EXHIBIT 2.2
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement (this "Agreement") is made and entered
into effective as of ____________, 1997 (the "Effective Date") between Sun
Microsystems, Inc., a Delaware corporation having its principal executive
offices located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
("Sun") and Encore Computer Corporation, a Delaware corporation having its
principal executive offices located at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000-0000 ("Encore").
RECITALS
A. Concurrently herewith the parties hereto are consummating the sale
from Encore to Sun and Sun Microsystems International, B.V. ("SMIBV") of certain
assets of Encore pursuant to an Asset Purchase Agreement dated July ___, 1997.
In order to continue to conduct certain aspects of its business related to
real-time systems not being acquired by Sun and SMIBV under such Asset Purchase
Agreement, Encore requires a limited license back from Sun to use, copy and
modify certain intangible and intellectual property assets acquired by Sun and
SMIBV for certain limited purposes, subject to the terms, conditions and
restrictions contained herein.
B. It is a condition to Encore's obligation to consummate the sale of
the foregoing assets to Sun under the Asset Purchase Agreement that Sun enter
into this Agreement.
NOW, THEREFORE, in consideration of the facts recited above and the
mutual agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms will have the following
meanings:
1.1 "Asset Purchase Agreement" means the Asset Purchase Agreement dated
July ___, 1997 being executed among Sun, SMIBV, and Encore.
1.2 "Change of Control" means (a) a merger or consolidation of Encore
with or into any other corporation or entity; or (b) any other transaction in
which the shareholders of Encore immediately prior to such transaction cease to
own a majority of the voting power of Encore or of the surviving or acquiring
corporation or entity immediately after such transaction; or (c) a sale,
transfer or lease of all or substantially all of Encore's assets (other than any
of the foregoing effected with or to Sun or any of Sun's affiliates). A Change
of Control will be deemed to have occurred at such time as Encore enters into
any agreement with any person or entity requiring Encore to take any steps to
consummate or seek the consummation of a Change of Control.
1.3 "Confidential Information" means (a) the Licensed Materials, (b) any
and all information that is disclosed by Sun to Encore orally, electronically,
visually or in a document or other tangible form, which is either identified as
or should be reasonably understood to be confidential and/or proprietary
information of Sun or its licensors, (c) any notes, extracts, analyses, or
materials prepared by Encore that are copies of or derived from the Confidential
Information or from which the substance of the Confidential Information can be
inferred or otherwise perceived or understood; provided however, that
"Confidential Information" does not include information Encore received from Sun
that Encore can clearly establish by written evidence (i) is or becomes known by
Encore without any obligation to maintain its confidentiality (except that no
Licensed Materials shall be excluded from the definition of Confidential
Information by virtue of any of Encore's pre-existing knowledge of such Licensed
Materials that was gained prior to the Effective Date of this Agreement); (ii)
is or becomes generally known to the public through no act or omission of Encore
or of any person, firm or corporation having authority to act for Encore or for
any customer of Encore; or (iii) is independently developed by Encore without
use of or reference to any Confidential Information.
1.4 "Derivative Work" means: (a) for copyrightable or copyrighted
material (including materials subject to mask work rights), a work which is
based upon one or more pre-existing works, such as a revision, modification,
translation, abridgement, condensation, expansion, collection, compilation or
any other form in which such pre-existing works may be recast, transformed or
adapted; (b) for patentable or patented materials, any adaptation, addition,
improvement, or combination thereof; and (c) for material subject to trade
secret protection, any new material, information or data relating to and derived
from such existing trade secret material, including new material which may be
protectable by copyright, patent or other proprietary rights.
1.5 "Encore Derivative Works" means Derivative Works based upon the
Licensed Materials created by or on behalf of Encore and which are owned by or
licensable by Encore.
1.6 "Intellectual Property Rights" means, collectively, all of the
following worldwide intangible legal rights, whether or not filed, perfected,
registered or recorded and whether now or hereafter existing, filed, issued or
acquired: (i) patents, patent applications, and patent rights, including any and
all continuations, continuations-in-part, divisions, reissues, reexaminations or
extensions thereof; (ii) rights associated with works of authorship (including
without limitation audiovisual works), including without limitation copyrights,
copyright applications and copyright registrations, moral rights, mask work
rights, mask work applications and mask work registrations; (iii) rights in
trade secrets (including without limitation rights in industrial property,
customer, vendor and prospect lists and all associated information or databases
and other confidential or proprietary information), and all rights relating to
the protection of the same; and and (iv) any rights analogous to those set forth
in the preceding clauses and any other proprietary rights relating to intangible
property; but specifically excluding trademarks, service marks, trade dress, and
trade names.
