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EXHIBIT 10.2
TECHNOLOGY FRAMEWORK AGREEMENT
THIS TECHNOLOGY FRAMEWORK AGREEMENT (this "AGREEMENT") is effective as
of the "CLOSING DATE" referred to in the Purchase Agreement (as defined below)
(the "EFFECTIVE DATE"), and is by and between Fujitsu Limited, a Japanese
corporation ("FUJITSU"), XXXX Technology, Inc., a Delaware corporation ("XXXX"),
and BridgePoint Technical Manufacturing Corporation, a Texas corporation
("BRIDGEPOINT").
W I T N E S S E T H:
WHEREAS, BridgePoint will acquire the manufacturing (including failure
analysis and reliability testing), sale, distribution and customer service
business of Xxxx (as more specifically set forth in the Purchase Agreement) as
of the closing of the Asset Purchase Agreement, dated as of July 23, 1998 (the
"PURCHASE AGREEMENT"), between Xxxx and BridgePoint; and
WHEREAS, Xxxx has transferred certain of its intellectual property to
Fujitsu under that certain Asset Purchase and License Agreement, dated as of
July 10, 1998 (the "FJ PURCHASE AGREEMENT"), between Fujitsu and Xxxx; and
WHEREAS, Xxxx desires to transfer to BridgePoint its Manufacturing
Technology (as defined below) and license to BridgePoint the Xxxx Designs (as
defined below) and other Intellectual Property (as defined below) necessary for
the Business, and Fujitsu desires to license to BridgePoint certain Intellectual
Property for the Business, each on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
mutually agree as follows:
ARTICLE I
DEFINITIONS
The following terms as used in this Agreement have the meanings set
forth in this Article:
1.01 The term "AFFILIATE" shall have the meaning set forth in the
Purchase Agreement.
1.02 The term "BRIDGEPOINT IMPROVEMENT" shall mean any Intellectual
Property, including, without limitation, any design, fix, formula, process,
trade secret, know-how, software, test programs, technical data or information
relating to the Xxxx Technology, Xxxx Designs or the Transferred Products,
acquired or developed by BridgePoint, its Affiliates or agents on or after the
Effective Date.
1.03 The term "BUSINESS" shall have the meaning set forth in the
Purchase Agreement.
1.04 The term "FJ TECHNOLOGY" shall mean all of the Intellectual
Property transferred by Xxxx to Fujitsu pursuant to the FJ Purchase Agreement.
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1.05 The term "INTELLECTUAL PROPERTY" shall have the meaning set forth
in the Purchase Agreement.
1.06 The term "MANUFACTURING TECHNOLOGY" shall mean the designs, fixes,
formulas, processes, trade secrets, know-how, software, test programs, technical
data and information developed by Xxxx (or developed for Xxxx by its agents)
prior to the Effective Date relating to the manufacture, failure analysis and
reliability testing of the Transferred Products, including the generation of
pseudo-random test vectors, synchronized testing and other testing methods
developed and used by Xxxx or its agents, but not including any of the same
relating to the manufacture, failure analysis and reliability testing of Viper
products.
1.07 The term "XXXX DESIGNS" shall mean all layouts, designs,
blueprints, schematics, drawings, CAD-drawings, copyrights, mask works and
documentation (including, without limitation, documentation in "flat-file" or
any other format) developed by Xxxx (or developed for Xxxx by its agents) prior
to the Effective Date relating to the Transferred Products.
1.08 The term "XXXX PATENTS" shall mean all letters patent, foreign and
domestic, covering (in whole or in part) a Transferred Product or the
manufacture thereof, under which and to the extent to which Xxxx has the right,
at any time while this Agreement is in effect, to grant the licenses set forth
in Article II, but not including any of the same relating to the Viper products.
1.09 The term "XXXX IMPROVEMENT" shall mean any Intellectual Property,
including, without limitation, any patent, mask work, design, fix, formula,
process, trade secret or know-how relating to the Xxxx Technology, Xxxx Designs
or the Transferred Products and acquired or developed by Xxxx or its agents on
or after the Effective Date.
