Exhibit 10.7
SOFTWARE LICENSE AND CONTRIBUTION AGREEMENT
This SOFTWARE AGREEMENT ("Software Agreement") dated as of September 30,
2005 is made by and among VISTEON CORPORATION, a Delaware corporation
("Visteon"), VISTEON GLOBAL TECHNOLOGIES, INC., a Michigan Corporation ("VGTI"),
and AUTOMOTIVE COMPONENTS HOLDINGS, INC., a Delaware corporation (the
"Company"), and shall be effective as of the closing of the Contribution
Agreement (as defined below) (such time, the "Effective Time"). Visteon and the
Company are each individually referred to herein as a "Party," and collectively,
as the "Parties."
WITNESSETH:
WHEREAS, Visteon and the Company have entered into a Contribution Agreement
dated as of September 12, 2005 (the "Contribution Agreement") pursuant to which,
among other things, Visteon has transferred (or caused to be transferred) to
Automotive Components Holdings, LLC, a Delaware limited liability company and
wholly owned subsidiary of the Company ("ACH LLC"), certain intellectual
property and software assets related to the Business (as defined in the
Contribution Agreement);
WHEREAS, Visteon, VGTI, the Company and ACH LLC have entered into,
concurrently with the execution and delivery of this Agreement, an Intellectual
Property Contribution Agreement (the "IP Agreement") setting forth intellectual
property assets to be contributed to ACH LLC and associated rights and
limitations thereof;
WHEREAS, Visteon and ACH LLC have entered into, concurrently with the
execution and delivery of this Agreement, a Master Services Agreement (the
"Master Services Agreement"), whereby certain Services (as defined in the Master
Services Agreement) will be provided by Visteon to ACH LLC, its Affiliates, Ford
Motor Company and certain ACH Buyers (as defined herein); and
WHEREAS, it is a condition of the Contribution Agreement that Visteon, VGTI
and the Company enter into this Software Agreement, which sets forth the terms
and conditions under which certain software will be contributed or licensed by
Visteon and VGTI to the Company, its Affiliates and certain ACH Buyers as of the
Effective Time.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, and for other good and valuable consideration given
by each party hereto to the other, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, for themselves, their successors and
permitted assigns, intending to be legally bound, agree as follows:
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ARTICLE 1.
DEFINITIONS
Section 1.01 Definitions.
Capitalized terms set forth in this Agreement (including any plurals) shall
have the meanings set forth in this in Article 1 when such terms are used in
this Agreement. Capitalized terms used herein or not otherwise defined shall
have the meanings ascribed to them in the Contribution Agreement.
"Confidential Information" has the meaning set forth in Section 5.01.
"Consent Expenses" means any costs and expenses incurred by Visteon, other
than Transfer Fees, associated with obtaining any necessary consents,
permissions and waivers required for Visteon to make the contribution and grant
of licenses granted to any of the Company, ACH LLC and Ford under and during the
term of this Software Agreement.
"Contributed Software" means Contributed Visteon Owned Software and
Contributed Third Party Software.
"Contributed Software Infringement Claims" has the meaning set forth in
Section 2.03.
"Contributed Third Party Software" has the meaning set forth in Section
2.02.
"Contributed Visteon Owned Software" has the meaning set forth in Section
2.01.
"Derivative Work" means a work of authorship based on one or more
preexisting works, including, without limitation, a translation, condensation,
transformation, expansion or adaptation, which, if prepared without
authorization of the owner of the copyright of such preexisting work, would
constitute a copyright infringement. The term "Derivative Work" does not include
the preexisting work upon which the Derivative Work is based.
"Licensed Services Software" has the meaning set forth in Section 3.03.
"Licensed Software" means Licensed Visteon Owned Software, Licensed Visteon
Third Party Software and Licensed Services Software.
"Licensed Visteon Owned Software" has the meaning set forth in Section
3.01.
"Licensed Visteon Third Party Software" has the meaning set forth in
Section 3.02.
"Manuals and Documentation" means all design specifications, operating
manuals, user manuals, operating instructions and other information, in written
or electronic form, for operation of any Software.
"Services" shall have the meaning ascribed thereto in the Master Services
Agreement.
