EXHIBIT 10.2
INTERCOMPANY AGREEMENT
INTERCOMPANY AGREEMENT, dated as of January 1, 1998, by and between
ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation ("EDS"), and
UNIGRAPHICS SOLUTIONS INC., a Delaware corporation ("USI").
WHEREAS, pursuant to the Assignment and Assumption Agreements (as such term
and other capitalized terms used herein without definition are defined in
Section 1.01), EDS has, directly or indirectly, transferred the Transferred
Assets to the USI Entities and the USI Entities have assumed the Assumed
Liabilities; and
WHEREAS, EDS and USI desire to set forth certain agreements with respect to
the Transferred Assets, the Assumed Liabilities and certain other matters;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. General. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Action" shall mean any action, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
"Agreement" shall mean this Intercompany Agreement, dated as of January 1,
1998.
"Assignment and Assumption Agreements" shall mean the agreements listed on
Schedule 1.
"Assumed Liabilities" shall mean any and all Liabilities assumed, whether
directly or indirectly, or agreed to be performed by one or more of the USI
Entities, pursuant to or as a result of any Assignment Agreement, this
Agreement or any Intercompany Agreement.
"Confidential Information" shall mean information subject to a duty of
confidence and a restriction on use on any EDS Entity or any USI Entity under
Article III of this Agreement.
"Dispute" shall mean any dispute, disagreement, claim, or controversy
arising in connection with or relating to this Agreement or any Assignment and
Assumption Agreement, including any claim for indemnification and any
claim regarding bodily or other personal injury or damage to tangible property.
"Dispute Resolution Appendix" shall mean Appendix A to this Agreement,
containing the Dispute Resolution Procedure for, and as an integral part of, the
Agreement.
"Dispute Resolution Procedure" shall mean the procedure or process by which
a Dispute must be resolved (except as otherwise stated in the Agreement) as
described in the Dispute Resolution Appendix.
"Effective Time" shall mean 12:01 A.M., Central Standard Time, on January
1, 1998.
"EDS" shall mean Electronic Data Systems Corporation, a Delaware
corporation, together with its successors and assigns.
"EDS Assets" shall mean all assets, properties and rights owned by any EDS
Entity prior to, at or after the Effective Time. The EDS Assets shall not
include the Transferred Assets or the Retained Assets.
"EDS Business" shall mean all functions and activities related to or
associated with the EDS Assets prior to, at or after the Effective Time.
"EDS Entity" shall mean each of EDS and each corporation or other entity
controlled, directly or indirectly, after the Effective Time by EDS and shall
exclude the USI Entities.
"EDS Indemnitee" shall have the meaning specified therefor in Section 2.02.
"Entity" shall mean either an EDS Entity or a USI Entity.
"Environmental Liabilities" shall mean all Liabilities, unidentified as of
the Effective Time, relating to, arising out of or resulting from any law or
contract or agreement relating to environmental, health or safety matters
(including without limitation all removal, remediation or cleanup costs,
investigatory costs, governmental response costs, natural resources damages,
property damages, personal injury damages, costs of compliance with any
settlement, judgment or other determination of Liability and indemnity,
contribution or similar obligations) and all costs and expenses, interest,
fines, penalties or other monetary sanctions in connection therewith.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Foreign Exchange Rate" shall mean, with respect to any currency other than
United States dollars as of any date of determination, the average of the
opening bid and asked rates on such date at which such currency may be exchanged
for United States dollars as quoted by Citibank, N.A.
"Indemnifying Party" shall have the meaning specified therefor in Section
2.03.
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"Indemnitee" shall have the meaning specified therefor in Section 2.03.
"Indemnity Payment" shall have the meaning specified therefor in Section
2.03.
"Insurance Proceeds" shall mean those monies (a) received by an insured
party from an insurance carrier in respect of a claim or (b) paid by an
insurance carrier on behalf of the insured party in respect of a claim, in
either case net of (i) any applicable amounts that such insured party shall be
obligated to contribute (by means of application of a deductible, payment under
a reimbursement obligation or otherwise) in respect of such claim, provided
that, for purposes of determining any such amounts to be contributed, the
benefits of application of any maximum premium limits, stop-loss aggregates or
other provisions that would have the effect of aggregating deductibles or self-
insured retentions shall be allocated appropriately to reduce the uninsured
retentions of such insured party, and (ii) any related costs paid by such
insured party.
"Intercompany Agreements" shall mean any written agreements between any EDS
Entity and any USI Entity including those set forth on Schedule 2. Intercompany
Agreements shall not include this Agreement or the Assignment and Assumption
Agreements.
"Liabilities" shall mean any and all debts, liabilities, responsibilities
and obligations, including, without limitation, those arising under any law,
rule, regulation, Action, order or consent decree of any governmental entity or
any award of any arbitrator of any kind, and those arising under any contract,
commitment or undertaking.
"Losses" shall mean any and all losses, Liabilities, claims, damages,
payments, costs and expenses, matured or unmatured, absolute or contingent,
accrued or unaccrued, liquidated or unliquidated, known or unknown (including,
without limitation, the costs and expenses of any and all Actions, threatened
Actions, demands, assessments, judgments, settlements and compromises relating
thereto and attorneys' fees and any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened Actions), whether or not resulting from Third Party Claims.
"Parties" shall mean EDS (on its behalf and on behalf of the EDS Entities)
and its successors and assigns as permitted by the Agreement, and USI (on its
behalf and on behalf of the USI Entities) and its successors and assigns as
permitted by the Agreement.
"Person" shall mean an individual, a corporation, limited liability
company, partnership, trust, association, or entity of any kind or nature; or a
governmental authority.
"Retained Assets" shall have the meanings set forth in the Assignment
Agreements referred to in numbered paragraphs 1 and 2 of Schedule 1.
"Tax Sharing Agreement" shall mean that Tax Sharing Agreement, dated as of
January 1, 1998, by and between EDS and USI.
