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Exhibit 10(g)
SOFTWARE LICENSE AGREEMENT
between
GULTON INDUSTRIES, INC.
and
XXXX XX INDUSTRIES, INC.
Dated as of February 10, 1997
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SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") is made and
entered into as of this 10th day of February, 1997, by and between Xxxx XX
Industries, Inc., a Delaware corporation ("Xxxx XX") and Gulton Industries,
Inc., a Delaware corporation ("Gulton").
W I T N E S S E T H:
WHEREAS, Xxxx XX, Xxxx XX PLC, a United Kingdom corporation, Gulton
and Greenwich Street Audio, LLC, a Delaware limited liability company have
entered into a Purchase Agreement, dated as of December 12, 1996, and amended as
of December 18, 1996 (the "Purchase Agreement"), providing, among other things,
for the execution and delivery of this Agreement (capitalized terms used herein
but not defined shall have the meanings set forth in the Purchase Agreement);
and
WHEREAS, Xxxx XX, by itself and through its Affiliates (as defined
below), including the Audio Products Group Companies, has developed and owns
certain rights in the Licensed Software (as defined below) used by the Audio
Products Group; and
WHEREAS, Xxxx XX acknowledges that Gulton and its Affiliates
authored portions of the Licensed Software, that such portions are joint works
within the meaning of 17 U.S.C. Section 101, and that Gulton owns certain rights
therein and thereto by virtue of its authorship;
WHEREAS, Xxxx XX desires to license Gulton and Gulton desires to
obtain throughout the world (the "Territory") for itself and any Affiliate,
including the Audio Products Group Companies, a nonexclusive, royalty-free,
perpetual right and license, subject to the terms and conditions contained
herein, to those portions of the
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Licensed Software not authored by Gulton for use in connection with the Audio
Products Business;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants hereinafter contained, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 "Licensed Software" means the computer programs, as they exist
on the date hereof, and any and all intellectual property rights therein and
thereto in all forms and media, including but not limited to source code, object
code, printed listings of code, copies on magnetic media and any existing
derivative works, data and documentation, algorithms, formulas, flow charts,
logic diagrams, computations, listings, instructions, statements, written
graphics, photographic, optic, electric, magnetic or electromagnetic forms,
developed by Xxxx XX or any Affiliate thereof (other than Gulton), and related
to, used in, held for use in connection with, necessary for the conduct of or
otherwise material to the operations of the Audio Products Group, including but
not limited to the computer programs listed on the attached Schedule A.
1.2 "Affiliate" shall mean, with respect to any person, (i) any
person that directly or indirectly controls, is controlled by or under common
control with, such person, or (ii) any director, officer, partner, member or
employee of such person.
SECTION 2
LICENSE
2.1 License Grant. (a) Subject to the terms and conditions set forth
in this Agreement, Xxxx XX hereby grants to Gulton and Gulton hereby accepts a
nonexclusive,
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perpetual, irrevocable, royalty-free and fully paid-up right and license
throughout the Territory to use, access, reproduce, distribute, display,
compile, modify and prepare derivative works from the Licensed Software, for the
internal use (except as provided herein) of Gulton and its Affiliates (the
"License"); provided, however, that neither Gulton nor Xxxx XX shall have any
rights to derivative works developed after the date hereof by the other party.
Xxxx XX acknowledges that Gulton currently possesses a copy of the source code
for the Licensed Software.
(b) The License granted herein permits Gulton to make any number of
copies of the Licensed Software and use the Licensed Software on any number or
type of processing units (CPUs) at any number of installations throughout the
world, including without limitation data center installations owned and/or
operated by third parties under contract to provide data center services for
Gulton or any of its Affiliates.
2.2 Sublicenses. Gulton may sublicense any and all of the rights to
the Licensed Software granted hereunder to any present or future Affiliates of
Gulton for the internal use of such Affiliate, provided, however, that Gulton
shall remain responsible for all use of the Licensed Software by such
sublicensees.
2.3 Export Controls. From and after the date hereof, the parties
agree that each party shall be responsible for obtaining any export license or
other permission to transfer the Licensed Software to its respective Affiliates
outside of the United States. Each party agrees to indemnify the other party
against any liability to the United States or other government arising out of
such export.
2.4 Third Party License. Gulton acknowledges that nothing herein
shall be construed as a license to any operating software owned by IBM for the
AS/400, that Gulton
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will need to obtain a separate license from IBM to use such operating software
and that Xxxx XX has no obligation to Gulton to assist it in obtaining such a
license from IBM.
SECTION 3
USER RESTRICTIONS
3.1 No Third Party Use. Except as otherwise provided in this
Agreement (including but not limited to Section 2.2 hereunder), Gulton agrees
not to disclose, publish, release, or transfer to any other person or entity any
Licensed Software without Xxxx IV's prior written consent (except to its
Affiliates and to third party contractors who agree in writing to hold the
Licensed Software in confidence).
3.2 Use of Copyright Notice. Gulton agrees to reproduce and include
the copyright notice and any other legend now existing on any copies of the
Licensed Software. Gulton may add its own proprietary notices to the Licensed
Software with respect to those portions authored by Gulton and its Affiliates.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 Ownership of Licensed Software. Xxxx XX represents and warrants
that it owns, individually or jointly, all right, title and interest in and to
the Licensed Software, that no consents are necessary in respect of the Licensed
Software, or the source code therefor, in connection with the licensing to
Gulton of the Licensed Software pursuant to this Agreement and that it has the
right and authority to grant to Gulton the rights granted to the Licensed
Software in accordance with this Agreement free and clear of all liens and
encumbrances.