1.10 The term "XXXX TRADE SECRETS" shall mean all software, test
programs, technical data, information and know-how, which is useful in the
manufacture of Transferred Products and which has heretofore been disclosed by
Xxxx to BridgePoint or which may hereinafter be disclosed by Xxxx to BridgePoint
at any time while this Agreement is in effect, and is owned by Xxxx. "Xxxx Trade
Secrets" shall not include technology and designs relating exclusively to 64-bit
microprocessor technology.
1.11 The term "XXXX TECHNOLOGY" shall mean the Manufacturing
Technology, Xxxx Patents, Xxxx Improvements and Xxxx Trade Secrets, but
excluding the Xxxx Designs and the FJ Technology.
1.12 The term "TRANSFERRED PRODUCTS" shall mean the 32-bit
hyperSPARC(TM) families of microprocessors and the hyperSTATION(TM) and
SPARCplug(TM) families of 32-bit systems and products manufactured (including
failure analysis and reliability testing), sold, distributed or serviced by Xxxx
prior to the Effective Date, and any products which may be subsequently added
thereto by written agreement between Xxxx and BridgePoint with the written
consent of Fujitsu, but excluding any products developed by XXXX Semiconductors
(Israel) Ltd., an Israeli corporation ("RIL"), including, without limitation,
the Core Products (as defined below).
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ARTICLE II
XXXX ASSIGNMENT AND GRANT OF LICENSES TO BRIDGEPOINT
2.01 Xxxx hereby transfers, assigns and conveys to BridgePoint (i) all
of its right, title and interest to all tangible or intangible embodiments of
the Transferred Products, and the exclusive right to manufacture, sell,
distribute, market, repair and maintain the Transferred Products, and (ii) all
of its right, title and interest to all Xxxx Technology pertaining to the
manufacture (including failure analysis and reliability testing), sale,
distribution, marketing, repair and maintenance (but not the design) of the
Transferred Products, including the Manufacturing Technology.
2.02 Xxxx hereby grants to BridgePoint and its Affiliates an exclusive,
perpetual, irrevocable, paid-up, royalty-free, world-wide, transferrable license
to all Xxxx Designs and any Xxxx Technology not conveyed to BridgePoint under
the preceding Section 2.01, in order to manufacture, sell, distribute, market,
repair and maintain the Transferred Products throughout the world.
2.03 Xxxx hereby grants to BridgePoint and its Affiliates a
non-exclusive, perpetual, irrevocable, paid-up, royalty-free license under the
Xxxx Designs to use, modify and create derivative works from the Xxxx Designs
for the exercise of the rights transferred and granted in Sections 2.01 and 2.02
above.
2.04 Xxxx hereby grants to BridgePoint the right to sub-license to any
customer, consultant, agent or contractor of BridgePoint the right to use the
Xxxx Technology to the extent required to manufacture, sell, distribute, market,
repair and maintain the Transferred Products on behalf of BridgePoint or its
Affiliates, or to use the Transferred Products for their intended purposes.
ARTICLE III
EDG TECHNOLOGY
3.01 Without prejudice to any royalties payable pursuant to the CM50A
License (as defined below) or any future or successor agreements between
BridgePoint and Fujitsu, Fujitsu hereby grants to BridgePoint a non-exclusive,
irrevocable, paid-up, royalty-free, world-wide license to use the "FJ Technical
Information" described in the undated, unsigned Wafer Manufacturing and Purchase
Agreement (the "WAFER AGREEMENT") between Fujitsu and Xxxx, as described in
Exhibit C to the Wafer Agreement and attached hereto for the manufacture, sale,
distribution, marketing, repair and maintenance of the Transferred Products by
BridgePoint for so long as the Wafer Agreement remains in effect. The license
granted pursuant to this Section 3.01 shall not be assignable or otherwise
transferrable by BridgePoint without the prior written consent of Fujitsu.