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"Taxes" shall mean (i) all forms of taxation, whenever created or imposed,
and whether of the United States or elsewhere, and whether imposed by local,
municipal, governmental, state, federal or other body, and without limiting the
generality of the foregoing, shall include income, sales, use, ad valorem, gross
receipts, value added, franchise, transfer, recording, withholding, payroll,
employment, excise, occupation, premium or property taxes, and (ii) any amounts
paid by USI under a pro forma return prepared pursuant to the Tax Sharing
Agreement.
"Third Party Claim" shall mean any Action commenced or threatened to be
commenced, and any other claim or demand asserted, against an EDS Indemnitee or
a USI Indemnitee by a Person other than an EDS Entity or USI Entity.
"Transferred Assets" shall mean any and all assets, properties and rights
contributed, granted, conveyed or otherwise transferred to any USI Entity
pursuant to the Assignment and Assumption Agreements.
"Transferred Business" shall mean all functions and activities of that
portion of the business of the EDS Entities prior to or at the Effective Time
which specifically involves the ownership, distribution and maintenance of the
CAD/CAM/CAE software programs known as "Unigraphics," "Information Manager" and
"Parasolid" and the provision of systems integration, consulting and training
services relating exclusively to such software.
"USI" shall mean Unigraphics Solutions Inc., a Delaware corporation,
together with its successors and assigns.
"USI Entity" shall mean each of USI and each corporation or other entity
controlled, directly or indirectly, after the Effective Time, by USI.
"USI Indemnitee" shall have the meaning specified in Section 2.01.
"USI Premises" shall mean those premises listed under such heading on
Schedule 3.
ARTICLE II
INDEMNIFICATION
Section 2.01. Indemnification by EDS. EDS shall indemnify, defend and
hold harmless each USI Entity and its respective directors, officers, employees
and agents and each of the heirs, executors, successors and assigns of any of
the foregoing (the "USI Indemnitees") from and against:
(a) Losses resulting from any breach, default or failure to pay,
perform or otherwise discharge any Liability on the part of any EDS Entity under
this Agreement or any Assignment and Assumption Agreement;
(b) Losses arising from any Third Party Claim against a USI
Indemnitee that asserts a Liability on the part of such USI Indemnitee relating
to, arising out of, or due to, directly or indirectly,
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the EDS Assets or the EDS Business, whether relating to, arising our of, or due
to occurrences or conditions prior to, on, or after the Effective Time;
(c) Losses arising from Environmental Liabilities at any of the
USI Premises, only to the extent that such Environmental Liabilities are
attributable to the EDS Business;
(d) Losses arising from any Third Party Claim against any USI
Indemnitee made by (i) any individual employed in the EDS Business at the time
the Third Party Claim was made or (ii) any former employee in, or retiree from,
the EDS Business who was employed in the EDS Business at the time the Third
Party Claim arose, unless in either case the Third Party Claim arose primarily
from the conduct of any USI Entity or any individual employed in any Transferred
Business at the time that the Third Party Claim arose;
(e) Losses arising from any Third Party Claim against any USI
Indemnitee made by any current or former employee in, or retiree from, the
Transferred Business who was employed in the Transferred Business at the time
the Third Party Claim arose if the Third Party Claim arose primarily from
conduct by any EDS Entity or by any individual employed in any EDS Business at
the time that the Third Party Claim arose; and
(f) Losses (excluding those arising from Environmental
Liabilities, which are addressed in subsection (c) of this Section 2.01) arising
from any Third Party Claim against a USI Indemnitee relating to a personal
injury or property damage in or about the Premises, only to the extent that such
Losses are attributable to the EDS Businesses.
Section 2.02. Indemnification by USI. USI shall indemnify, defend and
hold harmless each EDS Entity and its respective directors, officers, employees
and agents and each of the heirs, executors, successors and assigns of any of
the foregoing (the "EDS Indemnitees") from and against:
(a) Losses resulting from a failure by any USI Entity to pay,
perform or otherwise discharge any Assumed Liability;
(b) Losses resulting from any breach, default or failure to pay,
perform or otherwise discharge any Liability on the part of any USI Entity under
this Agreement or any Assignment and Assumption Agreement;
(c) Losses arising from any Third Party Claim against an EDS
Indemnitee that asserts, explicitly or implicitly, a Liability on the part of
such EDS Indemnitee relating to, arising out of, or due to, directly or
indirectly, any Transferred Assets or Transferred Business whether relating to,
arising our of, or due to occurrences or conditions prior to, on, or after the
Effective Time;
(d) Losses arising from Environmental Liabilities at any of the
USI Premises, only to the extent that such Environmental Liabilities are
attributable to the Transferred Business;
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(e) Losses arising from or in connection with a breach, default or
failure to pay, perform or otherwise discharge any Liability on the part of any
USI Entity under any lease or sublease for any USI Premises;
(f) Losses arising from any Third Party Claim against any EDS
Indemnitee made by (i) any individual employed in the Transferred Business at
the time the Third Party Claim was made or (ii) any former employee in, or
retiree from, the Transferred Business who was employed in the Transferred
Business at the time the Third Party Claim arose, unless in either case the
Third Party Claim arose primarily from conduct by any EDS Entity or by any
individual employed in any EDS Business at the time that the Third Party Claim
arose;
(g) Losses arising from any Third Party Claim against any EDS
Indemnitee made by any current or former employee in, or retiree from, the EDS
Business who was employed in the EDS Business at the time the Third Party Claim
arose if the Third Party Claim arose primarily from conduct by any USI Entity or
by any individual employed in any Transferred Business at the time that the
Third Party Claim arose; and
(h) Losses (excluding those arising from Environmental
Liabilities, which are addressed in subsection (d) of this Section 2.02) arising
from any Third Party Claim against an EDS Indemnitee relating to a personal
injury or property damage in or about the Premises, only to the extent that such
Losses are attributable to the Transferred Business.
Section 2.03. Limitations on Indemnification Obligations.
