Exhibit 10.9
**-Certain information omitted and filed separately with the Commission pursuant
to a confidential treatment request under Rule 24b-2 of the Commission.
RESEARCH AND DEVELOPMENT SERVICES AGREEMENT
LUCENT TECHNOLOGIES INC. BROADBAND TECHNOLOGIES,
000 Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxxxxx, XX 00000-0000
Lucent Technologies Inc. ("Lucent") agrees to fund, and BroadBand Technologies,
Inc. ("BBT") (collectively the "Parties") agrees to perform research and
development projects to be further described on a project-by-project basis, in
accordance with the terms and conditions stated in this Agreement and any
attachments to this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable considerations, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.01 Effective Date means February 4, 1998.
1.02 BBT Information means any information developed by BBT or any of its
Subsidiaries prior to the effective date or outside of the scope of this
Agreement.
1.03 Lucent Information means Lucent ***************** Technology and Lucent
**************** Technology, collectively. The term also means and includes any
part, component, and associated information developed during a Project Period,
solely by Lucent or any of its Subsidiaries.
1.04 Lucent ***************** Technology means the information transferred or to
be transferred from Lucent to Licensee pursuant to this Agreement as identified
in Attachment 2.
1.05 Lucent ************** Technology means the information transferred or to be
transferred from Lucent to Licensee pursuant to this Agreement as identified in
Attachment 1.
1.06 BBT DLC PRODUCTS means any product of BBT which is designed and marketed by
BBT to be a component of a digital loop carrier system. The digital loop carrier
system would provide concentration from a central office to a traditional Remote
Terminal or a Remote Terminal deployed in an Optical Network Unit-like
configuration, with either a fiber or metallic interface.
1.07 Manufacturing Agreement means the Manufacturing Agreement between the
Parties executed on or about the Effective Date.
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1.08 *************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
************************
1.09 **************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
******************
1.10 A Change of Control occurs upon any one of the following circumstances or
events:
(i) The stockholders of a Party ("Acquired Party") approve a transaction,
including, without limitation, a merger or consolidation (however
denominated or effectuated), with an Acquiror, including, without
limitation, a merger or consolidation, or series of transactions with the
same Acquiror ("Combination"), and immediately after such transaction(s)
less than 60% of the combined voting power of the then-outstanding
securities of the Acquired Party or the Acquiror, will be held in the
aggregate by the holders of securities entitled, immediately prior to such
Combination, to vote generally in the election of directors of the
Acquired Party ("Voting Securities");
(ii) The stockholders of the Acquired Party approve the sale or transfer of all
or substantially all of its assets to any other Person or entity, and less
than 60% of the combined voting power of the then-outstanding Voting
Securities of such Acquiror immediately after such transaction will be
held in the aggregate by the holders of the Voting Securities of the
Acquired Party immediately prior to such sale;
(iii) An Acquiror acquires in one or a series of transactions beneficial
ownership of more than 40% of the outstanding shares of Voting Securities
of a Party;
(iv) The stockholders of a Party approve a plan of complete liquidation or
dissolution of the Party;
(v) Any Acquiror obtains direct or indirect Control (as herein defined) over a
party and, in Lucent's reasonable judgment, such Control may threaten
Lucent's interests. For the purposes of this subsection, the term
"Control" shall mean the possession directly or indirectly of the power to
direct or cause the direction of the management or policies of a Party,
whether through the ability to exercise voting power, by contract or
otherwise;
2
(vi) At any time, Continuing Directors (as herein defined) shall not constitute
at least 50% of the members of the Board ("Continuing Director" means (i)
each individual, who has been a director of the Party for at least twelve
(12) consecutive months before such time and (ii) each individual who was
nominated or elected to be a director of the Party by at least a majority
of the Continuing Directors at the time of such nomination or election);
or
(vii) Any other transaction which has the effect of causing the substantive
changes in the Acquired Party described in any of the preceding
paragraphs.
For the purposes of this Section, the term "Acquiror" shall mean one
person or entity, or two or more persons and/or entities constituting a
"group" for purposes of the Securities Exchange Act of 1934, as amended.
1.11 Material Breach means a breach of this Agreement by BBT that arises from an
unauthorized use or disclosure by BBT of the Lucent Information or Developed
Information where such uncured breach, in Lucent's reasonable opinion, has or is
likely to result in material harm to Lucent and which cannot be cured by
damages, either because of the nature of the harm or BBT's financial inability
to pay damages, which breach is capable of being cured and remains uncured for
more than ten (10) days following notice of the breach from Lucent.
1.12 Developed Information means any newly developed product and technical
information relating to a Project which is developed by BBT pursuant to this
Agreement or a Project Letter. The term does not mean and does not include any
product or underlying information developed prior to the effective date of this
Agreement.
1.13 Joint Information means any newly developed product, technical information,
or inventions relating to a Project which is developed pursuant to this
Agreement with a substantial contribution by one or more of Lucent's employees,
agents or consultants jointly with a substantial contribution of or by one or
more of BBT's employees, agents or consultants during a Project Period. The term
does not mean and does not include any product or underlying information
developed prior to the effective date of this Agreement or during the term of
this Agreement solely by Lucent or BBT.
1.14 Project means a research and/or development project described in an
applicable Project Letter issued in accordance with the terms of this Agreement.
Each Project shall have a separate Project Letter mutually agreed to and
executed by representatives of Lucent and BBT.
1.15 Project Letter means the separate document to be issued pursuant to this
Agreement for each Project, which shall be executed by representatives of Lucent
and BBT, and which shall describe in detail the obligations, responsibilities,
and mutual agreement of Lucent and BBT in connection with the Project. Unless
otherwise mutually
3
agreed by the parties, each Project Letter shall contain, at a minimum, the
elements of information set forth in Section 2.02(c) of this Agreement.
1.16 Project Period means, unless otherwise mutually agreed, the period
commencing on the effective date of a Project Letter and ending after the
delivery by BBT of the Deliverables due pursuant to such Project Letter or
earlier termination of the Project as provided herein.
1.17 Subsidiary of a company means a corporation or other legal entity (i) the
majority of whose shares or other securities entitled to vote for election of
directors (or other managing authority) is now or hereafter controlled by such
company either directly or indirectly; or (ii) which does not have outstanding
shares or securities but the majority of whose ownership interest representing
the right to manage such corporation or other legal entity is now or hereafter
owned and controlled by such company either directly or indirectly; but any such
corporation or other legal entity shall be deemed to be a Subsidiary of such
company only as long as such control or ownership and control exists.
1.18 Plug Compatible product means product which can be installed and operate
with another product so that both are fully functional, with no changes or with
only trivial and inexpensive modification or reconfiguration.
1.19 Severity 1 Defect means the condition which exists when the transmission
system is completely inoperative, and it is not usable by the customer. The
inoperative portion of the licensed software completely restricts the customer's
operation.