1.7 "Licensed Materials" means, collectively, any and all of the
following items associated with, related to or used in connection with Encore's
Storage Products Business which were sold, assigned, transfered, conveyed and
delivered to Sun and SMIBV pursuant to the Asset Purchase Agreement as of the
Effective Date: software (in both source code and binary code form), designs,
plans, schematics, drawings, blueprints, technical information, specifications,
manufacturing plans or instructions, ideas, concepts, inventions, discoveries,
processes, procedures, methodologies, and know-how. Licensed Materials does not
include any Derivative Works created by or on behalf of Sun after the Effective
Date of this Agreement.
1.8 "Real Time Products" means, collectively, Real Time Systems and any
software, hardware, or components which comprise or are designed for use in or
for the design and/or testing of Real Time Systems. Real Time Products
specifically excludes any Storage Products.
1.9 "Real Time Systems" means computer systems, which may include an
incidental amount of storage capacity, in which the computer is required to
perform its tasks within the time constraints of some process, or simultaneously
with a system it is assisting, so as to be capable of intervening appropriately
and in real time in such process or with respect to the assisted system.
1.10 "Storage Products" means (i) mechanisms, devices or functional
units into which data can be placed and retained and from which data can be
retrieved, and (ii) any software, hardware or components which comprise or are
designed for use in or in conjunction with the operation of any of the items
listed in the preceding clause (i).
1.11 "Storage Products Business" means Sun's business of developing,
manufacturing, marketing, licensing, distributing, using, operating, servicing
or otherwise using or commercially exploiting all or any aspect of any or all of
the Storage Products.
1.12 "Sublicensee" means any third party customer of Encore who is the
recipient of a sublicense granted by Encore pursuant to the provisions of
clauses (i) or (ii) in Section 3.1(b) below.
1.13 "Sun Trademarks" means all names, marks, logos, designs, trade
dress and other brand designations used by Sun in connection with Sun products
and services.
ARTICLE II
OWNERSHIP
2.1 Ownership of Confidential Information. Encore acknowledges and
agrees that Sun is the sole and exclusive owner of all right, title and interest
in and to the Confidential Information and all associated Intellectual Property
Rights. Encore agrees that it will acquire no interests under this Agreement in
or to any Confidential Information or any Intellectual Property Rights therein,
other than the limited license interests specifically granted to Encore under
this Agreement.
2.2 No Limitations on Sun Use. Nothing in this Agreement shall be
construed to limit or restrict, in any way or manner, any right of Sun to
encumber, transfer, license, sublicense, assign, transfer, access, reference,
market, distribute, use, sell, commercially exploit or otherwise practice all or
any part of the Confidential Information in any way or for any purpose
whatsoever, including without limitation the use, licensing, and/or registration
of the Confidential Information anywhere in the world for any purpose or use in
connection with the development, manufacture, distribution, marketing, promotion
and/or sale of any product or service.
ARTICLE III
GRANT OF LICENSES
3.1 License Grant to Encore. Subject to all of the terms, limitations
and conditions of this Agreement, Sun hereby grants to Encore a non-exclusive,
non-transferable (except as otherwise permitted under Section 9.11 below),
royalty-free, paid-up license under any Intellectual Property Rights in the
Licensed Materials:
(a) To internally use, modify, copy, and create Encore
Derivative Works based upon the Licensed Materials solely for the purpose of the
design, manufacture, marketing, distribution, sale, licensing, installation,
support, repair, and maintenance of Real Time Products of Encore and for no
other purpose; and
(b) To sublicense Sublicensees of Encore (i) to manufacture,
market, distribute, sell, license, install, support, repair, and maintain Real
Time Products of Encore created within the scope of the license rights set forth
in Section 3.1(a) above, under either Encore's brand name(s) or under the brand
name(s) of such Sublicensees; (ii) to incorporate such Real Time Products of
Encore in unmodified form only into Real Time Products of such Sublicensees
("Sublicensee Real Time Products"), and to manufacture, market, distribute,
sell, license, install, support, repair, and maintain such Sublicensee Real Time
Products under the brand name(s) of such Sublicensees; and/or (iii) to further
sublicense customers of such Sublicensees to do any of the activities set forth
in the preceding clauses (i) and (ii), provided, however, that no such further
sublicense shall grant any rights to use any source code for any of the Licensed
Materials, nor shall any Sublicensee disclose such source code to any further
sublicensee, without the advance written permission of Sun, which Sun shall be
free to grant or deny in its sole discretion. Except as expressly set forth in
clause (iii) of the preceding sentence, Sublicensees of Encore shall have no
right to further sublicense any of the rights sublicensed to them pursuant to
this Section 3.1(b), to create Derivative Works based upon the Licensed
Materials or upon any Real Time Products of Encore, or to sublicense others to
create such Derivative Works. As a condition to the right to grant sublicenses
set forth in this Section 3.1(b), Encore shall give Sun prompt written notice of
any such sublicense granted by Encore, identifying the name of the recipient of
such sublicense and summarizing the nature and scope of the sublicense granted.