(a) Insurance Proceeds. The amount which either EDS or USI (an
"Indemnifying Party") is required to pay to any other Person (an "Indemnitee")
pursuant to this Article II shall be reduced (including, without limitation,
retroactively) by any Insurance Proceeds or other amounts actually recovered by
or on behalf of such Indemnitee with respect to the related Loss. All amounts
required to be paid, as so reduced, are hereafter sometimes called "Indemnity
Payments." If any Indemnitee shall have received an Indemnity Payment in respect
of a Loss and shall subsequently actually receive Insurance Proceeds or other
amounts in respect of such Loss, then such Indemnitee shall pay to such
Indemnifying Party a sum equal to the lesser of the amount of such Insurance
Proceeds or other amounts actually received or the amount of such Indemnity
Payment.
(b) After-Tax Nature of Indemnity Payments. Any Indemnity Payment
required to be made under this Agreement shall include any amount necessary to
hold the Indemnitee harmless on an after-tax basis from all Taxes required to be
paid with respect to the receipt of such Indemnity Payment (after taking into
account any reduction in Taxes realized by the Indemnitee as a result of the
Loss giving rise to the Indemnity Payment). In determining the amount necessary
to be added to any Indemnity Payment in order to accomplish the foregoing, EDS
and USI hereto agree (i) to treat all Taxes required to be paid by, and all
reductions in Tax realized by, any Indemnitee as if such Indemnitee were subject
to tax at the highest marginal tax rates applicable to such Indemnitee and (ii)
to treat any Indemnity Payments made under this Agreement as an adjustment to
the assets transferred (directly or indirectly) pursuant to the Assignment and
Assumption Agreements, unless the Indemnitee receives a written opinion,
reasonably satisfactory in form and substance to the Indemnifying Party, of
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a law firm of national recognized standing to the effect that it is not
permissible or is not likely to be permissible to treat such Indemnity Payment
in that manner on a federal, state or local income tax return.
(c) Foreign Currency Adjustments. In the event that an Indemnity
Payment under this Article II shall be denominated in a currency other than
United States dollars, the amount of such payment shall be translated into
United States dollars using the Foreign Exchange Rate for such currency
determined in accordance with the following rules:
(i) with respect to a Loss for which indemnification is sought
under this Article II arising from payment by a financial institution under a
guaranty, comfort letter, letter of credit, foreign exchange contract or similar
instrument, the Foreign Exchange Rate for such currency shall be determined as
of the date on which such financial institution shall have been reimbursed;
(ii) with respect to a Loss for which indemnification is sought
under this Article II that is covered by insurance, the Foreign Exchange Rate
for such currency shall not be calculated as set forth in Article I hereto, but
shall be the foreign exchange rate employed by the insurance company providing
such insurance in settling such Loss with the Indemnitee; and
(iii) with respect to a Loss for which indemnification is sought
under this Article II not covered by clause (i) or (ii) above, the Foreign
Exchange Rate for such currency shall be determined as of the date that notice
of the claim with respect to such Loss is given by the Indemnitee.
Section 2.04. Procedure for Indemnification. The procedure for all
indemnification sought under this Article II shall be as set forth in this
Section 2.04.
(a) If any Indemnitee shall receive notice of a Third Party Claim
with respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Article II, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third Party Claim; provided that the failure of any Indemnitee to give notice
promptly as provided in this Section 2.04 shall not relieve the Indemnifying
Party of its obligations under this Article II, except to the extent that such
Indemnifying Party is actually prejudiced by such failure to give notice and
except that no indemnification may be claimed by an Indemnitee hereunder unless
notice is given not later than two years after such Indemnitee became aware of
any Third Party Claim. Such notice shall describe the Third Party Claim in
reasonable detail and shall indicate the amount (estimated if necessary and to
the extent practicable) of the Loss that has been or may be sustained by such
Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle
or compromise, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Third Party Claim. Within 30 days of the receipt of
notice from an Indemnitee in accordance with Section 2.04(a) (or sooner, if the
nature of such a Third Party Claim so requires), the Indemnifying Party shall
notify such Indemnitee if the Indemnifying Party elects to not defend and to not
seek to settle or compromise such Third Party Claim. An election by an
Indemnifying Party to not defend or to not seek to settle or compromise a Third
Party Claim may be made only in the event of a good faith assertion by the
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Indemnifying Party that a claim was inappropriately tendered under Section 2.01
or 2.02, as the case may be. If an Indemnifying Party fails to elect to not
defend and to not seek to settle or compromise a Third Party Claim, such
Indemnifying Party shall assume the defense of such Third Party Claim and shall
not be liable to such Indemnitee under this Article II for any legal fees and
expenses subsequently incurred by such Indemnitee in connection with the defense
of such claim; provided that such Indemnitee shall have the right to employ
separate counsel to represent such Indemnitee if, in such Indemnitee's
reasonable judgment, a conflict of interest between such Indemnitee and such
Indemnifying Party exists in respect of such claim, and in that event the fees
and expenses of such separate counsel shall be paid by such Indemnifying Party.
If an Indemnifying Party elects to not defend or to not seek to settle or
compromise, such Indemnitee may defend or seek to settle or compromise such
Third Party Claim, and in that event the legal fees and expenses incurred by the
Indemnitee shall be paid by such Indemnifying Party. Notwithstanding the
foregoing, neither an Indemnifying Party nor any Indemnitee may settle or
compromise any Third Party Claim over the objection of the other, provided,
however, that consent to settlement or compromise shall not be unreasonably
withheld. The party seeking to settle or compromise any Third Party Claim shall
provide notice in writing to the other party of such proposal to settle or
compromise, which notice shall specify that the other party has 30 days from
receipt of such notice (or sooner, if the nature of such proposal to settle or
compromise so requires) to notify the other party of its objection, the failure
to object by the party receiving the notice within such time period constituting
a waiver of such right to object. No Indemnifying Party shall consent to entry
of any judgment or enter into any compromise or settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnitee of a release from all liability in respect of such claim or
litigation.