3.02 The layouts, designs, blueprints, schematics, drawings,
CAD-drawings and documentation regarding the FJ Technical Information will be
made available to BridgePoint by Fujitsu as soon as is reasonably practicable
after the reasonable written request (including a reasonable explanation of the
circumstances and required information) of BridgePoint. BridgePoint agrees to
return to Fujitsu any and all of the foregoing as soon as is reasonably
practicable after the license granted by Fujitsu to BridgePoint under Section
3.01 terminates in accordance with its terms.
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3.03 For the avoidance of doubt, none of the foregoing shall be deemed
to grant any rights to BridgePoint for the manufacture, sale, distribution,
marketing, repair and/or maintenance of products designed or developed by RIL,
including, without limitation, DANlite 1 and DANlite 2 ("CORE PRODUCTS").
ARTICLE IV
TERMINATION AGREEMENT TECHNOLOGY
4.01 Fujitsu hereby agrees that each of the agreements described in the
attached Exhibit A, which to Fujitsu's knowledge comprise all of the
"Agreements" under the Termination Agreement, dated as of August __, 1998 (the
"TERMINATION AGREEMENT"), between Fujitsu and Xxxx, under which Fujitsu has
provided Intellectual Property to Xxxx that relates to the Transferred Products
(the "SURVIVING AGREEMENTS") shall not be terminated pursuant to the Termination
Agreement and shall be maintained in full force and effect for the benefit of
BridgePoint; provided, however, that the continued effectiveness of the CM50A +
SRAM Cell License Agreement, dated as of September 20, 1996 (the "CM50A
LICENSE"), between Fujitsu and Xxxx (which is set forth on Exhibit A) is subject
to the execution and delivery by Fujitsu and BridgePoint of a mutually
satisfactory agreement regarding the supply by Fujitsu to BridgePoint of
RT-638A.X and the agreement of BridgePoint to amend Section 8.2 of the CM50A
License by inserting the words "does not warrant" in lieu of the word "warrants"
in the first line thereof. In addition, Fujitsu hereby consents to the
assignment of all rights under the Surviving Agreements from Xxxx to BridgePoint
and the assumption on the Effective Date by BridgePoint from Xxxx of all duties
and obligations of Xxxx under the Surviving Agreements, subject to (a) third
party consents being obtained, if required, by BridgePoint and (b) the
designation by Xxxx and BridgePoint of all of the Surviving Agreements as
Assumed Contracts (as defined in the Purchase Agreement) and the delivery to
Fujitsu of the fully executed Assumption Agreement (as defined in the Purchase
Agreement).
4.02 Fujitsu has delivered to BridgePoint true and complete copies of
all Surviving Agreements. In addition, at BridgePoint's request and expense, and
with respect to specific information which is subject to the Surviving
Agreements, Fujitsu shall use reasonable efforts to provide a replacement set of
any materials heretofore provided by Fujitsu to Xxxx under the Surviving
Agreements that have been deleted or destroyed by Xxxx prior to the date hereof.
ARTICLE V
ACQUIRED TECHNOLOGY
5.01 Fujitsu hereby grants to BridgePoint an exclusive, irrevocable
(subject only to Section 5.03), paid-up, royalty-free, world-wide license under
the Intellectual Property applicable to the "Assets" (as defined in the FJ
Purchase Agreement) set forth in roman numerals II and III of Exhibit A attached
to the FJ Purchase Agreement, including, without limitation, any Manufacturing
Technology included therein (the "ACQUIRED TECHNOLOGY") to make, use, sell,
import and export the Colorado 4 RT 630 CPU and the modules listed under roman
numeral III of such Exhibit A. Fujitsu agrees that such license is exclusive as
to Fujitsu and all other persons, such that Fujitsu will neither use the
Acquired Technology to manufacture the above products nor allow others to do so.
BridgePoint agrees that such license shall not be deemed to preclude Fujitsu or
its Affiliates from developing, designing, manufacturing, selling, distributing,
marketing and/or importing any other products, including, without limitation,
any Core Product.