"Software" means computer programs, whether represented in object code,
source code, or any other format, as well as any customization of such programs
and any modifications,
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enhancements, updates, upgrades, Derivative Works or subsequent releases
thereto, but excluding any such computer programs, whether represented in object
code, source code, or any other format, as well as any customization of such
programs and any modifications, enhancements, updates, upgrades or subsequent
releases thereto included in Engineering Design Tools or Non-Patented Product
Design IP and Manufacturing IP as set forth in the IP Agreement.
"Third Party Software" has the meaning set forth in Section 7.02.
"Transfer Fees" means any fees paid to a third-party software licensor that
are necessary for Visteon to make the contributions made and grant the licenses
to the Company granted under this Software Agreement.
"Visteon Licensed Software" shall have the meaning ascribed thereto in the
Master Services Agreement.
"Visteon Owned Software" shall have the meaning ascribed thereto in the
Master Services Agreement.
"ACH Buyer" shall have the meaning ascribed thereto in the Master Services
Agreement.
ARTICLE 2.
CONTRIBUTION OF SOFTWARE USED SOLELY FOR THE BUSINESS
Section 2.01 Contribution of Visteon Owned Software Used Solely for the
Business.
Except as otherwise provided in Section 2.02 of the Contribution Agreement,
upon the terms and subject to the conditions of this Agreement (including
Section 7.02 below), Visteon and VGTI agree to convey, transfer, assign and
deliver, or cause to be conveyed, transferred, assigned and delivered, to ACH
LLC (a direct, wholly-owned Subsidiary of the Company), or one or more other
Subsidiaries of the Company as the Company may designate prior to the Closing,
at (and not before) the Closing as a capital contribution, free and clear of all
Liens, other than Permitted Liens, all of Visteon's and VGTI's right, title and
interest in, and to the Software owned (and not licensed) by Visteon, together
with all existing maintenance and support obligations for such Software, that is
used solely (i) for the operation of, or (ii) to support, the Business
(collectively the "Contributed Visteon Owned Software") as the same shall exist
on the Closing Date. Contributed Visteon Owned Software shall not include
Contributed Third Party Software, Licensed Visteon Third Party Software and
Licensed Visteon Owned Software. Subject to Section 7.03 herein, all Contributed
Visteon Owned Software is set forth in Schedule 1 hereof.
Section 2.02 Contribution of Certain Visteon Licensed Software Used Solely for
the Business.
Except as otherwise provided in Section 2.02 of the Contribution Agreement,
upon the terms and subject to the conditions of this Agreement (including
Section 7.02 below), Visteon and VGTI agree to convey, transfer, assign and
deliver, or cause to be conveyed, transferred, assigned and delivered, to ACH
LLC (a direct, wholly-owned Subsidiary of the Company), or one or more other
Subsidiaries of the Company as the Company may designate prior to the
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Closing, at (and not before) the Closing as a capital contribution, free and
clear of all Liens, other than Permitted Liens, all of Visteon's and its VGTI's
right, title and interest in, to the Software licensed (as opposed to owned) by
Visteon, together with all existing prepaid maintenance and support for such
Software, (a) that is used solely (i) for the operation of, or (ii) to support
of the Business, or (b) that is held under user, site or other forms of
divisible licenses or ownership, as opposed to non-divisible or concurrent
licenses held by Visteon, and the divisible portion thereof is used solely (i)
for the operation of, or (ii) to support the Business (collectively "Contributed
Third Party Software"), as the same shall exist on the Closing Date. Contributed
Third Party Software shall not include Contributed Visteon Owned Software,
Licensed Visteon Third Party Software and Licensed Visteon Owned Software.
Subject to Section 7.03 herein, all Contributed Third Party Software is set
forth in Schedule 2 hereof.
Section 2.03 Infringement Claims and Actions.
With respect to the Contributed Visteon Owned Software and Contributed
Third Party Software only, and except as otherwise provided in Section 2.02 of
the Contribution Agreement, upon the terms and subject to the conditions of this
Agreement (including Section 7.02 below), Visteon and VGTI agree to convey,
transfer, assign and deliver, or cause to be conveyed, transferred, assigned and
delivered, to ACH LLC (a direct, wholly-owned Subsidiary of the Company), or one
or more other Subsidiaries of the Company as the Company may designate prior to
the Closing, at (and not before) the Closing as a capital contribution, free and
clear of all Liens, other than Permitted Liens, all of Visteon's and VGTI's
right, title and interest in (i) all intellectual property, and (ii) all causes
of action and rights of recovery for past infringement of the intellectual
property, to the extent such intellectual property, causes of action and right
of recovery are owned by Visteon and VGTI and are associated solely with the
Contributed Visteon Owned Software and Contributed Third Party Software
(collectively "Contributed Software Infringement Claims") as the same shall
exist on the Closing Date. For the avoidance of doubt, Contributed Software
Infringement Claims shall not include any causes of action or rights of recovery
of Visteon and VGTI with respect to Licensed Visteon Third Party Software and
Licensed Visteon Software.