(c) If any Indemnifying Party chooses to defend or to seek to
settle or compromise any Third Party Claim, the Indemnitee shall make available
to such Indemnifying Party any personnel or any books, records, or other
documents within its control or which it otherwise has the ability to make
available that are necessary or appropriate for such defense, settlement or
compromise and shall otherwise cooperate in the defense, settlement or
compromise of such Third Party Claim.
(d) Notwithstanding anything to the contrary in this Section 2.04,
if any offer to settle or compromise is received by an Indemnifying Party with
respect to a Third Party Claim and such Indemnifying Party notifies the related
Indemnitee in writing of such Indemnifying Party's willingness to settle or
compromise such Third Party Claim on the basis set forth in such notice and such
Indemnitee declines to accept such settlement or compromise, such Indemnitee may
continue to contest such Third Party Claim free of any participation by such
Indemnifying Party, at such Indemnitee's sole expense. In such event, the
obligation of such Indemnifying Party to such Indemnitee with respect to such
Third Party Claim shall be equal to the lesser of (i) the amount of the offer of
settlement or compromise which such Indemnitee declined to accept plus the legal
fees and expenses of such Indemnitee prior to the date such Indemnifying Party
notifies such Indemnitee of the offer to settle or compromise and (ii) the
actual out-of-pocket amount such Indemnitee is obligated to pay as a result of
such Indemnitee's continuing to contest such Third Party Claim. An Indemnifying
Party shall be entitled to recover (by set-off or otherwise) from any Indemnitee
any additional legal fees and expenses incurred by such Indemnifying Party as a
result of such Indemnitee's decision to continue to contest such Third Party
Claim.
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(e) Any claim on account of any Loss for which indemnification is
sought under this Article II which does not result from a Third Party Claim
shall be asserted by written notice by the Indemnitee to the Indemnifying Party.
Such Indemnifying Party shall have a period of 30 days after the receipt of such
notice within which to respond thereto. If such Indemnifying Party does not
respond within such 30-day period or rejects such a claim in whole or in part,
the Indemnitee shall be free to pursue remedies through the Dispute Resolution
Procedure.
(f) If the amount of any Loss for which indemnification is sought
under this Article II shall, at any time subsequent to payment pursuant to this
Article II, be reduced by recovery, settlement or otherwise (excluding insurance
maintained separately by the Indemnitee, the treatment of which shall be
governed by Section 2.03(a)), the amount of such reduction, less any legal fees
and expenses incurred in connection therewith, shall promptly be repaid by the
Indemnitee to the relevant Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to or for the
benefit of any Indemnitee in connection with a Loss resulting from any Third
Party Claim, such Indemnifying Party shall, to the extent of any such Loss, be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or claim
relating to any Third Party Claim against any claimant or plaintiff asserting
such Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying
Party in a reasonable manner, and at the cost and expense of such Indemnifying
Party, in prosecuting any subrogated right or claim.
(i) As a condition precedent to the assertion by any Indemnitee
that is not a party to this Agreement of any claim for indemnification from an
Indemnifying Party under this Article II, such Indemnitee shall furnish the
Indemnifying Party with a written undertaking to be bound by all of the terms
and provisions applicable to an Indemnitee under this Article II.
Section 2.05. Remedies Cumulative. The remedies provided in this Article
II shall be cumulative and shall not preclude assertion by any Indemnitee of any
other rights or the seeking of any and all other remedies against any
Indemnifying Party; provided, however, that all remedies sought or asserted
under this Agreement by an Indemnitee against an Indemnifying Party with respect
to any Loss for which indemnification is sought under this Article II shall be
(i) limited by and subject to the provisions of this Article II, and (ii)
precluded where such remedy relates to a claim (x) which also arises under any
Intercompany Agreement, or (y) for which indemnification may be sought under any
Intercompany Agreement.
Section 2.06. Survival of Indemnities. The obligations of EDS and USI and
their respective Indemnitees under this Article II shall survive (a) the sale or
other transfer by either EDS or USI of any assets or businesses or the
assumption by any third party of any Liabilities with respect to any Loss
related to such assets, businesses or Liabilities, and (b) any termination of
this Agreement.
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ARTICLE III
CONFIDENTIALITY
Section 3.01. Generally. (a) Each of EDS and USI on behalf of itself and
each of its respective Entities, agrees to hold, and to cause its respective
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives to hold, in strict confidence, all Confidential Information
concerning the other (or its Entities) that is (i) in its possession immediately
after the Effective Time or (ii) is furnished by each other, as the case may be,
or its respective directors, officers, employees, agents, accountants, counsel
and other advisors or representatives at any time pursuant to this Agreement,
any Assignment and Assumption Agreement, or any ongoing commercial relationship
between the Parties commencing prior to the Effective Time. Each of EDS and USI
on behalf of itself and each of its respective Entities agrees that it shall not
use any such Confidential Information other than for such purposes as shall be
expressly permitted under this Agreement, or any Assignment and Assumption
Agreement, or any ongoing commercial relationship between the Parties commencing
prior to the Effective Time.
(b) In addition, the following information is Confidential
Information, whether acquired either by any EDS Entity or any USI Entity under
or in connection with this Agreement, any Assignment and Assumption Agreement,
or any ongoing commercial relationship between the Parties commencing prior to
the Effective Time:
(i) Information relating to the other Party's business, customers,
financial condition, performance, or operations that the other Party treats as
confidential or proprietary.
(ii) The terms and conditions of this Agreement, any Assignment and
Assumption Agreement or any ongoing commercial relationship between the Parties
commencing prior to the Effective Time.
(iii) Information concerning any breach under, or any Dispute
regarding, this Agreement, any Assignment and Assumption Agreement, or any
ongoing commercial relationship between the Parties commencing prior to the
Effective Time.
(iv) Information that is the Confidential Information of a third
party and disclosed to a Party subject to an obligation of confidentiality.
(v) Any other information, whether in a tangible medium or oral
and whether proprietary to the other Party or not, that is marked or clearly
identified by the other Party as confidential or proprietary.
(vi) The other Party's trade secrets.
(vii) The conduct, decisions, documents, and negotiations as part
of, and the status of, any proceedings under the Dispute Resolution Procedure.