1.20 Severity 2 Defect means the condition which exists when the transmission
system is partially inoperative but it is still usable by the customer. The
inoperative portion of the licensed software severely restricts the customer's
operations, but has a less critical effect than a Severity 1 Defect.
ARTICLE 2
MANAGEMENT OF PROJECTS
2.01 As soon as practicable following execution and delivery of this Agreement,
the Parties shall agree on a preliminary list of possible Projects, and
associated fees payable by Lucent to BBT for such Projects, which the Parties
shall consider under this Agreement for performance under a suitable Project
Letter. The Parties recognize that the list of potential Projects on such list
is subject to additions and deletions, by mutual agreement, and shall not bind
either Party until an appropriate Project Letter for any given Project is
executed by both Parties. Except as agreed by BBT, the Projects that are
selected by the Parties shall all relate to the development of
********************* or *******************.
2.02 Project Letters
4
(a) Lucent and BBT presently contemplate the future execution by them of
one or more written Project Letters. All transactions between Lucent and BBT
which relate to a Project shall be covered by the terms of this Agreement, as it
may be amended from time to time, and any applicable Project Letter unless the
parties agree otherwise in writing.
(b) Each duly executed Project Letter shall be deemed, upon its execution,
to be incorporated into this Agreement. If the Project Letter conflicts with the
terms and conditions of this agreement, the terms and conditions of the Project
Letter shall control.
(c) Lucent and BBT agree that each Project Letter, at a minimum, shall
specify the information outlined below:
i) A reference to this Agreement as "Lucent / BBT Research and
Development Services Agreement Effective February 4, 1998";
ii) The effective date of the Project Letter and the contemplated length
of the Project Period;
(iii) A detailed description of the Project in terms of the scope of work
for research and/or development services to be performed, including
a description (or "Specifications") of any information, product and
material that may be delivered pursuant thereto ("Deliverables");
(iv) A statement defining all Deliverables, milestones and their
associated due dates;
(v) The name, address, telephone and facsimile number of the Lucent's
and BBT's representatives assigned to administer the Project;
(vi) The period after delivery to Lucent of the Deliverables within which
Lucent shall accept or reject the Deliverables. The Parties agree
that such period will vary according to the needs of a particular
Project, but shall be kept as short as reasonably possible;
(vii) The maximum total Project cost (including major capital
expenditures) authorized by Lucent, which may not be changed without
the prior written agreement of the parties;
(viii) A statement defining the commencement and completion dates of the
Project Period;
(ix) The warranty period for the Deliverables of the Project, if such
warranty period shall be longer than the one year period specified
in Article 5; and
5
(x) Signatures of representatives authorized by Lucent and BBT to
execute the Project Letter.
2.03 Project Management
(a) The responsibilities of the individuals identified by the
Parties to administer the various Projects shall be:
(i) Monitoring all Project activities, including processing of
information and other administrative details;
(ii) Taking the necessary action to achieve the milestone objectives in
accordance with the scheduled completion dates in the Project
Letters, including assigning identified problems to the responsible
organizations for resolution and changing the milestone dates or
Project Period, if required by the circumstances;
(iii) Providing information for reviewing and approving any interim
reports for the Projects;
(iv) Providing overall guidance and assistance in the event that changes
to the Project are required; and
(v) Preparing the format and reviewing and approving any final reports
of the Project as may be described in the relevant Project Letter.
(b) The individuals shall not discuss marketing or pricing of products
sold by Lucent or BBT.
2.04 BBT shall deliver to Lucent the Deliverables set forth in executed Project
Letters. The Parties anticipate that Deliverables may be changed after the time
of execution of this Agreement as the Parties discuss product, architecture,
capability and other technical issues. The Parties agree to make such changes in
good faith consistent with the discussions of their intentions prior to the
execution and delivery of this Agreement.
2.05 The Parties agree to work together diligently and in good faith to execute
Project Letters for approximately ********************************* within sixty
(60) days from the Effective Date; at least ******************************* more
by October 1, 1998; and the remaining ******************************* in Project
Letter work by October 1, 1999. In the event that the Parties are unable to
execute the Project Letters by that date, the Parties agree to initiate
accelerated arbitration to resolve all disputes that may be preventing agreement
on the Project Letters, using a single arbitrator, no discovery, and a period of
arbitration from initiation to completion of arbitration of no longer than
thirty (30) days.
6
2.06 The Parties may at any time during this Agreement agree to additions,
deductions or deviations (all hereinafter referred to as a "Change") from the
Deliverables. No Change shall be considered as an addition, alteration or
deduction from the Deliverables, nor shall BBT be entitled to any additional
compensation for work done pursuant to or in contemplation of a Change, unless
made pursuant to a written instruction from Lucent ("Change Order") issued by
Lucent. BBT shall not be required to accept any Change, but agrees to consider
all Change Orders in good faith. In no event shall any Change decrease the
aggregate amount specified in Section 3.01(a) to be paid by Lucent under this
Agreement. Increases in the price to be paid by Lucent for any Change shall be
consistent with the method of pricing of the original Deliverables.
2.07 (a) Lucent shall evaluate each Deliverable furnished under this Agreement
for compliance with the Specifications and shall submit a written acceptance or
rejection to BBT within the period for acceptance/rejection specified in the
relevant Project Letter after the receipt by Lucent of the complete Deliverable.
Except as provided in this Section 2.07, Lucent may exercise its right to reject
any Deliverables or portions thereof only on account of the failure of the
Deliverables to meet the Specifications. Acceptance or rejection shall be made
only in writing by the Lucent Representative provided, however, that failure to
reject any Deliverables or portions thereof within the period for
acceptance/rejection specified in the relevant Project Letter shall constitute
acceptance. In no event shall early turnover of the Deliverable by BBT to Lucent
or use during the evaluation period of such Deliverable by Lucent or its
customers for business, profit, revenue or any other lawful use constitute
acceptance of such Deliverable by Lucent. Lucent shall have the right to accept
or reject portions of any Deliverable. Any rejection of a Deliverable or portion
thereof shall identify the failure to meeting Specifications in reasonable
detail sufficient to allow BBT to correct the deficiency.
(b) If a Deliverable evaluated pursuant to Section 2.07(a) is rejected, BBT
agrees to correct, at its expense, the failure to meet the Specifications for
the Deliverable (referred to herein collectively as "defect") leading to such
rejection and resubmit the corrected Deliverable to Lucent within sixty (60)
days after receipt of notice from Lucent of such defect or such longer period as
is consistent with industry practice for the identified defect (collectively
referred to herein as the "Corrective Period"). Lucent shall have thirty (30)
days (or such longer period as is consistent with industry practice) after the
resubmitting of such corrected Deliverable to accept or reject such Deliverable.
If the corrected deliverable complies with the Specifications, BBT shall
incorporate the corrections in the Deliverable.