Section 2.04 Manuals and Documentation.
To the extent Visteon and VGTI possess Manuals and Documentation related to
the Contributed Visteon Software and the Contributed Third Party Software,
Visteon and VGTI shall provide such Manuals and Documentation to the Company.
Section 2.05 Transfer or Assignment of Contributed Software and Infringement
Claims.
As soon as practicable after execution of this Software Agreement, and
subject to the terms and conditions of this Agreement, Visteon, VGTI and the
Company will (i) review and prepare proposed modifications to those contracts
that are affected by the transfers provided in this Article 2. The Parties will
then seek consent from any third party licensors affected by such proposed
modifications, and, (ii) in accordance with any requirements of such third party
licensors, shall take such actions as are necessary to establish and reflect the
Company ownership, including transfer to the Company of the right to receive
royalty payments where required.
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Section 2.06 Consideration.
The contributions made pursuant to this Article 2 and the grant of the
licenses set forth in Article 3 below to the Company are made by Visteon and
VGTI pursuant to the obligations under the Contribution Agreement and in
consideration set forth therein.
ARTICLE 3.
SOFTWARE LICENSES
Section 3.01 Licensed Visteon Owned Software.
Subject to Article 5 and Section 7.02 below, Visteon and VGTI hereby grant
to the Company and the Company hereby accepts, a nonexclusive, paid-up,
perpetual, royalty-free, worldwide, license or sublicense, severable and
separately assignable only as permitted under the Section 3.04 herein, including
the rights and license to use, perform, display, copy, obtain services and to
prepare Derivative Works, to all Visteon Owned Software (other than Contributed
Visteon Owned Software) that is used by Visteon (i) for the operation of, or
(ii) to support the Business, as the same shall exist on the Closing Date
("Licensed Visteon Owned Software"). Such license shall include the right of the
Company to grant a sublicense to the Company's Subsidiaries and to Ford Motor
Company for so long as the Company remains a subsidiary of Visteon or is
controlled by Ford or an Affiliate thereof ("Ford"). Licensed Visteon Owned
Software shall not include Contributed Visteon Owned Software, Contributed Third
Party Software, and Licensed Visteon Third Party Software. Subject to Section
7.03, all Licensed Visteon Owned Software is set forth in Schedule 3 hereof.
Section 3.02 Licensed Visteon Third Party Software.
Subject to Section 3.04, Section 3.07(b), Article 5 and Section 7.02 below,
Visteon and VGTI hereby grant to the Company (which such license shall include
the right to grant sublicenses to the Company's Subsidiaries and to Ford for so
long as the Company remains a subsidiary of Visteon or is controlled by Ford),
and the Company hereby accepts, a non-exclusive, paid-up, royalty free license
or sub-license, as applicable, severable and separately assignable, to access,
use, perform, display prepare Derivative Works and/or reproduce, for the
Company's internal business purposes the Visteon Licensed Software, together
with all existing prepaid maintenance and support for such Visteon Licensed
Software, (a) that is used by Visteon (i) for the operation of, or (ii) to
support of the Business, and (b) that is held by Visteon under non-divisible or
concurrent licenses and used by Visteon (i) for the operation of, or (ii) to
support the Business, as the same shall exist on the Closing Date, other than
included in Contributed Visteon Owned Software, Contributed Third Party
Software, and Licensed Visteon Owned Software ("Licensed Visteon Third Party
Software"). Subject to Section 7.03, all Licensed Visteon Third Party Software
is set forth in Schedule 4 hereof. All prepaid fees for software maintenance and
licensing agreements relating to Licensed Visteon Third Party Software existing
as of the date hereof are set forth in reasonable detail on Schedule 5 hereof.
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Section 3.03 Licensed Services Software.