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Section 3.02. Excluded Information. Information is not considered
Confidential Information under this Agreement to the extent that the
information: (a) is or becomes publicly available, other than as a result of any
breach of this Agreement or of any other duty of a Party; (b) is or becomes
available to that Party from a source that, to that Party's knowledge, is
lawfully in possession of that information and is not subject to a duty of
confidentiality, whether to the other Party or another Person, violated by that
disclosure; or (c) is independently developed without reference to the
Confidential Information.
Section 3.03. Use of Confidential Information. Except as expressly
permitted by this Agreement, all Confidential Information shall be held and
protected by the recipient in strict confidence, shall be used by the recipient
only in the manner as it was used immediately after the Effective Time and only
as required to render performance or to exercise rights and remedies under this
Agreement, any Assignment and Assumption Agreement, or any ongoing commercial
relationship between the Parties commencing prior to the Effective Time, and
shall not be disclosed to any other Person.
Section 3.04. Standard of Care. Each Party shall use at least the same
degree of care in maintaining the confidentiality of the Confidential
Information as that Party uses with respect to its own proprietary or
Confidential Information, and in no event less than reasonable care.
Section 3.05. Permitted Disclosures. A Party may disclose Confidential
Information to its officers, directors, employees, legal representatives,
accountants, or tax advisors, on a need-to-know basis, in order to give effect
to this Agreement. Each Party must inform each such Person to whom any
Confidential Information is so communicated of the duty of confidentiality
regarding that information under this Agreement and impose on that Person the
obligation to comply with this Article III regarding the Confidential
Information.
Section 3.06. Required Disclosures. Each Party may disclose Confidential
Information in response to a request for disclosure by a court or another
governmental authority, including a subpoena, court order, or audit-related
request by taxing authority; if that Party: (a) promptly notifies the other
Party of the terms and the circumstances of that request; (b) consults with the
other Party, and cooperates with the other Party's reasonable requests to resist
or narrow that request; (c) furnishes only information that, according to
written advice (which need not be a legal opinion) of its legal counsel, that
the Party is legally compelled to disclose; and (d) uses reasonable efforts at
the other Party's expense to obtain an order or other reliable assurance that
confidential treatment will be accorded the information disclosed. A Party need
not comply with these conditions to disclosure, however, to the extent that the
request or order of the governmental authority in effect prohibits that
compliance. A Party may also disclose Confidential Information without
complying with these conditions to the extent that the Party is otherwise
legally obligated to do so (including for the purposes of complying with
applicable securities laws), as confirmed by advice of competent and
knowledgeable legal counsel. Further, a Party may disclose Confidential
Information, without complying with these conditions, in connection with a tax
audit to representatives of a taxing authority or in connection with a tax
contest in which that Party uses reasonable efforts to assure that confidential
treatment will be accorded the information disclosed.
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Section 3.07. Title to Information. The Confidential Information
disclosed by one Party to the other Party remains the property of the disclosing
Party, and nothing in this Article 3 grants or confers any ownership rights in
any of that information to the other Party.
Section 3.08. Irreparable Harm. The Parties acknowledge that any
disclosure or misappropriation of Confidential Information in violation of this
Agreement could cause irreparable harm, the amount of which may be extremely
difficult to estimate, thus making any remedy at law or in damages inadequate.
Each Party therefore agrees that the other Party shall have the right, afforded
in Section B.4(b) of Appendix A: Dispute Resolution Appendix, to apply to any
court of competent jurisdiction for a temporary or provisional order restraining
any breach or impending breach of this Article III. This right shall be in
addition to any other remedy available under this Agreement.
Section 3.09. General Knowledge. Each Party understands that the other
Party may enhance its generalized knowledge and experience while this Agreement
is in effect and that the other Party may already possess or hereafter obtain
concepts, data, discoveries, ideas, information, inventions, know-how,
knowledge, methodologies, processes, products, skills, techniques or other work
product, whether or not patentable, that are generally similar to Confidential
Information it may receive under this Agreement. This Agreement shall not be
interpreted as limiting such other Party's rights to develop, disclose, display,
market, obtain, own publish, provide, release, sell, transfer, or use, in any
manner whatsoever, any such generalized knowledge and experience or any such
concepts; provided, however, that such other Party shall in all events comply
with the preceding Sections of this Article III.
Section 3.10. Other Agreements Providing for Treatment of Confidential
Information. The rights and obligations under this Article III are subject to
any specific limitations, qualifications or additional provisions on the
confidential treatment or disclosure of information as set forth in any
Intercompany Agreement.
ARTICLE IV
CONTINUING INFORMATION SUPPORT
Section 4.01. Access to Information. Until the ten year anniversary of
the Effective Time, each of EDS and USI (on behalf of itself and its respective
Entities) each shall afford to the other reasonable access and duplicating
rights upon reasonable advance request and during normal business hours to all
information (other than information subject to the attorney-client privilege)
within such party's possession relating to such other party's business, assets
or liabilities to the extent that such access is reasonably required by such
other party as a result of the parties' current parent-subsidiary relationship
for audit, accounting, claims, litigation (except for litigation between the
parties hereto), regulatory or tax purposes, or for purposes of fulfilling
disclosure and reporting obligations. In connection therewith, each party shall
upon the request of the other party make available their respective officers and
employees (and those of their respective Entities) to the extent that they are
reasonably necessary to discuss and explain such information with and to the
other party. Each Party shall cooperate with the other, and shall cause their
respective Entities to cooperate, in the provision of access to information
reasonably necessary for the preparation of reports required by or filed under
the Exchange Act with respect to any period entirely or partially prior to the
Effective Time. The access
12
provided pursuant to this Section 4.01 shall be subject to such additional
confidentiality and security provisions as the disclosing party may reasonably
deem necessary.
