, or invented by Seller or
its Affiliates under this Agreement. |
| |
9.2 |
Buyer’s License to Seller. Buyer grants to Seller a
non-exclusive, perpetual, worldwide, royalty-free license (with the
right to grant sublicenses) under Buyer’s Copyrights and
Trade Secrets embodied within the Assigned Matters to make, have
made, use (including to provide services), market, distribute
(directly or indirectly), sell (directly or indirectly), offer to
sell, reproduce, import, display, perform, create derivative works
or otherwise dispose of or exploit any product that Seller makes,
has made, uses, imports or sells that, if sold or distributed, is
sold or distributed by Seller, its Subsidiaries or its Affiliates
as its own product. |
| |
9.3 |
Seller’s License to Buyer. The Parties do not anticipate
that the Seller Transition Services provided under this Agreement
will result in any Deliverables or Product modifications (or other
activities likely to result in the creation of material, new
technology or intellectual property). In the event the Parties
agree that Seller will perform services that will result in a
Deliverable or Product modification, the Parties will mutually
agree in writing upon the Statement of Work for such services
before Seller begins performance of such services. Such Statement
of Work may, among other things, specify an allocation of rights in
that is different than the allocation set forth in this
Section 9, but only if such Statement of Work is
executed by a representative of each Party that is at the level of
Vice President or above. Unless otherwise agreed to in writing by
the Parties, the following license provisions will apply with
regard to such Product modification or Deliverable: |
| |
9.3.1 |
Product
Modifications: Subject to the terms and conditions of this
Agreement, in the event and only to the extent that Seller, in its
sole discretion, creates at Buyer’s direction modifications
to the Products during performance of the Seller Transition
Services, Seller shall grant to
|
17
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN FILED WITH
THE COMMISSION.
| |
Buyer a license under
Seller Licensed Copyrights and Seller Licensed Trade Secrets in
accordance with the provisions of Section 2.4 of the
Intellectual Property Agreement solely in connection with the
manufacture, sale, use, and distribution of the Products and only
to the extent such Seller Licensed Copyrights and Seller Licensed
Trade secrets of Seller are essential for the Buyer’s
continued use and marketing of the Products.
|
| |
9.3.2 |
Deliverables License: If and solely to the extent that any
Seller Materials are incorporated into a Deliverable, Seller grants
to Buyer a non-exclusive, non-transferable, worldwide, royalty-free
license (without the right to sublicense), under Seller’s
Copyrights and Trade Secrets, to reproduce, modify, perform and
display Seller’s Materials internally, only for Buyer’s
internal business purposes of completing the Transition Services,
but not to distribute. |
| |
9.4 |
No Other Rights. Except as expressly provided in this
Section 9 , no other rights are granted or licensed to
Buyer or Seller under this Agreement, by implication, estoppel,
statute or otherwise. Specifically, this Agreement does not provide
Buyer with any rights or license whatsoever under any Patent.
Notwithstanding any provision of this Agreement to the
cont |
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