Subject to Section 3.04, Section 3.07(b), Article 5 and Section 7.02 below,
and solely to the extent necessary to permit the Company to receive the Services
under the Master Services Agreement, Visteon hereby grants to the Company (which
such license shall include the right to grant sublicenses to the Company's
Subsidiaries and to Ford for so long as the Company remains a subsidiary of
Visteon or is controlled by Ford), and the Company hereby accepts, a
non-exclusive, paid-up, royalty free license or sub-license, as applicable,
severable and separately assignable only as permitted under Section 3.04 herein,
to access, use and/or reproduce, for the Company's internal business purposes,
the Visteon Licensed Software and Visteon Owned Software that is used by Visteon
to provide the Services, other than included in Contributed Visteon Owned
Software, Contributed Third Party Software, Licensed Visteon Owned Software and
Licensed Visteon Third Party Software ("Licensed Services Software"). The term
of the license granted in this Section 3.03 is set forth in Section 3.10.
Section 3.04 Sublicenses to ACH Buyers and Ford.
(a) Subject to Section 3.07(b) and Article 5 below, the Company may grant
to a ACH Buyer who satisfies Section 3.3 of the Master Services Agreement a
nonexclusive, nontransferable license to the Licensed Software with rights
equivalent to those set forth in Section 3.01, Section 3.02 and Section 3.03
hereof, as applicable, provided, however, that any such ACH Buyer (i) shall not
have the right to further sublicense any such Licensed Software, and (ii) may
use such Licensed Software solely for the internal business purposes of such ACH
Buyer.
(b) During the term of the licenses granted under this Article 3, and only
in connection with the transfer of any Plant(s) by the Company to Ford, the
Company may sublicense or assign all or a portion of the Licensed Software to
Ford. In the event of a sublicense or an assignment, the terms of such
sublicense shall be granted to the same extent and under the same terms as
provided to the Company hereunder, except that the restrictions set forth in
Section 3.04(a)(i) and (ii) above shall apply.
(c) As part of any sublicense or assignment permitted under this Section
3.04, each such ACH Buyer or Ford, as appropriate, must agree to assume, as part
of such sublicense or assignment, the Company's obligations arising after the
effective date of such sublicense or assignment with respect to the Software
that is the subject of such sublicense or assignment as set forth herein. In
addition, Visteon shall either be expressly designated as a third party
beneficiary of, or shall be a party to, any such assignment or sublicense
agreement.
Section 3.05 Manuals and Documentation.
To the extent Visteon and VGTI possess Manuals and Documentation related to
the Contributed Software, Visteon and VGTI shall provide such Manuals and
Documentation to the Company.
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Section 3.06 Ownership and Transfer or Assignment of Licensed Software.
Subject to the agreement herein to transfer Contributed Software, the
Company agrees that it will not make any claim of ownership to any right, title
or interest to the Licensed Software or copies thereof contrary to Visteon's or
VGTI's claim of ownership or to Visteon's or VGTI's rights to grant licenses for
the Licensed Software.
Section 3.07 Copy and Use Restrictions.
(a) The Company may copy the Licensed Software as reasonably necessary for
backup, archival or disaster recovery purposes. The Company and ACH Buyer(s) may
reproduce printed Manuals and Documentation in their entirety for internal use
only.
(b) The Company agrees that it will not use the Licensed Software except as
authorized herein, and, except as expressly permitted under Section 3.02,
Section 3.03 and Section 3.04 with respect to Ford or to ACH Buyer(s), that it
will not make Licensed Software available for use by or for the direct benefit
of any third person, corporation, customer or other entity, except to the extent
necessary to use such Licensed Software for the Company's benefit. The Company
acknowledges that the licenses granted to Licensed Visteon Third Party Software,
Licensed Services Software and the Contributed Third Party Software are subject
to existing restrictions and limitations on use as set forth in underlying
agreements with third party licensors. Accordingly, the Company agrees (and
shall cause all ACH Buyers and Ford to agree in connection with the transfer or
sublicense of any such software) to use the software in accordance with the
terms of such agreements to the extent the applicable terms as expressly set
forth in such agreement are made available to the Company by Visteon.