Section 4.02. Production of Witnesses. Until the six year anniversary of
the Effective Time, each of EDS and USI shall use commercially reasonable
efforts, and shall cause each of its Entities to use commercially reasonable
efforts, to make available to the other, upon written request, its directors,
officers, employees and other representatives as witnesses to the extent that
any such Person may reasonably be required (giving consideration to the business
demands upon such Persons) in connection with any legal, administrative or other
proceedings in which the requesting party may from time to time be involved.
Section 4.03. Reimbursement. Except with respect to costs and expenses
incurred in connection with any legal, administrative or other proceedings to
which Article II applies, each party to this Agreement providing access,
information or witnesses to the other party pursuant to this Article IV shall be
entitled to receive from the recipient, upon the presentation of invoices
therefor, payment for all reasonable out-of-pocket costs and expenses (excluding
allocated compensation, salary and overhead expense) as may be reasonably
incurred in providing such information or witnesses.
Section 4.04 Retention of Records. Except as otherwise required by law,
each of EDS and USI shall use commercially reasonable efforts to accommodate the
other with respect to retention and provision of copies of any significant
information in such party's possession or under its control relating to the
business, assets or liabilities of the other party.
ARTICLE V
DISPUTE RESOLUTION
Section 5.01. Generally. All Disputes under this Agreement shall be
resolved by the Parties under the Dispute Resolution Procedure set forth in
Appendix A attached hereto.
Section 5.02. Contribution and Transfer Agreements. EDS and USI agree that
any Dispute under the Assignment and Assumption Agreements, including as to
whether a particular asset has been transferred, shall be resolved by the
Dispute Resolution Procedure.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Leased Premises. USI SHALL TAKE, OR SHALL CAUSE ANY USI
ENTITY TO TAKE, EACH OF THE USI PREMISES IN ITS "AS IS" CONDITION AND WAIVES,
AND SHALL CAUSE ALL USI ENTITIES TO WAIVE, ANY AND ALL RIGHTS THAT THEY MAY HAVE
AGAINST ANY EDS ENTITY REGARDING ANY WARRANTIES, EXPRESS OR IMPLIED.
13
Section 6.02. Complete Agreement. This Agreement, including the Schedules
and Annexes and other agreements and documents referred to herein, shall
constitute the entire agreement among the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter, except as provided in Section 2.05
and Section 3.10 of this Agreement.
Section 6.03. Further Actions. In case at any time after the Effective
Time any further action is necessary or reasonably desirable to carry out the
purposes of this Agreement, each Party shall take, and shall cooperate with the
other Party to take, all such necessary or desirable action.
Section 6.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 6.05. Notices. All notices, requests and other communications to
any Party hereunder shall be given to such Party (i) in writing, (ii) delivered
by hand, by telecopy (with a conforming copy of such notice to be sent via a
nationally recognized express delivery service, charges prepaid), by a
nationally recognized express delivery service, charges prepaid, or by first-
class mail, postage prepaid, and (iii) to its address or telecopy number set
forth below:
if to EDS or any EDS Entity:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx, Mail Stop, H2-8W-40
Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
if to USI or any USI Entity:
Unigraphics Solutions Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: President
Section 6.06. Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by EDS and USI.
Section 6.07. No Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties and the Indemnitees and should not be deemed to
confer any benefit upon any other person or entity.
14
Section 6.08. Titles and Headings. The titles and headings to Articles
and Sections herein are inserted for the convenience of reference only and are
not intended to be part of or to affect the meaning or interpretation of this
Agreement.
Section 6.09. Appendices and Schedules. The Appendices and Schedules
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth herein.
Section 6.10. Legal Enforceability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable in any other jurisdiction such provision or remedies
otherwise available to any party hereto. To the extent permitted by applicable
law, each party hereby waives any provision of law that renders any provision
hereof prohibited or unenforceable in any respect. The party shall endeavor in
good faith negotiations to replace any prohibited or unenforceable provisions
with valid provisions, the economic effect of which comes as close as possible
to that of the prohibited or unenforceable provisions.
Section 6.11. Counterparts. This Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
15
IN WITNESS WHEREOF, the parties have caused this Intercompany Agreement to
be executed as of the day and year first above written.
ELECTRONIC DATA SYSTEMS
CORPORATION
By: /s/ D. XXXXXXX XXXXXXXXXXX
--------------------------
Name: D. Xxxxxxx Xxxxxxxxxxx
Title: Senior Vice President
UNIGRAPHICS SOLUTIONS INC.
By: /s/ XXXX XXXXXXX
--------------------------
Name: Xxxx Xxxxxxx
Title: President
16
SCHEDULE 1
ASSIGNMENT AGREEMENTS
1. Contribution, Assignment and Assumption Agreement, dated January 1, 1998,
between EDS and USI.
2. Bills of Sale and Assumption Agreements dated on or after January 1, 1998
between the local EDS Entity and the local USI Entity with regard to
tangible and intangible personal property and receivables located in:
Australia
Austria
Belgium
Brazil
Canada
China
Czech Republic
Denmark
France
Germany
Hong Kong
Indonesia
Italy
Japan
Korea
Malaysia
Mexico
Netherlands
Norway
Poland
Portugal
Russia
Singapore
Spain
Sweden
Switzerland
Taiwan
Thailand
United Kingdom
3. Patent Assignment, dated January 1, 1998, executed by EDS, and all related
assignment documentation prepared for recordation purposes in the United States
Patent and Trademark Office or the equivalent office in foreign jurisdictions.
4. Copyright Assignment, dated January 1, 1998, executed by EDS, and all
related assignment documentation prepared for recordation purposes in the United
States Copyright Office or the equivalent office in foreign jurisdictions.
5. Trademark Assignment, dated January 1, 1998, executed by EDS and all related
assignment documentation prepared for recordation purposes in the United States
Patent and Trademark Office or the equivalent office in foreign jurisdictions.
SCHEDULE 2
INTERCOMPANY AGREEMENTS
1. Memorandum of Understanding dated January 1, 1998 between EDS and USI
regarding support by EDS and USI of General Motors Corporation.
