Exhibit 10.2
TRANSITION SERVICES AGREEMENT
This TRANSITION
SERVICES AGREEMENT (this "Agreement") is
entered into as of _______________,
2004 (the "Effective
Date"), by and between
Thomson Broadcast & Media Solutions, Inc., a Delaware corporation (the "Lead
Purchaser"), and ParkerVision, Inc., a Florida corporation (the "Seller").
Capitalized terms used but not defined
herein have the meanings set forth in the
Purchase Agreement (as defined in the
recitals below).
RECITALS
WHEREAS, pursuant to the Asset Purchase Agreement, dated as of
February
25, 2004, between Lead Purchaser,
Thomson Licensing,
S.A. ("Patent
Purchaser,"
and together with Lead Purchaser,
the "Purchasers") and Seller (the "Purchase
Agreement"), Purchasers have agreed to purchase
from Seller, and Seller has
agreed to sell, transfer, assign and
deliver to Purchasers,
the Acquired Assets
(as defined in the Purchase Agreement);
WHEREAS, Purchasers
and Seller
desire that the Acquired Assets be
transferred from the Seller to the
Purchasers
in an expeditious and orderly
manner at the Closing; and
WHEREAS, the Purchase
Agreement provides
that Seller shall enter into
this Agreement with Lead Purchaser for the provision of
certain
transitional
services to Lead Purchaser with respect to
the Business following the Closing;
NOW, THEREFORE, for
good and valuable
consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
Services
1.1
Initial Services.
Commencing
on the date
hereof, Seller shall
provide to Lead Purchaser the services
(each, a "Service," and collectively, the
"Services") specified on the service schedules attached hereto as Exhibit A
(each such schedule, a "Service Schedule") for the period of time
specified in
each such Service Schedule, unless a Service is earlier
terminated or
extended
in accordance with the terms hereof.
With respect to each
Service, the
parties
shall set forth the following information in the applicable
Service Schedule:
(i) the time period during which the Service
will be provided;
(ii) a summary
and description of the Service to be provided; (iii) the Fees (as defined in
Section 2.1), or estimated Fees, if any, for the Service;
and (iv) any other
terms applicable thereto or such other information with respect to the
Service
as the parties may agree or are required hereunder. If any activities,
functions, responsibilities or other
components of work for any Service are not
specifically described in the applicable
Service Schedule but are inherent in or
a necessary part of the Services described
therein, or are
reasonably
required
for proper performance or provision of such
Services, they shall be deemed to be
"Services" for all purposes under this
Agreement.
1.2 Additional/Modified Services. Following Closing, and
in accordance
with Article 3, additional Services (with corresponding Fees, if any) may be
added and existing Services (along with corresponding Fees, if any) may be
modified by execution by the parties hereto of a supplemental schedule of
services substantially in the form attached
as Exhibit B (each, a "Supplemental
Schedule of Services"). Upon such execution by both
parties, such
Supplemental
Schedule of Services shall (i) become a
Service Schedule as set forth in Section
1.1 above and shall be deemed a part of
this Agreement for all purposes and (ii)
if applicable, immediately supercede the prior Service
Schedule governing
the
same Services.
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1.3 Performance.
Except to the extent modified by a performance
standard set forth in the applicable
Service Schedule, Seller shall provide each
Service in substantially the same manner as
such Service was performed by Seller
for the Business prior to Closing,
consistent with past practice and in a manner
enabling, at minimum, the development of the Business as
set forth on Schedule
1.3, but in no event than with less than a
commercially
reasonable standard
of
performance and care in light of the
requirements
of the Business.
During the
term of this Agreement, Seller shall not enter into any
agreement or accept any
obligation that would interfere with
Seller's ability to effectively perform the
Services. Seller shall provide the
Services, including,
without limitation, any
deliverables required hereunder,
free from material
errors or other defects and
shall substantially conform to any specifications for such Services and/or
deliverables.
1.4 Reports. Seller
shall provide to Lead
Purchaser a monthly
report
setting forth the Services performed during the preceding month and
containing
such additional information as may, from time to
time, be reasonably
requested
by Lead Purchaser. To the extent any performance of
any Service requires Seller
to exercise discretion, Seller may request written instructions from Lead
Purchaser with respect to the exercise of
such discretion. Lead
Purchaser shall
promptly provide such instructions in
reasonable detail, and Seller shall not be
deemed to have breached this Agreement if Seller relies upon such written
instructions.