(c) The Company, at its sole cost and expense, may obtain the services of a
third party vendor to maintain the Licensed Visteon Owned Software and Licensed
Visteon Third Party Software, provided (i) Visteon is notified of the identity
of the third party vendor, and (ii) the third party vendor signs an agreement
that is mutually agreeable to the Parties (including either expressly
designating Visteon as a third party beneficiary of, or including Visteon as a
party to, any such agreement) and sends a copy thereof to Visteon.
Section 3.08 Delivery of Software.
Subject to Section 7.02 of this Software Agreement, Contributed Software
will be delivered to the Company at Closing.
Section 3.09 License to Visteon.
Subject to Article 5 below, the Company hereby grants to Visteon, solely to
provide the Services to the Company, a worldwide, royalty-free, non-exclusive,
paid-in-full, and non-transferable (except in the event of the assignment of all
of Visteon's rights, duties and obligations under the Master Services Agreement
to a wholly-owned subsidiary of Visteon as permitted thereunder) right and
license to have access to, operate, use, modify, alter and create Derivative
Works of the Software, Documentation and Manuals owned by the Company during the
Term of the Master Services Agreement, all of which shall remain the sole and
exclusive property of the Company or the applicable third party licensor, as
appropriate.
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Section 3.10 Term and Termination of License to Licensed Services Software.
The term and termination of the license granted in Section 3.03 above to
the Licensed Services Software (including any subsequent assignment or
sublicense of such Licensed Services Software to a ACH Buyer or Ford) shall be
co-terminous with the term and termination of the Master Services Agreement or
the term of a Participation Agreement, whichever term is longer. Upon
termination of such licenses, all rights granted to the applicable licensee or
sublicense hereunder shall terminate, and such licensee or sub-licensee shall
(a) cease using the Licensed Services Software that is the subject of the
license or sublicense (whether or not modified or merged into other materials),
(b) certify in writing to Visteon that all copies (in any form or media) of such
Licensed Services Software have been destroyed or returned to Visteon. The
provisions of Articles 2, 3, 4, 5, 6 and 7 shall survive any termination hereof.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties.
The Parties agree that all representations and warranties relating to
matters contemplated herein are set forth in the Contribution Agreement.
ARTICLE 5.
CONFIDENTIALITY
Section 5.01 Confidentiality.
(a) Each of Visteon and the Company agrees to hold in confidence, and to
use only as permitted by this Agreement, all information that is disclosed under
this Agreement and designated by the disclosing Party in writing or by
appropriate stamp or legend as "CONFIDENTIAL" or some similar marking of like
importance, or where the nature of the information is such that a reasonable
person who deals with such information would believe that a party intends or is
obligated to maintain it as confidential (hereinafter "Confidential
Information"). For the avoidance of doubt, the Parties agree that Confidential
Information shall include information of third party licensors that is
designated as confidential under the terms of an agreement between Visteon and
such third party licensor provided that such information is designated by the
disclosing Party in writing or by appropriate stamp or legend as "CONFIDENTIAL"
or some similar marking of like importance. The receiving Party agrees to use
the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized use and disclosure of the Confidential Information to
third parties (including Ford) as it uses to protect its own confidential
information of like importance.
(b) To the extent that any third-party licensor of any Licensed Visteon
Third Party Software or Licensed Services Software to be disclosed or made
available to the Company in connection with the licenses granted herein or the
performance of the Services requires the Company to execute a non-disclosure
agreement as a condition of its consent to use of the same for the benefit of
the Company or to grant the Company access to such Software, the Company
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agrees to use commercially reasonable efforts to negotiate and execute an
acceptable non-disclosure agreement with such third-party.
(c) Except as specified below, the obligations of this Article 5 shall
terminate on the expiration or termination of the Master Services Agreement,
after which the party having received the Confidential Information shall limit
further disclosure in the same manner as that party protects its own
confidential information of like importance.
(d) Notwithstanding any other provision of this Agreement, the obligations
of restricted disclosure and use specified herein will not apply to Confidential
Information which: (i) is available as of the Effective Time or becomes
available to the public without breach of this Agreement; (ii) is authorized for
release in writing by the disclosing Party prior to the applicable disclosure;
(iii) is lawfully obtained from a third party or parties without a duty of
confidentiality; (iv) is disclosed to a third party by the disclosing Party
without a similar duty of confidentiality; or (v) is at any time developed by
the receiving Party independently of any related disclosure(s) from the
disclosing Party.