2. Management Services Agreement, dated January 1, 1998, between EDS and USI.
3. Tax Sharing Agreement, dated January 1, 1998, between EDS and USI.
4. Credit Agreement, dated January 1, 1998, between EDS and USI.
5. Credit Agreements, dated January 1, 1998 or thereafter, between EDS Finance
plc and certain non-US USI Entities.
6. Registration Rights Agreement dated January 1, 1998 between EDS and USI.
7. Sublease Agreements dated effective January 1, 1998 between EDS and USI
relating to all or a portion of EDS' real property interest in the following
properties located in the United States and Canada:
00000 Xxxx Xx., Xxxxxxx, XX
0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, XX
000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX.
0000 X.X. Xxx Xxxx., Xxxxxxx, XX
0000 Xxxxxxxx Xxxx Xx., Xxxxxxxx, XX
0000 Xxxxx Xxxx, Xxxxxxxx, XX
Xxxxx Xxxx Xx., Xxxxxxx, XX
7780 France Avenue South, Bloomington, MN
Riverport Drive, Maryland Heights, MO
00 Xxxxxxx Xxxx, Xxxxxxx Xxxx, XX
000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX
00000 Xxxxxxx Road, Cincinnati, OH
000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX
000 X. Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, XX
6900 and 0000 X. Xxxxxxxxx Xxx., Xxxxxxxx, XX
00000 El Monte, Overland Park, KS
0000 Xxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxx, XX
000 Xxxxx Xxxxx, Xxxx, XX
000 Xxxxx Xxxxx, Xxxx, XX
0000 Xxxxxxxx Xx., Xxxxxxxxx, XX
00000 Xxxxx Blvd., Huntersville, NC
0000 XxXxxxxx, Xxxxxxx, XX
0000 Xxxxxx Xxxxx, Xxxxx, XX
000 X. 000, Xxxx Xxxx Xxxx, XX
00000 XXX Xxxxx, Xxxxxxx, XX
00000 X.X. 00xx Xx, Xxxxx 000, Xxxxxxxx, XX
000 Xxxx. Xxxxx, Xx. Xxxxxxx, Xxxxxx
00 Xxxxx Xx., Xxxxxxx, Xxxxxx
8. Those certain Intercompany Agreements between the local USI Entity and the
local EDS Entity setting forth the terms and conditions under which the USI
Entity shall continue to occupy certain real property leased or owned by the
EDS Entity in various countries outside the United States and Canada.
SCHEDULE 3
USI PREMISES
The "USI Premises" shall include the following:
1. All real property or portions thereof located within and outside of the
United States leased or subleased by EDS to USI (or an EDS Entity to a
USI Entity) pursuant to one of the lease, sublease or occupancy
agreements referred to in numbered paragraphs 7 and 8 of Schedule 2 to
this Agreement.
2. The real property utilized by the Transferred Business at customer
sites and residences of employees of the Transferred Business.
3. All real property owned or leased directly by USI or a USI Entity.
The "EDS Premises" shall consist of all other real property owned or leased by
EDS other than the USI Premises.
APPENDIX A
DISPUTE RESOLUTION APPENDIX
TO INTERCOMPANY AGREEMENT
A. Defined Terms. Various terms used in this Dispute Resolution Appendix,
which begin with a capital letter, are defined in Article I of the Intercompany
Agreement. In addition, the following terms used only in this Dispute
Resolution Appendix have the corresponding meanings:
"COMPLEX DISPUTE LIST": The "Complex Dispute List," maintained by the
American Arbitration Association or if that list is not then maintained by the
American Arbitration Association, another list of individuals having similar
qualifications maintained by the American Arbitration Association.
"EXECUTIVE REVIEW COMMITTEE": A committee consisting of a Senior Vice
President of EDS (selected by EDS) and the Chief Financial Officer of USI.
"QUALIFICATIONS": Inclusion in the Complex Dispute List or having
extensive knowledge or experience, or both, regarding issues that are the
subject of the Dispute.
B. Dispute Resolution Procedure.
1. General Procedure. Except as otherwise stated in the Agreement, the
Parties shall resolve all Disputes in accordance with this procedure:
(a) Any Dispute shall initially be referred by either Party to the
Executive Review Committee for resolution.
(b) If the Executive Review Committee does not resolve the Dispute
within twenty Business Days (or such longer period as that Committee may
agree) after the date of referral to it, either Party may submit the
Dispute for resolution by the President of USI and the President of EDS,
who may submit the Dispute to non-binding mediation in accordance with
Section B.2 of this Dispute Resolution Appendix.
(c) If the Dispute is not resolved by the executives to whom it was
submitted pursuant to Section B.1.(b) above (if submitted to them) and is
not submitted to or resolved by mediation, then either Party may submit the
Dispute to binding arbitration in accordance with Section B.3 of this
Dispute Resolution Appendix (which, except as provided in Section 4 of this
Dispute Resolution Appendix, shall be the sole means available for
resolution of the Dispute).
A referral under any of Sections B.1(a) and B.1(b) of this Dispute
Resolution Appendix shall be made by written notice to the Persons designated in
the applicable Section or Sections. That notice
shall be in a form described in the Agreement or an electronic mail message and
addressed to each Person at his office address or electronic mail address; each
notice shall be given and effective as described in the Agreement or, in the
case of electronic mail, upon actual receipt. The date of referral is the last
date that notice is given to all of the Persons to whom the Dispute must have
been referred.
2. Mediation. The mediation of an unresolved Dispute shall be conducted
in this manner:
(a) Either Party may submit the Dispute to mediation by giving notice
of mediation to the other Party. The Parties shall attempt to agree upon
and appoint a sole mediator who has the Qualifications promptly after that
notice is given.
(b) If the Parties are unable to agree upon a mediator within ten days
after the date the Dispute is submitted to mediation, either Party may
request the Dallas office of the American Arbitration Association to
appoint a mediator who has the Qualifications. The mediator so appointed
shall be deemed to have the Qualifications and to be accepted by the
Parties.
(c) The mediation shall be conducted in the Dallas-Fort Worth
metropolitan area at a place and a time agreed by the Parties with the
mediator, or if the Parties cannot agree, as designated by the mediator.