(c) If the defects in a rejected Deliverable are not corrected within the
Corrective Period or if a resubmitted Deliverable re-tested or re-evaluated by
Lucent during the sixty (60) day re-evaluation period is again rejected, then
Lucent may at its option: (1) retain the Deliverable at an equitable adjustment
in price as may be agreed by the parties, in which case that deliverable shall
be deemed accepted; (2) afford BBT one or more correction extensions for a
period or periods to be specified by Lucent. Unless otherwise
7
agreed, during such optional extension by Lucent, Lucent may terminate the
Project for Deliverable that has been rejected. BBT shall refund that portion of
the price of the Project previously paid to BBT which is in excess of its
equitable adjustment referred to above if the defects are not corrected prior to
termination by Lucent. Lucent may not terminate this Agreement.
(d) Lucent shall have no obligation to accept any Deliverable delivered more
than six months after the delivery date specified for such Deliverable in the
relevant Project Letter.
2.08 Work on any Deliverable shall not be performed outside the United States
without the consent of the Lucent, which shall not unreasonably be withheld.
2.09 (a) It is expressly understood and agreed that this Agreement does not
grant to BBT an exclusive right or privilege to develop for Lucent products of
the type described in this Agreement which Lucent may require. It is, therefore,
understood that Lucent may, and fully intends to, contract with other developers
for the procurement of comparable development. In addition, Lucent shall at its
sole discretion, decide the extent to which Lucent will market, advertise,
promote, support, or otherwise assist in further offerings of the products. BBT
understands and agrees that Lucent intends to and will have alternate and
supplemental sources for the development work set out in this Agreement.
Notwithstanding the foregoing, it is further understood and agreed that if
Lucent utilizes non-BBT sources for the same or similar development work, then
such shall not relieve Lucent of its commitments hereunder to pay BBT twenty-one
million dollars ($21,000,000).
(b) BBT agrees that this Agreement shall neither restrict the right of
Lucent to cease purchasing the Deliverables nor require Lucent to continue any
level of such purchases after payment by Lucent of twenty-one million dollars
($21,000,000) (subject to Section 6.02) pursuant to this Agreement.
2.10 If BBT or Lucent has knowledge that anything prevents or threatens to
prevent the timely delivery of any Deliverable under this Agreement, including
delays in transfer by Lucent of information BBT requires to perform this
Agreement, BBT or Lucent as the case may be, shall immediately notify the
Representative of the other party and include all relevant information
concerning the delay or potential delay.
2.11 If requested by Lucent, BBT will, without additional charge to Lucent: (a)
provide instructors and the necessary instructional material of BBT's standard
format to train Lucent's personnel in the installation, planning and practices,
operation, maintenance, and repair of Deliverables furnished under this
Agreement, with these classes to be conducted at reasonable intervals at
locations agreed upon by BBT and Lucent; or, at the option of Lucent (b) provide
to Lucent training modules or manuals as provided in the Project Letters and any
necessary assistance, covering those areas of interest outlined in (a) of this
clause, sufficient in detail, format, and quantity to allow Lucent to develop
and
8
conduct a training program. It is understood and agreed that the training
anticipated above in (a) and/or (b) shall not exceed two thousand dollars
($2,000) per Project, such amount being included in, and not in addition to, the
contract amount set out in the Project Letter.
ARTICLE 3
PAYMENT
3.01 (a) Lucent and BBT agree that the Parties shall execute Project Letters for
Projects and Deliverables having an aggregate value of twenty-one million
dollars ($21,000,000.00). This sum shall exclude capital expenditures to be made
pursuant to any Project Letters, which shall be at Lucent's expense, and all
capital equipment purchased through such expenditures shall be owned by Lucent.
On the first day of each calendar quarter for the 12 calendar quarters after the
earlier to occur ofApril 1, 1998 or execution and delivery by both Parties of
the one or more Project Letters having a price of at least the amount of the
first installment, Lucent will pay BBT One Million Seven Hundred Fifty Thousand
Dollars ($1,750,000), unless the Parties mutually agree upon an adjustment to
that amount in view of the anticipated volume of activity during the calendar
quarter following the adjusted quarter. However, if mutually agreed upon
milestones have not been met by BBT through no fault of Lucent during any
previous quarter, then the advance payment for upcoming quarters will be
reasonably adjusted accordingly. BBT shall provide to Lucent, on a quarterly
basis, an accounting report which compares the dollar amount of completed
Deliverables to amounts paid by Lucent pursuant to the scheduled payments. Upon
the earlier of the termination of this Agreement or completion of the last
Project, the Parties shall make such payments to one another as shall cause the
aggregate amount paid by Lucent to equal the amount agreed to be paid under this
Section, subject to adjustment as provided in Sections 2.06, 2.07, and 6.02.
(b) The Parties will attempt in good faith to select projects related to
**************************************** which are useful to both Parties. Each
Project Letter shall include a "Reusability Value". Such Reusability Value shall
be the mutually agreed value of the Project Deliverables to BBT.****************
********************************************************************************
********************************************************************************
********************************************************************************
*********************************** and such aggregate Reusability Value. If
this Agreement is terminated prior to the third anniversary of the Effective
Date, the ******* *********************** amount shall be reduced pro rata based
on the percentage of the three (3) year period after the Effective Date that
occurred prior to the date of termination and Lucent shall pay to BBT, within
ninety (90) days of termination, an amount equal to the difference between the
pro rata reduced amount and the aggregate Reusability Value.
9
3.02 The Deliverables shall be delivered free from all claims, liens, and
charges whatsoever. Lucent reserves the right to require proof that all third
parties furnishing labor and materials for the Deliverables have been paid.
3.03 Lucent shall reimburse BBT only for the following tax payments with respect
to transactions under this Agreement unless Lucent advises BBT that an exemption
applies: state and local sales and use taxes, as applicable. Taxes payable by
Lucent shall be billed as separate items on BBT's invoices and shall not be
included in BBT's prices. Lucent shall have the right to have BBT contest any
such taxes that Lucent deems improperly levied at Lucent's expense and subject
to Lucent's direction and control.