(e) With regard to any Confidential Information disclosed pursuant to this
Agreement, the receiving Party shall not be liable for unauthorized disclosure
of such Confidential Information pursuant to judicial action or governmental
regulations or requirements, provided that the receiving Party notifies the
disclosing Party of the need for such disclosure within a reasonable period of
time before such disclosure is required.
Section 5.02 Certain Disclosures to Third Parties.
(a) Notwithstanding any other provisions of this Article 5, and provided it
is not otherwise restricted under this Agreement, disclosure of Confidential
Information by a licensed party under this Agreement to a third party will be
permitted only to the extent necessary to carry out the license grants herein,
and only after such third party agrees to adhere to confidentiality provisions
at least as restrictive as those adhered to by the licensee under this Agreement
and to use such Confidential Information only to provide products to, or
purchase products from, the licensee herein.
(b) With respect to Confidential Information that includes software of the
type embedded in a product or associated tools, disclosure by a licensee under
this Agreement to a third party will be permitted only to the extent necessary
to carry out the license grants herein, and further provided that such third
party agrees to: protect such software for a period of at least five (5) years
from date of disclosure; use such Confidential Information only to provide
products to, or design, test and manufacture products for, or purchase products
from, the licensed party herein; and limit access to its employees having a need
to use such Confidential Information to provide products to, or design, test and
manufacture products for, or purchase products from, the licensed party herein.
(c) In no event shall a licensee disclose Confidential Information or other
intellectual property owned or licensed by a third party to the extent such
disclosure would violate any applicable license agreement or applicable trade
secret or copyright or other Laws.
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ARTICLE 6.
NOTICE
Section 6.01 Notice.
All notices, requests and other communications to any party hereunder shall
be in writing (including facsimile transmission and electronic mail ("e-mail")
transmission, so long as a receipt of such e-mail is requested and received) and
shall be given,
if to the Company, to:
Ford Motor Company
Office of the Secretary
One American Road
00xx Xxxxx Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
with a copy to:
Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
Attention: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
E-mail: xxxxx@xxxx.xxx
if to Visteon or VGTI, to:
Visteon Corporation
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
or such other address or, facsimile number or e-mail address as such party may
hereafter specify for the purpose by notice to the other parties hereto. All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt. As
used in this Section
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6.01, "Business Day" means any day other than a Saturday, a Sunday or a jointly
observed Ford/Visteon holiday.
ARTICLE 7.
MISCELLANEOUS
Section 7.01 Obligation to Disclose Technology.
Visteon and VGTI each agree to put forth a good faith effort to deliver
copies of all documentation and information, in addition to Manuals and
Documentation, requested by the Company as part of the Contributed Software as
necessary to give full enabling effect to the licenses granted hereunder,
provided that the Company agrees to pay for the reasonable administrative costs
for copying and delivering the requested copies of documents and information and
to comply with the confidentiality and non-disclosure requirements of third
parties. The foregoing obligation to copy and deliver the requested documents
and information shall terminate April 1, 2006.
Section 7.02 Transfer or Assignment of Software Licenses and Rights.
Notwithstanding anything in any Contribution Agreement Transaction Document
to the contrary, this Software Agreement and this Article 7 shall apply to all
transfers, assignments, licenses and sublicenses of Contributed Software and
Licensed Software between the Parties and consents required therefor. This
Agreement shall not constitute an agreement to convey, transfer, assign,
license, or sublicense any Contributed Third Party Software, Licensed Visteon
Third Party Software or Licensed Services Software (collectively "Third Party
Software") or any claim or right or any benefit arising thereunder or resulting
therefrom if such conveyance, transfer or assignment, without the consent of a
third party thereto, would constitute a breach or other contravention of any
license or other agreement between Visteon, VGTI any third party with respect to
such Third Party Software (unless such consent is obtained prior to the
Closing). Visteon and VGTI will use their best efforts, and the Company shall
cooperate as necessary, to obtain the consent of the other parties with respect
to any such Third Party Software or any claim or right or any benefit arising
thereunder for the assignment thereof to the Company (or any Subsidiary of the
Company); provided, that, except as set forth in Section 7.04 hereof, such
efforts shall not require Visteon or the Company to incur any material expenses
or Liabilities or provide any material financial accommodation or to provide a
guarantee to obtain any such consent (provided that Visteon agrees to accept a
consent notwithstanding that it does not include a release). Subject to Section
7.04, if such consent is not obtained, or if an attempted conveyance, transfer,
assignment, license or sublicense thereof would be ineffective, would adversely
affect the rights of Visteon thereunder so that the Company would not in fact
receive all such rights, or would require a material payment by the Company or
Visteon, until such consent is obtained (whereupon such Third Party Software
shall be promptly transferred by Visteon to the Company or applicable Subsidiary
of the Company pursuant to the applicable provisions of this Agreement), Visteon
and the Company will cooperate in a mutually agreeable arrangement under which
the Company would obtain benefits and assume obligations thereunder, including
making any required payments thereunder, in accordance with this Agreement,
including sub-contracting, sub-licensing, or sub-leasing to the Company, or
under which Visteon would enforce or operate for the benefit of the Company the
applicable Third
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Party Software and any claim, right or benefit arising thereunder. Visteon will
promptly pay to the Company when received all monies received by Visteon from
any third party under any agreement between Visteon and a third party to the
extent such monies are received with respect to any Contributed Visteon Owned
Software or any claim, right or benefit arising thereunder, except to the extent
the same represents an Excluded Asset.