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5.02 Fujitsu further hereby grants to BridgePoint a limited,
non-exclusive, irrevocable (subject only to Section 5.03), paid-up,
royalty-free, world-wide license (i) under the Acquired Technology, including,
without limitation, any Manufacturing Technology included therein, to modify and
create derivative works of the Transferred Products to meet customer
requirements for the use of the Transferred Products, and (ii) to use the
patents transferred to Fujitsu pursuant to the FJ Purchase Agreement solely for
the purpose of, and to the extent necessary to, manufacture (including failure
analysis and reliability testing), repair and maintain the Transferred Products.
BridgePoint hereby grants to Fujitsu and its Affiliates a non-exclusive,
irrevocable (subject only to Section 5.03), paid-up, royalty-free, world-wide
license to use, modify and create derivative works from any of the derivative
works created by BridgePoint under the other licenses set forth in this Section
5.02.
5.03 The licenses set forth in Sections 5.01, 5.02 and 5.05 shall not
be transferrable or sublicensable without the written consent of the Licensor;
provided, that BridgePoint shall have the limited ability to sublicense to any
customer, consultant, agent or contractor of BridgePoint the right to use such
licenses, which with respect to the licenses set forth in Sections 5.01 and 5.02
shall be solely to the extent necessary to, and for the purpose of, manufacture,
sell, distribute, market, repair and maintain the Transferred Products on behalf
of BridgePoint, or, in the case of customers, to use the Transferred Products
for their intended purposes; provided, that BridgePoint may transfer such
licenses in connection with an assignment of this Agreement by BridgePoint to a
successor or assignee of all, or substantially all, of BridgePoint's business
and assets relating to the Transferred Products pursuant to Section 9.14. Any
attempted assignment of licenses in violation of this Section 5.03 without the
licensor's prior written consent shall be null and void and shall constitute a
material breach of this Agreement for which there will be no cure period and,
upon which such licenses shall terminate; provided, however, that
notwithstanding such termination such licenses shall continue in effect solely
to the extent necessary to permit the party making the attempted assignment to
provide ongoing maintenance and support of Transferred Products sold and
delivered to customers prior to the date of such attempted assignment.
5.04 After the Effective Date, and as promptly as is practicable after
BridgePoint's reasonable request therefor and at BridgePoint's expense, Fujitsu
shall make available to BridgePoint copies of any materials provided by Xxxx to
Fujitsu under the FJ Purchase Agreement with respect to the Acquired Technology
that has not been made available to BridgePoint by Xxxx or Fujitsu.
5.05 Fujitsu hereby grants to BridgePoint a non-exclusive, perpetual,
irrevocable (subject only to Section 5.03), paid-up, royalty-free, world-wide
license to the Manufacturing Technology licensed above, if any, to use, modify
and create derivative works from such Manufacturing Technology. Any such
derivative works created by BridgePoint shall be the sole and exclusive property
of BridgePoint; provided, that BridgePoint hereby grants to Fujitsu and its
Affiliates a non-exclusive, perpetual, irrevocable (subject only to Section
5.03), paid-up, royalty-free, world-wide license to use, modify and create
derivative works from any of the derivative works created by BridgePoint under
the other licenses set forth in this Section 5.05.
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ARTICLE VI
BANKRUPTCY PROVISIONS
6.01 All licenses and other rights granted under or pursuant to this
Agreement by Xxxx, Fujitsu or BridgePoint are, and shall otherwise be deemed to
be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, or replacement
provisions thereof (the "CODE"), licenses of rights to "intellectual property"
as defined under Section 101 of the Code. Xxxx, Fujitsu and BridgePoint agree
that the licensee or holder of such rights under this Agreement shall retain and
may fully exercise all of its rights and elections under the Code. Xxxx, Fujitsu
and BridgePoint further agree that, in the event of the commencement of a
bankruptcy proceeding by or against any such party under the Code, the other
party shall be entitled to a complete duplicate of (or complete access to, as
appropriate) all embodiments of such intellectual property, and the same, if not
already in its possession, shall be promptly delivered to such other party upon
its written request, which shall be in addition to all other rights under this
Agreement, provided that such intellectual property shall be used by such party
only for the purposes otherwise contemplated by this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Each party hereto represents and warrants that (i) it has the full
power and authority to enter into this Agreement and to perform its obligations
as contemplated hereby, (ii) neither the execution and delivery, nor the
performance of this Agreement is or will violate, conflict with or constitute a
default under any agreement to which such party is a party or by which it or any
of its property is bound, and (iii) upon execution and delivery, this Agreement
will constitute the valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditor's rights generally and subject to general principles of equity
(regardless of whether reinforcement is considered in a proceeding at law or at
equity).