ARTICLE 4
GRANTS OF RIGHTS TO USE
INTELLECTUAL PROPERTY
4.01 Subject to Section 4.02, BBT grants to Lucent, a perpetual, fully paid up,
non-exclusive, nontransferable, and worldwide:
a) right to use BBT Information delivered with or included in a
Deliverable for the design, development, manufacture, marketing or maintenance
of Lucent's products other than products which are Plug Compatible with BBT
products, provided that this Section shall not convey to Lucent any right to
disclose the BBT Information to any entity other than its Subsidiaries, which
Subsidiaries shall hold such information under the same obligations of
confidentiality to BBT set forth in Article 7 hereof;
b) license under its copyrights on or covering any such BBT Information to
create derivative works, and to use, copy, and distribute the BBT Information
and any derivative works, but only in connection with the design, development,
manufacture, marketing or maintenance of Lucent's products other than products
which are Plug Compatible with BBT products, provided that this subsection shall
not convey to Lucent any right to disclose the BBT Information to any entity
other than its Subsidiaries, which Subsidiaries shall hold such information
under the same obligations of confidentiality to BBT set forth in Article 7
hereof;
c) license under any claim of any patent which BBT has a right to license
as of the effective date of this Agreement which would be infringed by a Lucent
product (other than products which are Plug Compatible with BBT products), to
the extent that such claim is necessarily infringed by the use of the
Deliverable; and
d) right to grant to a third party supplier, subject to suitable
confidentiality agreements, rights of the scope granted to Lucent under Sections
4.01(a), 4.01(b) and 4.01(c), but only to the extent reasonably necessary to
carry out activities of supplying Lucent with components of Lucent's products or
with such entire products for resale by Lucent;
10
e) license under its copyrights to copy and distribute "Distributable
Versions" (as that term is defined in this Paragraph) of Lucent's products
(other than products which are Plug Compatible with BBT products) and associated
documentation. A Distributable Version of such products may include object code
compiled from the BBT Information and shall be limited to information
commercially reasonably necessary to distribute in connection with commercial
transfers of such products. A use shall be deemed to be commercially reasonably
necessary for purposes of this paragraph to the extent BBT distributes like
material with its own products. Products distributed to third-parties pursuant
to the right and license granted in this paragraph shall not be deemed to
include confidential information and such distribution shall not be deemed to be
a breach of Article 7 hereof.
4.02 In the event that Lucent elects to manufacture or have manufactured (by a
third party supplier listed on Attachment 3, which list may be expanded to
include additional suppliers with prior written consent of BBT) any
**************** which is based on a Deliverable which includes BBT Information
which is ************************************************** technology, Lucent
shall either:
(a) purchase such products from BBT pursuant to the terms of the
Manufacturing Agreement; or
(b) pay to BBT a royalty on each of such products manufactured by or for
Lucent, which royalty shall be specified in the relevant Project Letter for such
Deliverables.
4.03 Lucent grants to BBT, a limited, ************, non-exclusive, and
nontransferable license to use the Lucent *************** Technology and Lucent
**************** Technology, and any Lucent-owned copyright and patent on such
technology, solely for the purpose of design and development by BBT of an
**************************** ******* for Lucent.
4.04 All intellectual property rights to the Developed Information (other than
BBT Information) and to Joint Information, developed in the course of developing
Deliverables under this Agreement or any Project Letter and specifically for
inclusion in Deliverables under this Agreement, shall be jointly owned by Lucent
and BBT. It is understood that personnel of BBT may perform development for BBT
or third Parties that is not pursuant to this Agreement and Lucent shall have no
ownership rights to the results of such development work. Subject to Section
4.05, the rights of joint ownership in the Developed Information shall be rights
of full non-exclusive worldwide ownership, including rights to license and
transfer, subject to provisions of this Agreement, including the following:
(a) Each Party may exploit its rights to the Developed Information or
Joint Information independent of the other and may retain all economic benefits
thereof;
11
(b) Neither Party shall have any obligation to account to the other for
profits derived from the Developed Information or Joint Information.
(c) Each Party shall have full rights to enforce the Developed Information
or Joint Information intellectual property rights against non-authorized users.
Each Party agrees to cooperate with the other in connection with enforcement of
intellectual property rights, if participation of both parties is required,
provided that the Party requesting cooperation shall pay the reasonable expenses
of the other Party; and.
(d) The Parties will cooperate in filing patent applications, copyright
registrations, and other formalities required to protect or enforce their joint
intellectual property rights in the Developed Information or Joint Information.
Neither Party shall be required, however, to incur any costs, such as patent
application costs, to which it has not agreed.
4.05 Lucent's and BBT's rights to use the Developed Information shall be
restricted as follows:
(a) Lucent shall not use the Developed Information, or any intellectual
property in such Developed Information, in the development or manufacture of a
product which is Plug Compatible with any BBT product, without the prior written
consent of BBT, and Lucent shall not license a third party to use the Developed
Information for such purpose.
(b) BBT shall use, or license others to use, the Developed Information
solely in connection with current and future BBT DLC PRODUCTS. BBT shall not use
the Developed Information, or any intellectual property in such Developed
Information, in the development or manufacture of a product which is Plug
Compatible with any Lucent product, without the prior written consent of Lucent,
and BBT shall not license a third party to use the Developed Information for
such purpose.
4.06 Each Party shall own separately, not jointly, any improvement or derivative
work to the Developed Information or Joint Information created by such Party,
except to the extent such improvement or derivative work also constitutes
Developed Information or Joint Information. Use and disclosure of improvements
or derivative works shall not be restricted by this Agreement except to the
extent the same utilizes Developed Information, Joint Information, BBT
Information or Lucent Information.
4.07 BBT agrees that BBT will disclose and furnish promptly to Lucent any and
all Developed Information, including technical information, computer or other
apparatus programs, specifications, drawings, records, documentation, works of
authorship or other creative works, ideas, knowledge or data, originated or
developed by BBT or by any of BBT's agents, employees, or contractors as a
result of activities performed under, or in anticipation of, this Agreement. BBT
also agrees to acquire from BBT's agents, employees, and contractors such
assignments, rights and covenants as required to assure that Lucent shall
receive the rights provided for in this Agreement.
12
4.08 Lucent agrees to reproduce BBT's copyright notice contained in any
documentation reproduced without change by Lucent. For documentation which is
reformatted or modified by Lucent, Lucent shall have the right to place only
Lucent's own copyright notice on the reformatted or modified documentation,
except as prohibited by BBT's agreements with third party licensors. It is the
intent of the parties that Lucent's copyright notice shall be interpreted to
protect the underlying copyright rights of BBT and third party licensors to BBT
to the documentation to the extent such underlying rights are owned by .BBT or
such third party licensors.
4.09 Neither Party will use, distribute, transfer or transmit any products,
software or technical information (even if incorporated into other products)
provided under this Agreement except in compliance with U.S. export laws and
regulations (the "Export Laws"). Neither Party will, directly or indirectly,
export or re-export the following items to any country which is in the then
current list of prohibited countries specified in the applicable Export Laws:
(a) software or technical data disclosed or provided to such Party by the other
Party or such other Party's subsidiaries or affiliates; or (b) the direct
product of such software or technical data. The obligations stated above in this
clause will survive the expiration, cancellation or termination of this
Agreement or any other related agreement.
ARTICLE 5
WARRANTIES AND LIABILITIES
5.01 (a) Materials provided by BBT to Lucent in the course of development, for
testing or quality assurance purposes, are provided "as is" without any warranty
of performance or quality. The parties acknowledge and agree, however, that some
prototype products may be produced in quantity and supplied by BBT to Lucent for
installation at Customer sites on an "early release" or "beta" basis ("Installed
Prototypes"), where a limited warranty as provided in this clause is
appropriate.