1.5 Service
Interruptions.
Each Service Schedule shall include a
schedule of all planned service
interruptions of Seller that are required in the
routine or regular maintenance of network,
facility and
operational assets used
to provide the subject Services and Seller shall not be
required to provide any
such Services during such scheduled
interruptions. Seller
shall also provide to
Lead Purchaser reasonable advance notice of
any other interference with Seller's
systems or operations (including downtime for network or
facility
maintenance)
which is reasonably likely to interrupt the
performance of or the
availability
of the provision of any Service
("Other Interruptions"). Lead Purchaser shall
not be obligated to pay any Fees with respect to any period that the
Services
are interrupted due to interruption or interference (including scheduled
interruptions or interferences)
with Seller's systems
or operations. Notice
of
Other Interruptions delivered pursuant to this Section 1.5 shall not relieve
Seller of any liability hereunder for
failure to provide Services.
1.6 Employees. Seller
shall use commercially reasonable efforts (i) to
retain employees who are experienced in
performing, and
trained to perform, the
Services, and, if necessary, hire, train and retain other
personnel to perform
the Services and (ii) in each case,
to cause such
employees to perform the
Services during the term of this Agreement.
Subject to foregoing,
Seller shall
deploy its work force in its discretion to provide the Services in the manner
and time frame required by this Agreement
and the Schedules.
Purchasers
shall
cause their employees to cooperate
with Seller's
employees as may
reasonably
required in connection with the provision
of Services hereunder.
ARTICLE 2
Fees and Payment
2.1 Fees. Subject to
the terms and conditions hereof, Lead Purchaser
shall pay each month to Seller the fee, if any, specified for each Service
rendered during such month as set forth on the
applicable
Service Schedule
(collectively, the "Fees"). Seller shall provide the Services at its cost
and
without profit except as otherwise provided
in the Service
Schedules.
Seller's
"costs" shall be equal to and include only
the direct costs of
providing the
Service, such as the cost of materials and
third-party services,
as well as a
reasonably proportionate amount of salary, benefits and bonuses of Seller's
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employees providing the Services and related
overhead, management and similar
costs, in each case, that is attributable
to the time spent performing Services
hereunder.
2.2 Payment. Unless
otherwise set forth on a Service Schedule, on the
last day of each calendar month during the
term hereof, Seller shall invoice any
and all Fees owed by Lead Purchaser for the Services provided for such month.
Unless contesting in good faith the Fees set forth on the invoice, Lead
Purchaser shall pay such Fees within thirty
(30) days of receipt of the invoice
by check drawn on good funds or wire
transfer of immediately available funds. If
any undisputed Fees have not been paid within 60
days of receipt of the invoice
therefore, Seller shall be entitled to suspend
the provision of Services to
which such Fees apply and such suspension of Services shall not
be considered a
default under or breach of this
Agreement.
2.3 Documentation.
Any Seller's invoice shall be accompanied by
reasonable documentation supporting the Fees owed and shall set forth each
Service provided and the Fees payable for
each Service.
Seller shall
provide
such other documentation of fees and records
of Services provided as reasonably
requested by Lead Purchaser.
2.4 Taxes.
In the event that the
provision of the Services or the
relationship created between the parties
hereunder gives rise to any Tax (other
than a tax based on income with
respect to Lead
Purchaser),
such Tax shall be
the responsibility of Lead Purchaser.
ARTICLE 3
Term; Addition and Reduction of Services
3.1 Period. Subject to
the terms of this
Article 3, the
provision of
the Services shall commence on the date hereof and, with respect to each
Service, shall terminate upon the expiration of the period
set forth for such
Service on the applicable Service
Schedule.
3.2 Early Service Termination. Lead Purchaser may terminate any
Service
by giving 14 days' prior written notice to
Seller. Any requested
termination of
a Service pursuant to this Section 3.2
shall become effective at the end of such
14 day notice period (the last day of such
period, the
"Services Termination
Date"). After the Services Termination Date, Seller shall
thereafter no longer
be obligated to provide such Service,
and Lead Purchaser shall thereafter no
longer be obligated to pay for such Service (except with respect to any
Fees
incurred up through and including the
Services Termination Date). The applicable
Service Schedule shall thereafter be deemed amended to
reflect the termination
of the Service.