Section 7.03 Inadvertent Omissions.
(a) Visteon and VGTI have used good faith efforts to identify all Software
to be transferred and licensed to the Company as required by the Contribution
Agreement. To the extent any Software or other rights are discovered or
identified at any time before or after the Closing Date which, pursuant to
Article 2 or Article 3 hereof should have been transferred or licensed to
Company but are still in Visteon's or any of Visteon's Affiliates' possession or
not listed in the Schedules herein, Visteon shall immediately transfer and
promptly deliver them (or cause them to be delivered) to the Company or include
them in the appropriate Schedules hereto.
(b) To Visteon's knowledge, the Schedules and attachments hereto include
all Software existing as of June 15, 2005 to be contributed or licensed to the
Company. The Parties agree that within ninety (90) days after Closing, they will
cooperate and identify (i) any modifications or corrections necessary to the
Schedules hereto, including, without limitation, changing the Schedule on which
Software is listed, and (ii) all other Software to be contributed or licensed to
the Company pursuant to this Agreement that is identified between June 15, 2005
and Closing. The Parties agree that such Software will be added to the
appropriate Schedule herein. In the event that new circumstances exist at
Closing that affect the contribution or license of Software pursuant to this
Agreement, the Parties will meet and mutually agree to the appropriate treatment
of such Software.
Section 7.04 Costs, Expenses and Fees.
Visteon shall be responsible, at its sole cost and expense, for all Consent
Expenses and the Company and Visteon will share equally in all Transfer Fees.
Visteon and the Company shall cooperate to minimize any such Transfer Fees.
Section 7.05 Consents.
Visteon shall use commercially reasonable efforts, and the Company shall
cooperate as necessary, to ensure that any consent, permission or waiver
required to be provided to the Company shall also provide, to the extent
applicable, for the future transfer of such consent, permission or waiver to a
ACH Buyer and Ford.
Section 7.06 Assignment.
Except as set forth in Section 3.04 above with respect to the assignment or
sublicensing of the licenses granted to the Company in Section 3.01, Section
3.02 and Section 3.03 above, this Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted
assigns; provided that, except as provided herein, no Party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other Party hereto; provided, however, that Visteon
may assign this
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Agreement to any directly or indirectly wholly-owned subsidiary of Visteon
without the consent of the Company.
Section 7.07 Other Terms.
All other terms and conditions of the Contribution Agreement, to the extent
they do not conflict with the terms and conditions of this Software Agreement,
are incorporated into this Software Agreement. In the event of a conflict of
terms, the terms of the Contribution Agreement shall control.
Section 7.08 Counterparts.
This Software Agreement may be executed in two or more counterparts, all of
which, taken together, shall be considered to be one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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WHEREFORE, the parties have signed this Software License and Contribution
Agreement as of the day and year first above written.
VISTEON CORPORATION VISTEON GLOBAL TECHNOLOGIES, INC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
------------------------------- ----------------------------------
Title: Executive Vice President and Title: Vice President
Chief Financial Officer ---------------------------------
------------------------------
AUTOMOTIVE COMPONENTS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: President
------------------------------
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