(b) BBT warrants to Lucent that the final design for each Deliverable
provided by BBT to Lucent under this Agreement will be free of defects that
would cause the Deliverable produced according to that design to fail to meet
the Specifications for that Deliverable agreed by the parties. In addition, BBT
warrants to Lucent that final software for each Deliverable provided by BBT to
Lucent under this Agreement shall conform with the Deliverable performance
Specifications agreed by the Parties, and to BBT's knowledge will be free of
Severity 1 and Severity 2 Defects. These warranties, for the final design and
software provided under this Agreement for each Deliverable, shall continue for
a period of ******** after the final design and software for that Deliverable
are accepted by Lucent, or for such longer period specified in the relevant
Project Letter.
(c) With regard to Installed Prototypes, if Installed Prototypes furnished
contain one or more assignable manufacturer's warranties, BBT shall be deemed to
have assigned such warranties to Lucent and customers at delivery. BBT warrants
that at the time of
13
delivery to Lucent, Installed Prototypes shall be free of any security interest
or any other lien or any other encumbrance whatsoever. All warranties shall
survive inspection, acceptance and payment.
(d) Defective or non-conforming Installed Prototypes will, at BBT's
option, either be returned to BBT for repair or replacement, at no cost to
Lucent, with risk of in-transit loss and damage borne by BBT and freight paid by
BBT, or be repaired or replaced by BBT on Lucent's or Lucent's customers' site
or another site designated by Lucent at no cost to Lucent. If the defect is
related to defective workmanship of materials or manufacture, BBT shall complete
repairs and ship the repaired material within ten (10) working days of receipt
of defective or non-conforming material, or at Lucent's option, ship replacement
material within ten (10) working days after verbal notification is given to BBT
by Lucent. If the defect is related to design or software, the parties will
agree on a schedule for correction.
(e) BBT's sole liability, and Lucent's exclusive remedy, for claims by
Lucent for defective or non-conforming materials made during the relevant
warranty period, shall be: (1) for designs or software, at no additional cost to
Lucent, correction of the design or software to make it conforming, and
providing a copy of the corrected design or software to Lucent; and (2) for
Installed Prototypes, at no additional cost to Lucent, correcting the defective
Installed Prototypes as provided in this clause.
(f) Replacement material shall be warranted as set forth above in this
section. Any Installed Prototype which is repaired, modified, or otherwise
serviced by BBT shall be warranted as provided in this section for the remainder
of the warranty period (based upon the date of repair, modification or other
service is completed and accepted by Lucent) or ninety (90) days after the
Installed Prototype is returned by BBT, whichever is later.
5.02 (a) BBT believes the BBT Information and Developed Information to be
furnished hereunder will be true and accurate. Except as provided in Sections
2.07 and 5.01, BBT and its Subsidiaries shall not be liable for errors or
omissions in the BBT Information or the Developed Information.
(b) BBT warrants that the BBT Information licensed to Lucent and the
Developed Information to be furnished to Lucent under this Agreement are and
will be the original work of BBT (or BBT has and will have a valid right to
license such property) and it has the power to grant the rights described in
this Agreement. BBT warrants and represents that upon Lucent's acceptance of the
Deliverables, such Deliverables shall be free of any security interest or any
other lien or any other encumbrance whatsoever.
5.03 BBT warrants that software will record, store, process and present calendar
dates falling on or after January 1, 2000, in the same manner and with the same
functionality as it performed before January 1, 2000. This maintenance will be
considered part of and
14
covered under the maintenance provisions of the Agreement at no additional
charge to Lucent.
5.04 EXCEPT AS PROVIDED IN THIS ARTICLE, BBT MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, BBT AND
ITS SUBSIDIARIES MAKE NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE USE OF THE BBT INFORMATION OR
THE DEVELOPED INFORMATION OR ANY PORTION OF IT WILL NOT INFRINGE ANY PATENT OF
ANY THIRD PARTY, AND IT SHALL BE THE SOLE RESPONSIBILITY OF LUCENT TO MAKE SUCH
DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF LICENSES UNDER
PATENTS OF THIRD PARTIES. BBT AND ITS SUBSIDIARIES SHALL NOT BE HELD TO ANY
LIABILITY WITH RESPECT TO ANY PATENT INFRINGEMENT CLAIM MADE BY LUCENT OR ANY
THIRD PARTY ON ACCOUNT OF, OR ARISING FROM THE USE OF, THE BBT INFORMATION OR
DEVELOPED INFORMATION OR ANY PORTION OF IT.
5.05 At Lucent's request, BBT agrees to indemnify, defend and hold harmless
Lucent, its affiliates, customers, employees, successors and assigns (all
referred to as "Lucent") from and against any losses, damages, claims, fines,
penalties and expenses (including reasonable attorney's fees) that arise out of
or result from: (1) assertions under Workers' Compensation or similar acts made
by persons furnished by BBT; and (2) injuries or death to persons or damage to
property, including theft, in any way arising out of or caused or alleged to
have been caused by the Deliverable or activities performed by, or material
provided by BBT or persons furnished by BBT: (a) if the Deliverables do not meet
the specifications, except to the extent such injury or death to persons or
damage to property is caused by the negligence or willful or other wrongful act
or omission of Lucent or its employees; and (b) if the Deliverables meet the
Specifications, to the extent such injury or death to persons or damage to
property is caused by the negligence or willful or other wrongful act or
omission of BBT or its employees.
5.06 Neither Lucent nor BBT shall be liable for any loss, damage, delay or
failure of performance resulting directly or indirectly from any cause which is
beyond its reasonable control, including but not limited to acts of God,
extraordinary traffic conditions, riots, civil disturbances, wars, states of
belligerency or acts of the public enemy, strikes, work stoppages, or the laws,
regulations, acts or failure to act of any governmental authority. In the event
that performance under this Agreement is prevented for a continuous period of
two (2) months or longer by any of the foregoing causes, the Party which does
not receive the benefit of the performance of the other Party shall have the
right to terminate this Agreement by giving written notice to the other Party.
5.07 NOTWITHSTANDING ANY OTHER SECTIONS OF THIS AGREEMENT TO THE CONTRARY,
NEITHER PARTY SHALL BE LIABLE FOR
15
INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY NATURE, HOWEVER CAUSED.
ARTICLE 6
TERMINATION
6.01 Lucent may terminate this Agreement by notice in writing to BBT upon the
occurrence of (1) a Change of Control of BBT, or (2) a Material Breach by BBT.
With respect to a Change in Control, Lucent's right to terminate will expire
unless Lucent notifies BBT of its intention to exercise that right within thirty
(30) days (or such longer period as may be agreed to) of Lucent's receipt of
notice from BBT of a planned or actual Change in Control. A Change of Control of
BBT which results from bankruptcy proceedings shall be treated as a Change of
Control of BBT. In the event that this Agreement is terminated as a result of a
rejection of this Agreement by a Trustee in bankruptcy, Lucent shall have no
further obligations to make any payments pursuant to Section 3.01 following such
termination.