3.3
Additional/Extended
Services. If Lead Purchaser desires to extend
the term of any Service (or any part thereof) or add any additional service
(collectively, the "Additional Services") arising out of or relating to the
acquisition of the Business, Lead Purchaser may give Seller thirty
(30) days'
prior written notice, which notice shall include
reasonable details relating to
such request. Lead Purchaser and Seller shall
negotiate in good
faith whether
and on what terms Seller shall provide (if
at all) any such Additional Service;
provided, that Seller shall not in any event be required
to upgrade or expand
its infrastructure, facilities or systems to provide
such Additional Service or
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materially compromise its remaining
businesses and
operations;
and provided,
further, that Seller shall not unreasonably withhold its consent to the
extension of any such term or provision of
any such Additional
Service if such
Additional Service was inadvertently or
unintentionally
omitted from a
Service
Schedule as of the date of this
Agreement or is essential to effectuate an
orderly transition of the Business and the Acquired
Assets to Purchasers in
accordance with the Purchase Agreement. The applicable Service Schedule shall
thereafter be amended to include the extended
term, or, as the case may be, a
separate Service Schedule shall be entered into to for any other Additional
Service, in each case in accordance with
Section 1.3.
3.4 Reduced Quantity.
Seller shall reduce
the quantity of any Service
provided hereunder upon 14 days' prior
written notice from Lead Purchaser. Any
requested reduction of a Service pursuant to this Section 3.4 shall become
effective at the end of such 14 day notice
period (the last day
of such period,
the "Services Reduction Date"). As of the Services Reduction Date, the Fees
payable with respect to such Service shall be reduced proportionately in
accordance with the fee schedule set forth on
the applicable Service
Schedule
with respect to such Service. As of the Services Reduction Date,
the applicable
Service Schedule shall thereafter be
deemed amended to reflect the reduction of
such Service.
3.5 Termination of Agreement. This Agreement shall terminate (i) on
the
date on which the provision of all Services
has been completed in accordance
herewith and (ii) by either party upon
written notice to the
other party if the
other party shall materially breach this Agreement and such breach shall
continue and not be remedied for a period of thirty (30) days
after receipt of
written notice by the non-breaching party describing such breach and
the steps
necessary to reasonably remedy such breach.
Termination of this
Agreement shall
not relieve any party of liability for
breaches prior to
termination of for the
obligation to pay for Fees incurred prior
to Termination. The provisions of this
Section 3.5, Section 4.6 (Disputes), Article 5 (Work Product), Article 6
(Confidential Information) and Article 7 (Miscellaneous) shall survive any
termination of this Agreement.
ARTICLE 4
Cooperation AND management
4.1 Project Managers.
Each Service Schedule
shall designate a project
manager for each party (a "Project
Manager") to report
and discuss issues
with
respect to the provision of such
Service. The Project Managers shall meet to
discuss the performance of the Services as often as reasonably necessary to
ensure the orderly provision of the
Services, and in any event at least monthly,
and shall have authority to address and
remedy problems related to the provision
of the Services. Each party shall promptly
designate successor Project Managers
in the event that a designated individual is not available to
perform such role
hereunder.
4.2 Cooperation.
The parties
agree to fully
cooperate in good
faith
with each other in connection with the
provision of the Services and the matters
related to or arising hereunder,
including,
without limitation, to
enable Lead
Purchaser to establish its own infrastructure to perform the Services
independently of Seller.
4.3 Books and Records.
Each of the parties
shall create and
maintain
full and accurate books in connection with
the provision of the Services. For a
period of no less than four (4) years from the date of termination of this
Agreement, the parties will maintain, in
accordance with their standard document
retention procedures, documentation supporting the
information relevant to cost
calculations and related matters and cooperate with each other in making such
information available as needed, including
in the event of a tax audit.
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4.4 Oversight.
For the purpose of allowing Purchaser to exercise
general and reasonable oversight and monitoring of the performance of the
Services, and subject to any Seller third-party confidentiality and data
protection obligations, Seller shall use
commercially reasonable efforts to make
available during regular business hours (or otherwise
upon reasonable prior
notice) to Lead Purchaser or its
representatives
(i) the Project
Managers and
any other key personnel designated by
Seller to provide the Services, (ii) those
books and records maintained by Seller in accordance
with this Agreement and
such related information or materials
reasonably
requested by Lead
Purchaser;
provided, however, that any such requests
do not unreasonably interfere with the
operation of the day-to-day business
affairs of Seller.
