Exhibit 10.1.3
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR
THE INFORMATION REPRESENTED BY A DAGGER [+]
HEREIN. THE OMITTED INFORMATION HAS BEEN
SEPARATELY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION.
SERVICES AGREEMENT
SERVICES AGREEMENT, dated September 27th, 1999, between FRANKLIN
ELECTRONIC PUBLISHERS, INCORPORATED, a Pennsylvania corporation ("Franklin"),
and XIRCOM, INC. a California corporation ("Xircom").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated
the date hereof, between Xircom and Franklin (the "Purchase Agreement"),
Franklin has sold certain assets to Xircom; and
WHEREAS, as a condition to the closing of the transactions
contemplated by the Purchase Agreement, Xircom and Franklin are required to
enter into this Services Agreement.
NOW, THEREFORE, Franklin and Xircom hereby agree as follows:
FIRST: Services. Commencing on the date hereof and ending on March
31, 2000 (the "Term"), Franklin shall provide to Xircom the services set forth
on Schedule 1 hereto (the "Services") as and when requested by Xircom upon not
less than one week prior written notice. By separate written notice to Franklin,
Xircom will appoint an official designated representative, who will have sole
authority on behalf of Xircom to request and coordinate Services under this
Agreement. Services shall be performed primarily at Franklin's Burlington, New
Jersey facility. In the event Xircom desires to have Services performed at its
facility in Thousand Oaks, California, Franklin will make personnel available on
a reasonable basis, but not for periods longer than two weeks at a time, upon
reasonable prior request from Xircom. Xircom will be responsible for all
reasonable costs and expenses of travel, meals, transportation, lodging, etc.
associated with performance of Services under this Agreement at Xircom's
facility in Thousand Oaks, California.
SECOND: Fees. Xircom shall pay Franklin fees in accordance with the
rates set forth on Schedule 2 hereto. Franklin will invoice Xircom for Services
rendered from time to time, and such fees will be due and payable within 30 days
of Xircom's receipt of invoice.
THIRD: Independent Contractor. All Services performed by Franklin
shall be performed by Franklin as an independent contractor. Notwithstanding
anything herein to the contrary, no partnership or joint venture has been, or is
intended to be, created in or by this Services Agreement, as a result of the
provision of the Services or otherwise.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE
INFORMATION REPRESENTED BY A DAGGER [+] HEREIN. THE
OMITTED INFORMATION HAS BEEN SEPARATELY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
FOURTH: Software Developer's Kit; Completed Products. Within 30 days
of completion thereof, Xircom shall, at Xircom's sole expense, provide to
Franklin [+].
FIFTH: Intellectual Property. All intellectual property resulting
from the Services shall be owned by Xircom. Subject to the limitations and
conditions provided below in this Article FIFTH, Xircom hereby grants back to
Franklin a limited, perpetual, worldwide, non-exclusive, royalty-free license to
make, use, sell and copy any such intellectual property solely in connection
with and for use in products manufactured or sold by Franklin or its successors
and assigns. Other than traditional end user licenses granted to purchasers of
Franklin products, Franklin shall have no right to grant sublicenses to any
intellectual property licensed to Franklin hereunder by Xircom. Any sale,
license or distribution by Franklin of any such intellectual property shall be
accompanied by appropriate usage restrictions which prohibit decompiling,
reverse engineering, or other comparable attempts to secure access to
intellectual property not otherwise provided by right to the end user. Any
independent sale, license or distribution by Franklin of any such intellectual
property shall require that the recipient use such intellectual property solely
with and in products manufactured and sold by Franklin. Nothing contained in
this Article FIFTH shall in any way negate, supersede, limit, or be interpreted
as overriding any restrictions on competition imposed on Franklin under the
Purchase Agreement.
SIXTH: Miscellaneous.
6.1. Assignment. This Services Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Services Agreement and the rights, licenses and
obligations of the parties hereto may not be assigned without the prior written
consent of the other party hereto.
6.2. No Modification Except in Writing. This Services Agreement may
not be changed, modified or amended except by a writing signed by the party to
be charged and then only to the extent therein set forth.
6.3. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
(i) when delivered personally against written receipt therefor or by private
courier, (ii) when actually delivered by registered or certified United States
mail, return receipt requested, or (iii) when received by telecopy (provided
that it is confirmed by a means specified in clause (i) or (ii)), addressed as
follows:
If to Franklin, to:
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Franklin Electronic Publishers, Incorporated
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Xircom, to:
Xircom, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Nordman, Cormany, Hair & Compton
0000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other address as such party may indicate by a notice
delivered to the other parties.
6.4. Governing Law. This Services Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within said State, without giving
effect to the conflict of laws principles thereof.
6.5. Severability. If any provision of this Services Agreement or
the application of any provision hereof to any person or circumstances is held
invalid, the remainder of this Services Agreement and the application of such
provision to other persons or circumstances shall
3
not be affected unless the provision held invalid shall substantially impair the
benefits of the remaining portions of this Services Agreement.
6.6. Entire Agreement. This Services Agreement, including the
Schedules hereto, sets forth the entire agreement and understanding between
Franklin and Xircom as to the subject matter hereof, and, except as provided in
Article FIFTH as regards the noncompetition provisions of the Purchase
Agreement, merges and supersedes all prior discussions, agreements and
understandings of every kind and nature among them regarding the providing of
Services by Franklin to Xircom. Neither Franklin nor Xircom shall be bound by
any condition, definition, warranty or representation other than as expressly
provided for in this Services Agreement.
6.7. Captions. The captions appearing in this Services Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope and intent of this Services Agreement or any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Services
Agreement as of the day and year first above written.
XIRCOM, INC. FRANKLIN ELECTRONIC PUBLISHERS,
INCORPORATED
By: X. Xxxxxxxx By: Xxxxxxx X. Xxxxxx
----------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Secretary and General Counsel Title: Executive Vice President
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE
INFORMATION REPRESENTED BY A DAGGER [+] HEREIN. THE
OMITTED INFORMATION HAS BEEN SEPARATELY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE 1
Services Agreement
1. Software Services: To assist Xircom's employees to assimilate the
architecture of the software described in Schedule 1.2(a) of the Purchase
Agreement or the Franklin Software as described in Exhibit A of the
License Agreement attached as an exhibit to the Purchase Agreement and to
assist Xircom's employees to [+].
Maximum* man hours per week: 40/week for first 3 months of the Term,
20/week thereafter
2. [+].
Maximum* man hours per week: 40/week for first 3 months of the Term,
20/week thereafter
3. Mechanical Design Services: To assist Xircom's employees to[+].
Maximum* man hours per week: 20/week for first 3 months of the Term,
10/week thereafter
* exclusive of travel or transit time associated with Services performed
at Xircom's facility in Thousand Oaks, California
SCHEDULE 2
Fees
1. Software Services: $200.00/hour
2. [+]: $200.00/hour
3. Mechanical Design Services: $200.00/hour