4.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
(i) XXXX XX DISCLAIMS ANY AND
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ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED,
MADE WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND
(ii) XXXX XX SHALL NOT BE LIABLE WITH RESPECT TO THE LICENSED SOFTWARE, WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER ANY
WARRANTY OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CON SEQUENTIAL
LOSS OR DAMAGE WHATSOEVER, OR FOR LOSS OR DAMAGE TO THE FACILITIES, LOSS OF USE
OR LOSS OF OR DAMAGE TO EQUIPMENT, COST OF CAPITAL, LOSS OF PROFITS OR REVENUES
OR THE LOSS OF USE THEREOF.
SECTION 5
MISCELLANEOUS
5.1 Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to its conflicts of law
doctrine.
5.2 Entire Agreement. This Agreement, including the Schedule hereto,
sets forth the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, between the parties with respect to the
subject matter hereof.
5.3 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of the parties hereto.
5.4 No Duty to Account. Each party hereby agrees to waive for itself
and its Affiliates any obligation that the other party or its Affiliates account
for any profits arising from any joint works created by the parties hereto or
any of their respective Affiliates.
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5.5 Severability. The invalidity, illegality or unenforceability of
any provision, term, or agreement contained in or made a part of this Agreement
in a particular jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of the provision, term or agreement at
issue in any other jurisdiction, and the parties shall negotiate in good faith
to replace the invalid, illegal or unenforceable provision, term or agreement
with a valid, legal and enforceable provision in such jurisdiction that has the
effect nearest to that of the provision, term, or agreement being replaced.
5.6 Relationship of the Parties. The parties are independent
contractors with respect to each other and nothing herein shall be construed to
create an association, partnership, joint venture, employer-employee or agency
relationship between them.
5.7 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the parties hereto without the prior written consent of the other party, except
that, either party and their respective permitted assigns may assign its rights
and obligations under this Agreement to (a) any buyer of the operations and
businesses utilizing the Licensed Software, (b) any Affiliate or subsidiary or
(c) any lender to Gulton or any subsidiary or affiliate thereof as security for
obligations to such lender, provided, that no assignment to any such lender
shall in any way affect Gulton's obligations or liabilities under this
Agreement.
5.8 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
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5.9 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
5.10 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given: (a) if delivered by hand, when delivered; (b) if
sent by telex, telecopy or cable (and confirmed by telephone) or by overnight
delivery, when received, or (c) if sent by mail, five days after being mailed,
certified or registered mail, with postage prepaid:
(a) If to Gulton, to:
Gulton Industries, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Telecopy: (000) 000-0000
or to such other person or address as Gulton shall furnish to Xxxx XX in
writing.
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(b) If to Xxxx XX, to:
Xxxx XX Industries, Inc.
One Towne Centre
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telecopy:
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
or to such other person or address as Xxxx XX shall furnish to Gulton in
writing.
All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (w) if by personal
delivery, on the day after such delivery, (x) if by certified or registered
mail, on the seventh business day after the mailing thereof, (y) if by next-day
or overnight mail or delivery, on the day delivered, (z) if by telecopy or
telegram, on the next day following the day on which such telecopy or telegram
was sent, provided that a copy is also sent by certified or registered mail.
5.11 Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Agreement.
5.12 Waiver of Compliance. Any failure of either party thereto to
comply with any obligation, covenant, agreement or condition herein may be
expressly waived in
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writing by the President or a Vice President of such party, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
5.13 Further Assurances. Each of the parties hereto agrees to take
all further actions and to execute and deliver, in the name and on behalf of
Gulton or Xxxx XX, as the case may be, all such documents and do, in the name
and on behalf of Gulton or Xxxx XX, as the case may be, all such other acts and
things necessary, desirable or proper to vest, perfect or confirm its right,
title or interest, in, to or under any of the rights, privileges, immunities,
powers, purposes, franchises, properties or assets of the other party and
otherwise to carry out the purposes of this Agreement.
5.14 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which, taken together, shall constitute one agreement.
5.15 Construction of this Agreement. In any construction of this
Agreement, the Agreement shall not be construed against any party based upon the
identity of the drafter of the Agreement or any provision of it.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first hereinabove set forth.
XXXX XX INDUSTRIES, INC.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
GULTON INDUSTRIES, INC.
By: /s/ XXXXXXXXX X. VANDEN BEUKEL
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Name: Xxxxxxxxx X. Vanden Beukel
Title: VP & Secretary
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SCHEDULE A
Licensed Software
Xxxx XX Audio in the United States has two IBM AS/400's located in
Buchanan, Michigan and Oklahoma City, Oklahoma. These two AS/400's run
internally developed "homegrown" software which is written in RPG III. Source
code is maintained on each AS/400 for the applications running on that AS/400
and is maintained by the Information Systems staff based in Buchanan, Michigan
and Oklahoma City, Oklahoma. Below is a list of the applications running at each
location:
Buchanan
Manufacturing: MRP/Master Schedule
Inventory Control
Xxxx of Materials
Routings/Shop Scheduling
Work Orders
Purchase Orders
Work on Progress
Forecasting
Physical Inventory
Cycle Counting
Scrap Reporting
Finance: Accounts Payable
Accounts Receivable
General Ledger
Budgets
Fixed Assets
Payroll
Labor/Absence Reporting
Costing
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Marketing: Order Processing
Invoicing Distribution
Sales
Pricing
Finished Goods Reporting
Miscellaneous: Repairs
Service Awards
Mailing System
Menu System
Benefits Data Collection
Communication/Passthru Routines
Oklahoma City
Manufacturing: MRP/Master Schedule
Inventory Control
Xxxx of Materials
Routings
Work Orders
Purchase Orders
Work on Progress
Forecasting
Physical Inventory
Cycle Counting
Scrap Reporting
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