4.5 Lead Purchaser's Premises. For any work performed on Lead
Purchaser's premises (included leased or subleased premises), Seller shall
comply with all reasonable security,
confidentiality, safety and health policies
of Lead Purchaser. Seller shall take all commercially
reasonable precautions to
prevent, and shall be responsible for, any injury to any Persons
(including,
without limitation, employees of Lead Purchaser) or damage to property
(including, without limitation, Lead Purchaser's property) arising from or
relating to Seller's performance of the Services or the use by Seller of
any
Lead Purchaser equipment, tools, facility
or other property.
4.6 Disputes.
In the event that any dispute arises under this
Agreement, the parties agree to negotiate in
good faith to resolve such dispute
prior to seeking relief in accordance with the Purchase Agreement. Unless
otherwise agreed in writing, and subject to each party's right to terminate
pursuant to Section 3.5 hereof,
the parties will
continue to provide
Services
and honor all other commitments under this Agreement during the course of any
dispute resolution pursuant to the terms hereof with
respect to all matters not
subject to such dispute.
ARTICLE 5
Intellectual Property
5.1 Work Product. As used herein, "Work Product" shall include,
without
limitation, all Intellectual Property Rights
and any related
work-in-progress,
improvements or modifications to any Intellectual Property Rights that are
created, developed or conceived
(alone or with others)
in connection with
the
Services and that pertain to the Acquired Assets or the Business. All Work
Product shall be considered "work made for hire" (as such term
is defined in 17
U.S.C. ss.101) and shall be the sole property of Lead Purchaser, with Lead
Purchaser having the right to obtain and
hold in its own name all Intellectual
Property Rights in and to such Work
Product. To the extent that the Work Product
may not be considered "work made for hire," Seller
hereby irrevocably
assigns
and agrees to assign to Lead Purchaser,
without additional
consideration,
all
right, title and interest in and to all
Work Product, whether currently existing
or created or developed later, including,
without limitation,
all Intellectual
Property Rights related thereto, whether existing now or in the future,
effective immediately upon the inception,
conception,
creation or
development
thereof. Seller shall (i) disclose promptly
to Lead Purchaser all Work Product,
and (ii) whether during or after the term of this Agreement, execute such
written instruments and do such other acts
as may be necessary in the reasonable
opinion of Lead Purchaser to obtain a
Patent, register a
Copyright or otherwise
evidence or enforce Lead Purchaser's rights in and to such Work
Product (and
Seller hereby irrevocably appoints Lead
Purchaser and any of its officers as its
attorney in fact to undertake such acts in
its name).
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5.2 License.
To the extent,
if any, that Seller retains any right,
title or interest in or to any Work Product, Seller hereby grants to Lead
Purchaser a perpetual, irrevocable, fully
paid-up, transferable,
sublicensable,
exclusive, worldwide right and license (i) to use, reproduce, distribute,
display and perform (whether publicly or
otherwise), prepare derivative works of
and otherwise modify, make, sell, offer to sell,
import and otherwise
use and
exploit (and have others exercise such rights on behalf of
Lead Purchaser)
all
or any portion of such Work Product, in any form or medium (now known
or later
developed); (ii) to modify all or any portion
of such Work Product,
including,
without limitation, the making of additions to or deletions from such Work
Product, regardless of the medium (now or
hereafter known) into which such Work
Product may be modified and regardless of the effect of such
modifications
on
the integrity of such Work
Product; and (iii) to identify Seller, or not to
identify Seller, as one or more authors of or
contributors to such Work Product
or any portion thereof, whether or not such Work Product
or any portion thereof
has been modified. Seller further waives
any "moral" rights or other rights with
respect to attribution of authorship or integrity of such Work Product
which
Seller may have under any applicable law,
whether under
copyright,
trademark,
unfair competition, defamation, right of privacy,
contract, tort or other legal
theory.
5.3 Provisional
License Back. Subject to the terms and conditions
contained in this Agreement, Lead Purchaser hereby grants to Seller a
royalty-free, non-exclusive, non-transferable
license, with no right to
sublicense, under Lead Purchaser's copyrights, trade secrets and patents
comprising the Acquired Assets solely to,
and only to the extent
necessary for,
the provision of Services under and in
accordance with this Agreement.