7.02 Xxxx hereby represents and warrants to BridgePoint that the
transfers and licenses granted to BridgePoint pursuant to Articles II and V
herein, the uses of the Intellectual Property contemplated hereby and
BridgePoint's sale and manufacture of the Transferred Products under this
Agreement do not, and will continue not to, infringe, or constitute an
infringement or misappropriation of, the Intellectual Property rights of any
third party (subject to the exceptions set forth in the Purchase Agreement).
Fujitsu hereby represents and warrants to BridgePoint that (i) each
representation and warranty made by Fujitsu in the Wafer Agreement, to the
extent such representation or warranty applies to the Intellectual Property
licensed to BridgePoint pursuant to Article III hereof, is true and correct as
of the date hereof, and (ii) as of the date hereof, Fujitsu has not received
notice from any third party of any infringement of any patent, copyright or
other proprietary rights of a third party in connection with any Intellectual
Property to be provided by Fujitsu to BridgePoint under the Surviving
Agreements, except for notice of a letter, dated January 23, 1998, from the law
offices of Xxxxxx X. Xxxxxx to Xxxx which alleged, among other things, that
Xxxx' operation of the Business infringes on certain issued patents and pending
patent applications filed by Xxxxxx Xxxxxxxx, which are owned by the Lemelson
Medical, Education & Research Foundation Limited Partnership, and Fujitsu agrees
to promptly inform BridgePoint if Fujitsu receives written notice of any such
infringement.
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7.03 THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE
IN LIEU OF ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS
(EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED
PRODUCTS OR LICENSED INTELLECTUAL PROPERTY, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; PROVIDED, HOWEVER, THAT
NOTHING IN THIS AGREEMENT SHALL OPERATE TO WAIVE, NULLIFY OR MODIFY THE
OBLIGATIONS SET FORTH IN THE ASSET PURCHASE AGREEMENT BETWEEN XXXX AND
BRIDGEPOINT.
7.04 Except as set forth on Schedule 3.1(i) to the Purchase Agreement,
all licenses of Intellectual Property of Xxxx are, to the actual knowledge of
Xxxx (including the actual knowledge of Xxxx' officers, directors and executive
officers, after due inquiry of their direct subordinates and Xxxx Xxxxxx, Xxx
XxXxxxx and Xxxxxx Xxxxx), valid and uncontested, and Xxxx has received no
notice of infringements or unlawful use of such Intellectual Property in
connection with the operations of the Business. Notwithstanding any other
provision of this Agreement, BridgePoint's sole and exclusive remedy against
Xxxx from and after the closing of the Purchase Agreement for any breach by Xxxx
of any representation, warranty or covenant contained in this Agreement shall be
indemnification by Xxxx pursuant to Section 8.1 of the Purchase Agreement,
including the limitations contained in the Purchase Agreement.
ARTICLE VIII
CONTINUING TRANSFER OF XXXX TRADE SECRETS;
OWNERSHIP OF BRIDGEPOINT IMPROVEMENTS
8.01 After the Effective Date, and during the term hereof, and as
promptly as practicable after BridgePoint's request therefor, Xxxx shall use
reasonable continued efforts, consistent with its resources and circumstances,
to make available to BridgePoint such of the Xxxx Trade Secrets as may as yet
not been made available to BridgePoint by Xxxx. The Xxxx Trade Secrets shall be
furnished in such detail as is reasonably necessary or commercially advantageous
for BridgePoint's purposes.