The mediation shall be held within 20 days after the mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the Parties shall
attempt to agree on procedures for the formal exchange of information; if
the Parties cannot agree, the mediator's determination shall be final.
(e) Each Party shall be represented in the mediation by a natural
Person with authority to settle the Dispute on behalf of that Party and, if
desired by that Party, by counsel for that Party. The Parties'
representatives in the mediation shall continue with the mediation as long
as the mediator requests.
(f) The mediation shall be subject to Chapter 154 of Title 7 of the
Texas Civil Practice and Remedies Code.
(g) Unless otherwise agreed by the Parties, each Party shall pay one-
half of the mediator's fees and expenses and shall bear all of its own
expenses in connection with the mediation. Neither Party may employ or
use the mediator as a witness, consultant, expert, or counsel regarding the
Dispute or any related matters.
3. Arbitration. The arbitration of an unresolved Dispute shall be
conducted in this manner:
A-2
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The Parties shall
attempt to agree upon and appoint a panel of three arbitrators promptly
after that demand is filed. Each of those arbitrators must have the
Qualifications, and at least one of those arbitrators must be included in
the Complex Dispute List (unless no list of that kind is then maintained).
(b) If the Parties are unable to agree upon any or all of the
arbitrators within ten days after the demand for arbitration was filed (and
do not agree to an extension of that ten-day period), either Party may
request the Dallas office of the American Arbitration Association to
appoint the arbitrator or arbitrators, who have the Qualifications (and at
least one of whom must be included in the Complex Dispute List, unless no
list of that kind is then maintained), necessary to complete the panel in
accordance with the Arbitration Rules. Each arbitrator so appointed shall
be deemed to have the Qualifications and to be accepted by the Parties as
part of the panel.
(c) The arbitration shall be conducted in the Dallas-Fort Worth
metropolitan area at a place and a time agreed by the Parties with the
panel, or if the Parties cannot agree, as designated by the panel. The
panel may, however, call and conduct hearings and meetings at such other
places as the Parties may agree or as the panel may, on the motion of one
Party, determine to be necessary to obtain significant testimony or
evidence.
(d) The Parties shall attempt to agree upon the scope and nature of
any discovery for the arbitration. If the Parties do not agree, the panel
may authorize discovery in accordance with the Federal Rules of Civil
Procedure upon a showing of particularized need that the requested
discovery is likely to lead to material evidence needed to resolve the
Dispute and is not excessive in scope, timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration Act
and conducted in accordance with the Arbitration Rules to the extent they
do not conflict with this Section B.3 of this Dispute Resolution Appendix.
The Parties and the panel may, however, agree to vary the provisions of
this Section B.3 of this Dispute Resolution Appendix or the matters
otherwise governed by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or continuance
of the Agreement;
(ii) award remedies or relief either expressly prohibited by the
Agreement or under circumstances not permitted by the Agreement; or
(iii) grant provisional or temporary injunctive relief before
rendering the final decision or award.
A-3
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to arbitration at one
time shall be consolidated in a single arbitration proceeding.
(h) A Party or other Person involved in an arbitration under this
Section B.3 may join in that arbitration any Person other than a Party if
(i) the Person to be joined agrees to resolve the particular
dispute or controversy in accordance with this Section B.3 and the
other provisions of this Dispute Resolution Appendix applicable to
arbitration; and
(ii) the panel determines, upon application of the Person
seeking joinder, that the joinder of that other Person will promote
the efficiency, expedition, and consistency of the result of the
arbitration and will not unfairly prejudice any other party to the
arbitration .
(i) The arbitration hearing shall be held within 30 days after the
appointment of the panel. Upon request of either Party, the panel shall
arrange for a transcribed record of the arbitration hearing, to be made
available to both Parties.
(j) The panel's final decision or award shall be made within 30 days
after the hearing. That final decision or award shall be made by unanimous
or majority vote or consent of the arbitrators constituting the panel, and
shall be deemed issued at the place of arbitration. The panel shall issue
a reasoned written final decision or award based on the Agreement and
Delaware law; the panel may not act according to equity and conscience.
(k) The panel's final decision or award may include:
(i) recovery of damages to the extent permitted by the
Agreement; or
(ii) injunctive relief in response to any actual or threatened
breach of the Agreement or any other actual or threatened action or
omission of a Party under or in connection with the Agreement.
(l) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may be entered
in any court having jurisdiction over either or both of the Parties or
their respective assets. The Parties specifically waive any right they may
have to apply or appeal to any court for relief from the preceding sentence
or from any decision of the panel made, or any question of law arising,
before the final decision or award. If any decision by the panel is
vacated for any reason, the Parties shall submit that Dispute to a new
arbitration in accordance with this Section B.3.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in connection with the
arbitration. The panel has the authority,
A-4
however, to award recovery of all costs and fees (including attorneys'
fees, administrative fees and the panel's fees and expenses) to the
prevailing Party in the arbitration.
4. Recourse to Courts. Nothing in the Dispute Resolution Procedure limits
the right of either Party to apply to a court or other tribunal having
jurisdiction to:
(a) enforce the Dispute Resolution Procedure, including the agreement
to arbitrate in this Dispute Resolution Appendix;
(b) seek provisional or temporary injunctive relief so as to avoid
irreparable damage or maintain the status quo, until a final arbitration
decision or award is rendered or the Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award that
does not comport with Section B.3 of this Dispute Resolution Appendix.
5. Submission to Jurisdiction. Each Party irrevocably submits to the
jurisdiction of the federal courts of the United States and the state courts of
Texas located in Collin County, Texas. Each Party waives any defense or
challenge to that jurisdiction based on lack of personal jurisdiction, improper
venue, or inconvenience of forum.
6. Confidentiality. The proceedings of all negotiations, mediations, and
arbitrations as part of the Dispute Resolution Procedure shall be privately
conducted. The Parties shall keep confidential all conduct, negotiations,
documents, decisions, and awards in connection with those proceedings under the
Dispute Resolution Procedure.
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