6.02 Upon termination of this Agreement pursuant to Section 6.01 hereof, all
obligations and rights of the Parties under this Agreement shall continue except
as follows:
(a) With regard to Projects for which a Project Letter has been executed by the
Parties, at Lucent's option, Lucent may:
(1) Pay the full fees stated in the Project Letter for such Project, in
which case BBT shall complete the Project and deliver the Deliverables per
the Project Letter; or
(2) Make no further payments under the Project Letter to BBT following
termination of the Agreement, in which case BBT shall be released of its
obligations under the Project Letter. BBT shall be entitled to keep any
payments made under the Project Letter prior to termination, and Lucent
shall be entitled to receive BBT's development work in process relative to
Deliverables specified in the Project Letter (including prototypes,
drawings, and the like). For purposes of clarification the Parties
recognize that each Party will have joint ownership in the Developed
Information and a joint right to receive copies of the development work in
process.
(b) Neither Party shall be obligated to execute any further Project Letters, and
Lucent shall have no obligation to make any payments under Section 3.01 not due
prior to the date of termination.
(c) Except in the case of Section 6.02(a)(1), BBT's license under Section 4.03
shall be terminated, upon which termination BBT shall immediately return to
Lucent all Lucent
16
*************** Technology and Lucent **************** Technology. For purposes
of clarification, Termination under Section 6.01 shall not affect the rights of
the Parties with respect to Projects completed prior to the date of termination.
6.03 (a) If a voluntary or involuntary petition under applicable bankruptcy laws
is filed by or against BBT, unless BBT provides to Lucent reasonable assurances
that BBT will be able to comply with the confidentiality provisions of this
Agreement regarding intellectual property, Lucent may terminate the license
granted in Section 4.03 hereof. BBT shall immediately notify Lucent of the
filing of any bankruptcy petition by or against BBT. Notwithstanding the
foregoing, a Change in Control of BBT which results from bankruptcy proceeds
shall be treated as provided in Section 6.01.
(b) If a proceeding is commenced under any provision of the United States
Bankruptcy Code, voluntary or involuntary, by or against either party, and this
Agreement has not been terminated, the non-debtor party may file a request with
the bankruptcy court to have the court set a date within sixty (60) days after
the commencement of the case, by which the debtor party will assume or reject
this Agreement, and the debtor party shall cooperate and take whatever steps are
necessary to assume or reject the Agreement by such date.
6.04 In the event Lucent terminates any license right of BBT hereunder, any
obligation of BBT to Lucent which requires use of such terminated license, shall
immediately terminate. The rights of the Parties shall be governed by Section
6.02.
6.05 Upon termination of this Agreement, the Parties agree to provide full
cooperation in the orderly transition of the work to Lucent or its designee,
including, but not necessarily limited to packing and preparing for shipment any
materials or other inventory to be transferred, provision of reports, files and
similar media necessary for continuation of the work transferred, continuation
of work at reducing levels if necessary during a transition period and at
reduced levels if work is transferred in part. Prices for additional work such
as packing and preparation for shipment, and revision of prices resulting from
revised volumes, if necessary, shall be mutually agreed upon by the Parties.
17
ARTICLE 7
CONFIDENTIALITY
7.01 Each party agrees:
(i) that it will not use the Lucent Information (in the case of BBT) or
the BBT Information (in the case of Lucent), except as expressly
provided herein;
(ii) that it shall keep the Lucent Information or the BBT Information, as
the case may be, confidential;
(iii) that it will not, without the other party's express written
permission, make or have made, or permit to be made, more copies of
any of the Lucent Information or the BBT Information, as the case
may be, than are necessary for its use hereunder;
(iv) that it will not, without the other party's express written
permission, (a) use in advertising, publicity, or otherwise any
trade name, trademark, trade device, service xxxx, symbol or any
other identification or any abbreviation, contraction or simulation
thereof owned or used by such other party or any of its
Subsidiaries, or (b) represent, directly or indirectly, that any
product or service produced in whole or in part with the use of any
of the Lucent Information or the BBT Information, as the case may
be, is a product or service of such other party or any of its
Subsidiaries or is made in accordance with or utilizes any
information or documentation of the other party or any of its
Subsidiaries; provided, however, that nothing in this Section 7.01
shall be construed as prohibiting a party from representing that it
is licensed with respect to such information; and
(v) that the Lucent Information or the BBT Information, as the case may
be, and all documents furnished hereunder are deemed to be and shall
remain the property of the furnishing party, and that upon
termination of this Agreement, each shall upon request deliver to
the other party all documents containing any of the Lucent
Information or the BBT Information, as the case may be, and all
copies thereof then under such party's or its supplier's control
(except to the extent such party is entitled hereunder to retain
such information).
7.02 It is recognized that during the performance of this Agreement, each
Party's personnel may unavoidably receive or have access to private or
confidential information of the other Party which is not the BBT Information or
the Lucent Information. Each
18
Party agrees that all such information shall be treated for the purposes of the
provisions of this Agreement as if it were BBT Information or Lucent
Information, as the case may be.
7.03 (a) A party receiving proprietary or confidential information in connection
with this Agreement, including the Lucent Information and the BBT Information,
will (i) maintain it in confidence and will not disclose any part of it to
anyone except those of its employees, agents or advisors having a need to know
in order to accomplish the purposes of this Agreement and who are bound by terms
similar to those of this section, (ii) use at least the same degree of care to
maintain its secrecy as it uses in maintaining the secrecy of its own
confidential and trade secret information of equal importance, (iii) always use
at least a reasonable degree of care in maintaining its secrecy, and (iv) use it
only for the purpose of exercising its rights and performing its obligations
under this Agreement.
(b) Neither party will have any obligation (confidentiality or restriction
on use) concerning that part of the other's information which (i) at the time of
disclosure in writing is not marked with a legend identifying it as
"Proprietary", "Confidential" or a similar legend or, within thirty (30) days
after oral disclosure, is not so identified in writing, (ii) at the time of
disclosure to the receiving party was known to that party free of restriction as
evidenced by documentation in that party's possession, (iii) is lawfully
obtained from a third party under no obligation of confidentiality, (iv) is or
becomes publicly available other than as a result of an act or failure to act of
the receiving party, or (v) is independently developed by a party without use of
the other's confidential information.
(c) If any part of a party's confidential or proprietary information is
wrongfully disclosed or used, then, in addition to the remedies provided by this
Agreement or by law or in equity, the party which provides the information will
be entitled to an injunction preventing further disclosure of the information by
the other party or further disclosure or use of the information by any third
parties to whom the information has been wrongfully disseminated.
ARTICLE 8
MISCELLANEOUS
8.01 BBT shall not assign any right or interest under this Agreement (excepting
solely for moneys due or to become due) without the prior written consent of
Lucent. Subject to Lucent's right to terminate upon the occurrence of a Change
in Control, a merger or consolidation shall not be deemed to be an assignment.