8.02 BridgePoint shall retain all right, title and interest in and to
the BridgePoint Improvements, and may use or transfer such improvements in any
manner it deems fit.
8.03 If at any time BridgePoint believes, or Fujitsu or Xxxx brings to
the attention of BridgePoint, that any Intellectual Property developed or owned
by Xxxx (or licensed or provided by Fujitsu to Xxxx) prior to the Effective Date
is required to allow BridgePoint to manufacture, sell, distribute, market,
repair, maintain, import and export the Transferred Products in the manner in
which the Business has been operated by Xxxx prior to the Effective Date, then
Fujitsu agrees to discuss in good faith with BridgePoint the provision by
Fujitsu to BridgePoint of such necessary Intellectual Property, but without
obligation to reach an agreement.
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ARTICLE IX
MISCELLANEOUS
9.01 After the Effective Date, each party to this Agreement, upon
another party's reasonable request from time to time, shall take such further
actions and execute and deliver such further documents as may be necessary to
effectuate the transactions contemplated by this Agreement.
9.02 Each party to this Agreement shall consult with the other parties
regarding the wording and substance of all press releases, announcements or
other public statements to be made by such party with respect to this Agreement
and the transactions contemplated hereby. The parties further agree to use good
faith to comply with the reasonable requests of the other parties relating to
any such press release, announcement or public statement.
9.03 All discussions relating to this Agreement are confidential
information and are to be disclosed only to employees, representatives or
consultants of a party to this Agreement who have a need to know; provided,
however, that "confidential information" shall not include any information which
(i) at the time of disclosure, is available to the general public; or (ii) at a
later date, becomes available to the general public through no fault of the
receiving party and then only after such later date; or (iii) the receiving
party can demonstrate was known to it prior to disclosure to it by the
disclosing party. No party to this Agreement will disclose to third parties any
other party's confidential information, except to the extent specified in the
prior written consent of such other party or necessary to comply with applicable
law, the order of any court or the order or regulations of any governmental
agency; provided that such party will promptly inform the other such party of
such obligation to disclose and cooperate with such other party in minimizing
the disclosure, including seeking a protective order.
9.04 Any dispute, controversy or claim arising out of or relating to
this Agreement or the subject matter hereof, or the interpretation,
enforceability, validity, performance, breach or termination hereof or thereof,
including, without limitation, this arbitration clause, shall be solely and
finally settled by arbitration in Los Angeles, California, in accordance with
the commercial arbitration rules of the American Arbitration Association, as
modified by the provisions of this Section 9.04. Each party to this Agreement
waives any rights to bring any such dispute, controversy or claim in any other
forum or proceeding, including, without limitation, the International Trade
Commission of the United States or any other administrative or judicial forum.
The arbitration shall be conducted in accordance with such rules by three
arbitrators selected by the parties (if the parties are able to agree within
thirty (30) days) and otherwise selected in accordance with such rules. Each of
the arbitrators appointed shall have at least five (5) years' experience in the
field that is the principal subject matter of the dispute. After soliciting the
views of the parties, the arbitrators shall order such discovery as they may
deem reasonable for a full and fair understanding of the facts and issues raised
in the arbitration. The arbitration, including the proceeding, pleadings and
evidence in connection therewith, shall be maintained as confidential. An award
rendered in connection with the arbitration shall be final and binding on the
parties, and any judgment upon such an award may be entered in any court of
competent jurisdiction. The award shall be in writing and shall provide written
reasons in detail on the award unless the parties agree otherwise. The award
shall also provide for the fees and expenses of the arbitrators and for the
reasonable attorneys' fees and expenses of the prevailing party, as determined
by the arbitrators, all to be borne by the non-prevailing party.
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9.05 This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
9.06 Any failure of BridgePoint, Xxxx or Fujitsu to comply with any
obligation, covenant, agreement, or condition contained herein may be waived
only if set forth in an instrument in writing signed by the party or parties to
be bound thereby, 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 other failure.