5.4 Covenants Relating
to Use of
Specifications,
Materials and Other
Information. Except as may be directed by Lead
Purchaser in connection with the
Services, Seller agrees that it will not
develop, make,
use, offer for sale,
sell, reproduce, distribute or create any
derivative works based on any product
specifications, materials or Confidential
Information of Lead Purchaser. Without
limiting the generality of the foregoing,
Seller agrees that it will not use any
product specifications, materials or Confidential
Information of Lead Purchaser
(or any portion thereof), to develop, make, reproduce or create any product
except products for Lead Purchaser hereunder. Seller agrees that it will not
disclose any portion of any product specifications or other Confidential
Information of Lead Purchaser to any persons with the
exception of
authorized
employees and authorized independent contractors of Seller who: (i) require
access thereto for use authorized under
hereunder; (ii) have signed an agreement
with the Seller that contains restrictions on use and disclosure of such
specifications and Confidential Information substantially similar to, and no
less restrictive than, those contained in
this Agreement; and (iii) are not, and
are not affiliated with, any competitor of
Lead Purchaser.
5.5 No Other Licenses.
Except as otherwise
expressly provided herein,
nothing in this Agreement shall be deemed
to grant, directly or
by implication,
estoppel or otherwise, any right or license with respect
to any Technology
or
other Intellectual Property Rights, and each party
retains all right, title and
interest in and to their respective
technologies and other Intellectual Property
Rights.
5.6 Delivery. Upon
termination of this Agreement, or at any time Lead
Purchaser requests, Seller shall deliver immediately to Lead Purchaser all
property belonging to Lead Purchaser, including all Work Product then in
progress and all material in Seller's possession containing Confidential
Information of Lead Purchaser and any
copies thereof, whether prepared by Seller
or others.
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ARTICLE 6
Confidential Information
6.1 Use and Disclosure. Without the prior written consent
of the other
party (and then only in accordance with
this Agreement),
each party agrees
not
to disclose any Confidential Information of such other party to
any third party
or use any such Confidential Information, except in each case as is
expressly
permitted under this Agreement (which use and disclosure shall be
in accordance
the terms of this Agreement, including Section 5.4 above). Each
party shall use
no less than reasonable care in protecting any such
Confidential
Information
received. Subject to Section 7.3 of the
Purchase Agreement,
each party is and
shall remain the sole owner of all right, title and interest in and to its
respective Confidential Information,
and neither party
shall possess any right,
title or interest in or to any lien on Confidential Information of the other
party. "Confidential Information" shall mean all Trade Secrets and other
confidential and/or proprietary
information of a
Person, including
information
derived from reports, investigations, research, work in progress, codes,
marketing and sales programs, financial projections, cost summaries, pricing
formulas, contract analyses, financial information,
projections,
confidential
filings with any state or federal agency,
and all other
confidential
concepts,
methods of doing business, ideas, materials
or information prepared or performed
for, by or on behalf of such Person by its employees, officers, directors,
agents, representatives, or consultants. Information shall not be deemed
Confidential Information hereunder if (a) it is or becomes publicly known
through no wrongful act or omission of
receiving party; (b) was rightfully known
by the recipient before receipt from
disclosing party;
(c) becomes
rightfully
known to the receiving party without confidential or proprietary restriction
from a source other than the disclosing party that does not owe a duty of
confidentiality to the disclosing party with respect to such Confidential
Information; or (d) is independently developed by receiving party
without the
use of or reference to the Confidential Information of the disclosing party;
provided that, and for avoidance of doubt,
exclusions (b) and (d)
above shall
not apply with respect to Confidential
Information assigned
to Purchasers under
the Purchase Agreement. If the receiving party is legally
compelled to disclose
any Confidential Information, prior to any such compelled disclosure, the
receiving party shall give the disclosing
party reasonable advance notice of
such disclosure and shall cooperate with the disclosing party in protecting
against any such disclosure and, upon
request of the disclosing party, obtaining
a protective order narrowing the scope of
such disclosure.
6.2 Return; Injunctive
Relief. Upon the earliest to occur of (i)
the
termination of this Agreement, (ii) such time as any Confidential Information
ceases to be required by the party
receiving such
Confidential
Information to
perform or receive the Services or (iii) a reasonable
request of a party,
the
applicable Confidential Information of a
party (and any copies thereof) shall be
returned to that party and any such
Confidential Information of a party (and any
copies thereof) stored in computer or other
electronic archival systems shall be
deleted or erased, in each case within fifteen (15) days following such
termination or request. Upon the request of a party, the other party shall
certify in writing that all such
Confidential
Information has been
returned or
destroyed.
6.3 Injunctive Relief. If a breach of the confidentiality obligations
herewith would cause irreparable harm to the non-breaching p