BBT will provide Lucent with thirty (30) days prior written notice prior to the
closing of a merger or consolidation.
8.02 Each Party agrees that it will not employ, and will not directly or
indirectly solicit employment of, employees of the other Party during the term
of this Agreement and for two years thereafter. This restriction extends to and
includes the subsidiaries and
19
affiliates of each Party. This restriction does not apply to any person who has
not been employed by the other party for at least six months.
8.03 BBT agrees to do the following with respect to property owned by Lucent
under BBT's possession (other than the Developed Information developed by BBT
pursuant to this Agreement):
(a) Deliver such property to Lucent upon demand, FOB BBT's plant without
additional charge for removal, packing, or crating.
(b) Except as set forth below in this clause, BBT shall not allow any security
interest, lien, tax lien or other encumbrance (collectively referred to as
"encumbrance") to be placed on any such Lucent property. BBT shall give Lucent
immediate written notice should any third party attempt to place or place an
encumbrance on such Lucent property. BBT shall indemnify and hold Lucent
harmless from any such encumbrance.
(c) Lucent may inspect, inventory, and authenticate the account of the Lucent
property during BBT's normal business hours. BBT shall provide Lucent access to
the premises where all such Lucent property is located. The obligations assumed
by BBT with respect to the Lucent property are for the protection of Lucent's
property. BBT shall, at Lucent's option, return to Lucent or hold for Lucent's
disposition any or all of such Lucent property in BBT's possession at (a) the
completion of the Project for which such Lucent property was acquired, or , (b)
expiration, cancellation or termination of this Agreement, or (c) the withdrawal
of the Lucent Property , as provided above.
8.04 This Agreement and all transactions under it shall be governed by the laws
of the State of New Jersey, without regard to conflicts of laws provisions. The
Parties agree to submit to the jurisdiction of any court wherein an action is
commenced against the other Party based on a claim for which one Party has
agreed to indemnify the other Party under this Agreement.
8.05 BBT and all persons furnished by BBT shall comply at their own expense with
all applicable laws, ordinances, regulations and codes, including the
identification and procurement of required permits, certificates, licenses,
insurance, approvals and inspections in performance under this Agreement.
8.06 This Agreement shall constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and shall not be modified
or rescinded, except by a writing signed by BBT and Lucent. Estimates or
forecasts furnished by Lucent shall not constitute commitments. The provisions
of this Agreement supersede all contemporaneous and prior oral and written
communications and understandings of the parties with respect to the subject
matter of this Agreement.
8.07 Neither Party shall implead or bring an action against the other Party
based on any claim by any person for personal injury or death to an employee of
a Party for which the
20
other Party has previously paid or is obligated to pay worker's compensation
benefits to such employee or claimant and for which such employee or claimant
could not otherwise bring legal action against the other Party.
8.08 All persons furnished by any Party shall be considered solely employees or
agents of that Party, who shall be responsible for payment of all unemployment,
social security and other payroll taxes, including contributions when required
by law.
8.09 The obligations of the Parties under this Agreement, which by their nature
would continue beyond the termination, cancellation or expiration of this
Agreement, shall survive termination, cancellation or expiration of this
Agreement.
8.10 BBT shall maintain and cause BBT's subcontractors to maintain during the
term of this Agreement: (1) Workers' Compensation insurance as prescribed by the
law of the state or nation in which the work is performed; (2) employer's
liability insurance with limits of at least five hundred thousand dollars
($500,000) for each occurrence; (3) automobile liability insurance if the use of
motor vehicles is required, with limits of at least one million dollars
($1,000,000) combined single limit for bodily injury and property damage per
occurrence; (4) Commercial General Liability ("CGL") insurance, ISO 1988 or
later occurrence form of insurance, including Blanket Contractual Liability and
Broad Form Property Damage, with limits of at least one million dollars
($1,000,000) combined single limit for bodily injury and property damage per
occurrence; (5) if the furnishing to Lucent (by sale or otherwise) of material
or construction services is involved, CGL insurance endorsed to include products
liability and completed operations coverage in the amount of three million
dollars ($3,000,000) per occurrence; and (6) Errors and Omissions or
Professional Liability insurance in the amount of at least one million dollars
($1,000,000) per claim with an aggregate of at least three million dollars
($3,000,000) inclusive of legal defense costs, to be maintained for a period of
at least one (1) year after completion of the Agreement. All CGL and automobile
liability insurance shall designate Lucent Technologies Inc., its affiliates,
and its directors, officers and employees (all referred to as "Lucent") as
additional insured. All such insurance must be primary and non-contributory and
required to respond and pay prior to any other insurance or self-insurance
available. Any other coverage available to Lucent shall apply on an excess
basis. BBT agrees that BBT, BBT's insurer(s) and anyone claiming by, through,
under or in BBT's behalf shall have no claim, right of action or right of
subrogation against Lucent and its customers based on any loss or liability
insured against under the foregoing insurance. BBT shall furnish Lucent copies
of certificates of insurance upon request by Lucent. In the event BBT changes
insurers, BBT shall notify Lucent of such change. Insurance companies providing
coverage under this Agreement must be rated by A-M Best with at least an A-
rating.
8.11 Each Party shall be responsible for its own labor relations with any labor
organization either representing or seeking to represent its employees and shall
negotiate and seek to adjust all disputes between it and its employees or any
union representing its employees. Except as otherwise provided in this clause,
and subject to the terms of this
21
Agreement, either Party may freely enter into any contract with any union
representing employees employed by it to perform the duties contemplated by the
requirements of this Agreement. Neither Party shall enter into a contract that
purports to obligate the other Party to the union, either as successor or
assignee of such Party, or in any other way, on the termination of this
Agreement, or at any other time. Each Party warrants that it is not a party to
any existing union contract purporting so to obligate the other Party.
8.12 Any notice or demand which under the terms of this Agreement or under any
statute must or may be given or made by BBT or Lucent shall be in writing and
shall be given by U.S. Mail to the respective parties as follows:
To Lucent: Lucent Technologies Inc.
Address: 00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Access Product Management Vice President
with a copy to:
Lucent Technologies Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Counsel - Switching and Access
To: BroadBand Technologies, Inc.
Address: Xxxx Xxxxxx Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
Attn: Chief Financial Officer
with a copy to:
Xxxxx X. Xxxxxxxx
Xxxxxxxxxx Xxxxxxxx LLP
Post Office Xxx 000000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
The effective dates of such notice shall be: (1) five (5) days following the
date mailed for certified or registered letters, and (2) two (2) days following
the date mailed for overnight letters. The above addresses may be changed at any
time by giving prior written notice as above provided.
8.13 If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable this entire Agreement, but rather this entire Agreement
shall be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the parties shall be
construed and enforced accordingly.