9.07 The parties recognize that in the event any party should refuse to
perform under the provisions of this Agreement, monetary damages alone will not
be adequate. Each party shall therefore be entitled, in addition to any other
remedies which may be available, including money damages, to obtain specific
performance of the terms of this Agreement. In the event of any action to
enforce this Agreement specifically, each party hereby waives the defense that
there is an adequate remedy at law.
9.08 If any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any rule of applicable law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated herein are
consummated as originally contemplated to the fullest extent possible.
9.09 This Agreement shall be binding upon and, except as provided
below, inure solely to the benefit of each party hereto and their successors and
assigns, and nothing in this Agreement, except as set forth below, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
9.10 All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to BridgePoint, to:
BridgePoint Technical Manufacturing Corporation
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx L.L.P.
One American Center
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxx, to:
XXXX Technology, Inc.
0000 Xxxxxxx 000 Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. ("Kit") Xxxxxxx III
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Fujitsu, to:
Fujitsu Limited
1-1, Kamikodanaka, 4-chome
Nakahara-ku, Xxxxxxxx-xxx
Xxxxxxxx-xxx, 000-00 Xxxxx
Attn: Xxxxxxxxx Xxxxxxx
Telephone: 000-00-000-000-0000
Facsimile: 011-81-044-754-3786
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with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx, Xxxxxxx-Xx
Xxxxx 000, Xxxxx
Attn: Xxx Xxxxxx
Telephone: 000-00-0-0000-0000
Facsimile: 011-81-3-3214-6512
All notices, requests or instructions given in accordance herewith
shall be deemed given on the date of delivery, if hand delivered, on the date of
receipt, if telecopied, three business days after the date of mailing, if mailed
by registered or certified mail, return receipt requested, and three business
days after the date of sending, if sent by Federal Express or other recognized
overnight courier.
9.11 This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
9.12 This Agreement (which term shall be deemed to include the exhibits
and schedules hereto and the other certificates, documents and instruments
delivered hereunder) constitutes the entire agreement of the parties hereto with
respect to the subject matter specifically addressed herein and supersedes all
prior agreements, letters of intent and understandings, both written and oral,
among the parties with respect to the subject matter specifically addressed
herein; provided, however, that nothing herein shall serve to negate or modify
the Purchase Agreement between Xxxx and BridgePoint.
9.13 BridgePoint understands that Xxxx has entered into a Termination
and License Agreement with XXXX Semiconductor (Israel) Ltd. BridgePoint has been
allowed to review Sections 1(d) and 1(e) of such agreement (and the related
definitions) and BridgePoint agrees that the licenses and retention of
technology specifically set forth in such sections do not constitute a breach of
any of the provisions of this Agreement.
9.14 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
9.15 Neither this Agreement nor any of the rights, interests, or
obligations hereunder shall be assigned by any of the parties hereto, whether by
operation of law or otherwise, without the express written consent of the other
parties (to the extent still in existence), except BridgePoint may assign this
Agreement to the successor or assignee of all, or substantially all, of
BridgePoint's business and assets relating to the Transferred Products. When so
assigned, this Agreement shall be binding upon and inure to the benefit of the
assignee in question.
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IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
as of the Effective Date.
FUJITSU LIMITED
By: /s/ XXXXXXX XXXXXXXX
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Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
XXXX TECHNOLOGY, INC.
By: /s/ XXXXXXX X. XXXXXXX III
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx III
-----------------------------------
Title: Chief Financial Officer
-----------------------------------
BRIDGEPOINT TECHNICAL MANUFACTURING
CORPORATION
By: /s/ XXX X. XXXXX
-----------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: President, Bridgepoint
-----------------------------------
13
EXHIBIT A
SURVIVING AGREEMENTS
1. Non-Disclosure Agreement executed July 1, 1993 between Fujitsu and Xxxx.
2. Contractor Design Agreement dated July 15, 1995 between Puyallup Integrated
Circuit Company, Inc., Xxxx and Fujitsu.
3. CM50A + SRAM Cell License Agreement dated as of September 30, 1996 between
Fujitsu and Xxxx.
A-1