22
8.14 The failure of either Party at any time to enforce any right or remedy
available to it under this Agreement or otherwise with respect to any breach or
failure by the other Party shall not be construed to be a waiver of such right
or remedy with respect to any other breach or failure by the other Party.
8.15 (a) The following procedures shall apply to any dispute or disagreement
between the Parties or any of their Subsidiaries arising out of this Agreement.
(b) First:
(i) either Party may give written notification of such dispute or
disagreement to the other Party and
(ii) the Parties shall communicate with each other promptly with a
view to resolving such dispute or disagreement within 21 days (or such
extended period as the Parties agree is appropriate in any case) after
such written notification is given.
(c) The giving of any notice regarding any dispute or disagreement under this
Section 8.15 shall toll the running of all applicable statutes of limitation
until the later of (i) 90 days following the giving of such notice or (ii) 30
days following the termination of discussions between the Parties concerning
such dispute or disagreement.
(d) Second, if at the end of the 21 day period referenced in Section 8.15(b)(as
it may be extended) such dispute or disagreement has not been resolved to the
satisfaction of both parties, either Party may request in writing that such
dispute or disagreement be the subject of non-binding mediation. Following such
request, the Parties shall endeavor in good faith promptly to identify a single
person (who shall be a person with experience and good reputation) who shall
assist the Parties in discussing such dispute or disagreement and in attempting
to reach a mutually acceptable business resolution. Such mediation process shall
terminate not later than 30 days following the request therefor (or such
extended or shorter period as the Parties agree is appropriate). All applicable
statutes of limitation shall be tolled during the period of mediation.
(e) Third, if at the end of the 30 day period referenced in Section 8.15(d) (as
it may be extended or shortened) such dispute or disagreement has not been
resolved to the satisfaction of both parties, either Party (the "complainant")
may commence binding arbitration by giving the other Party (the "respondent")
notice in writing (the "initiating notice") setting forth in reasonable detail
the nature of its claim and the relief requested stating that the complainant is
invoking the procedures set forth in this Section 8.15(e) and (f) and naming the
complainant's representative on the Arbitration Panel (as defined below). Within
21 days of receipt of an initiating notice, the respondent shall give the
complainant notice in writing (the "response") setting forth in reasonable
detail: (1) the basis of its response to the claim; (2) the nature of any
counterclaim it has against the complainant arising from the same set of facts
and circumstances that gave rise to the original claim; (3) any other
counterclaim that Party wishes to bring at that time (although
23
the Party has no obligation to bring such counterclaims at that time); (4) the
relief requested; and (5) naming the respondent's representative on the
Arbitration Panel. The two representatives shall select a third person who is
mutually acceptable to them. If the representatives fail to make such selection
within 21 days, the complainant and the respondent shall each replace its
representative with a new representative and the new representatives shall be
subject to the preceding sentence and this sentence. Once a third person is
selected, such person together with the representatives of the complainant and
the respondent shall form the Arbitration Panel. The date upon which the
Arbitration Panel is formed shall be the "Commencement Date".
(f) The Arbitration Panel shall conduct proceedings to determine the merits
under applicable law of the claims set forth in the initiating notice and the
response. The proceedings shall be administered by JAMS/Endispute in accordance
with its Comprehensive Arbitration Rules and Procedures in effect as of the
Effective Date, subject to the following additional rules:
(i) the proceedings shall take place in New York City;
(ii) the Arbitration Panel (including, if necessary, any replacement(s)
to the Arbitration Panel) shall be selected as set forth in Section
8.15(e);
(iii) the available relief shall include damages, injunctive relief and
equitable relief to the extent allowed under the applicable law,
this Agreement and any other agreement between the parties;
(iv) the parties shall attempt in good faith promptly to agree on the
nature and extent of any discovery in connection with the
arbitration, provided that, in the absence of such agreement,
discovery shall be governed by JAMS/Endispute's Comprehensive
Arbitration Rules and Procedures and the applicable law with respect
to privilege and other protections from disclosure, including the
work product doctrine;
(v) the final decision of the Arbitration Panel (the "Award") shall be
issued within six months of the Commencement Date (the date of
issuance of the Award being the "Award Date") and must be joined by
at least two members of the Arbitration Panel;
(vi) each party to the proceedings shall pay its own costs in connection
with the proceedings, including the costs and expenses of its
representative on the Arbitration Panel, and the parties shall share
equally the other costs of the proceedings, including the fees of
the third member of the Arbitration Panel, except that the
prevailing party shall be entitled to recover its attorneys' fees
incurred in prosecution thereof.
(g) In accordance with the Federal Arbitration Act, 9 U.S.C. ss.1 et seq., the
Award shall
24
be final and binding and judgment thereon may be entered by any state or federal
court having jurisdiction thereof.
(h) Nothing in this Section 8.15 shall be construed to preclude either party
from seeking injunctive relief in a court of competent jurisdiction to prevent
imminent irreparable harm. The dispute resolution procedures set forth herein
shall be stayed pending disposition of any application for such relief. The
Parties agree that a court of competent jurisdiction may consider the merits of
any claim that is subject to the dispute resolution procedures set forth herein
to the extent necessary to resolve any permissible application for injunctive
relief.
8.16 This Agreement may be executed in one or more counterparts.
8.17 Breach by a Party of any other agreement between the Parties shall not
constitute a breach of this Agreement, unless the same conduct independently
breaches this Agreement. A breach of this Agreement shall not constitute a
breach of any other agreement between the Parties, unless the same conduct
independently breaches such other agreement.
25
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives on the respective
dates entered below.
LUCENT TECHNOLOGIES INC.
By:________________________________
Title:_____________________________
Date:______________________________
BROADBAND TECHNOLOGIES, INC.
By:________________________________
Xxxxx Xxx
President & CEO
Date:______________________________
THIS AGREEMENT DOES NOT BIND OR OBLIGATE EITHER PARTY
IN ANY MANNER UNLESS DULY EXECUTED BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES
26
ATTACHMENT 1
Lucent **************** Technology
Lucent's **************** Technology means the following *********** information
owned by Lucent for Lucent's ***********************************************
******************************************************* :
Parts list (including part numbers and supplier lists)
Schematic diagrams
Board layout documentation
For purposes of clarity, the parties recognize that Lucent's **************
Technology shall not include any source code programs, read-only memory (ROM)
code, embedded protocols (interface specifications), or application specific
integrated circuit (ASIC) design information or schematics.
27
ATTACHMENT 2
Lucent ********************** Technology
Lucent's ********************* Technology means the following ****************
information owned by Lucent for Lucent's *************************************
**********:
Parts list (including part numbers and supplier lists)
Schematic diagrams
Board layout documentation
Interface specifications
For purposes of clarity, the parties recognize that Lucent's
************************ Technology shall not include any source code programs,
read-only memory (ROM) code, or application specific integrated circuit (ASIC)
design information or schematics.
28
ATTACHMENT 3
List of Approved Suppliers to Lucent
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
********************