3.2 Restrictions on Licenses to Encore. Encore acknowledges and agrees
that it may not disclose any of the Licensed Materials to anyone except to the
extent necessary to exercise Encore's license rights hereunder. Encore may not
use the Licensed Materials or any portion thereof in any manner not expressly
authorized by this Agreement, including but not limited to use in the design,
manufacture, marketing, distribution, sale, licensing, installation, support,
repair, and maintenance of Storage Products or use in any way competitive with
Sun's Storage Products Business as it may exist as of the Effective Date or at
any time in the future.
3.3 No Other Rights to Encore. Encore acknowledges and agrees that Sun
and its licensors reserve and retain all rights in the Licensed Materials and
other Confidential Information not expressly granted to Encore under this
Agreement. Other than the limited license rights granted in this Agreement,
Encore acquires no right, title, interest or other right in or to any of the
Licensed Materials or any other Confidential Information.
3.4 Licenses Back to Sun for Derivative Works.
(a) License from Encore and Supply of Encore Derivative Works.
Encore hereby grants and agrees to grant to Sun a non-exclusive, non-terminable,
royalty-free, paid-up license under any Intellectual Property Rights in any
Encore Derivative Works to use, modify, copy, and create Derivative Works based
upon the Encore Derivative Works for any purpose whatsoever other than the
design, manufacture, marketing, distribution, sale, licensing, installation,
support, repair, and maintenance of Real Time Products. Encore agrees to supply
to Sun one (1) copy of each Encore Derivative Work promptly upon its creation,
together with accompanying documentation for the same (including but not limited
to commented source code) sufficient to enable Sun to exercise the rights with
respect to such Encore Derivative Work set forth in the preceding sentence.
(b) Removal of Restrictions With Respect to Real Time Products.
In the event that this Agreement is terminated by Sun for breach or in the event
that Encore transfers ownership of any Encore Derivative Works to any third
party, then the restrictions on Sun's license rights set forth in Sections
3.4(a) above shall automatically become null and void and Sun shall be entitled
to exercise such license rights without restriction of any kind.
3.5 No Obligation to Supply Enhancements or Support. Neither Sun, SVIB,
nor any of their licensors will have any obligation whatsoever to provide any
updates, upgrades, enhancements, or improvements to any of the Licensed
Materials, or to provide support or maintenance, including bug fixes and
training, with respect to any of the Licensed Materials. Encore will have no
obligation whatsoever to provide any support or maintenance, including bug fixes
and training, with respect to any Encore Derivative Works.
ARTICLE IV
CONFIDENTIALITY
4.1 Confidentiality Obligations. Encore agrees that it shall, and it
shall cause each Sublicensee to agree to, hold the Licensed Materials and any
other Confidential Information in confidence and not to use the Licensed
Materials except as expressly permitted under this Agreement. Encore and its
Sublicensees shall not disclose any Confidential Information to any third party
and shall protect and treat all Confidential Information so as to maintain its
confidential status with the same degree of care as each uses to protect its own
confidential information of like importance, but in no event less than
reasonable care. Except as expressly permitted in Article III or for backup or
archival purposes, Encore agrees, and shall cause its Sublicensees to agree, not
to use, make or have made any copies of Confidential Information, in whole or in
part, without the prior written authorization of Sun. Encore agrees, and shall
cause its Sublicensees to agree, to disclose Confidential Information only to
their respective employees who require access to the same for purposes of
exercising the license rights granted under Article III of this Agreement.
Encore agrees, and shall cause its Sublicensees to agree, to notify and inform
such employees of the limitations, duties and obligations regarding use, access
to and nondisclosure of Confidential Information and to obtain or have obtained
their employees' agreements to comply with such limitations, duties and
obligations. Encore agrees, and shall cause its Sublicensees to agree, to
provide notice to Sun immediately after learning of or having reason to suspect
a breach of any of the proprietary restrictions set forth in this Article IV. In
the event that Encore or one of its Sublicensees is required to disclose any
Confidential Information pursuant to law, Encore agrees, and shall cause its
Sublicensees to agree, to first notify Sun of the required disclosure with
sufficient time to seek relief, to cooperate with Sun in taking appropriate
protective measures, and to make such disclosure in a fashion that maximizes
protection and minimizes disclosure of Confidential Information. This Article IV
will not affect any other confidential disclosure agreement between the parties.
4.2 Injunctive Relief. Encore acknowledges and agrees that the
Confidential Information constitutes a unique and proprietary asset of Sun and
Encore acknowledges that the unauthorized use or disclosure of the Confidential
Information would cause substantial harm and injury to Sun, the extent of which
cannot be readily ascertained and which cannot be remedied by the payment of
monetary damages alone. Accordingly, Encore agrees that Sun will be entitled to
preliminary and permanent injunctive relief and other equitable relief for any
breach of this Article IV or any other breach by Encore of this Agreement.
ARTICLE V
TERM AND TERMINATION
5.1 Term. The licenses to the Licensed Materials granted herein shall
continue in effect until this Agreement is terminated in accordance with this
Article V.
5.2 Termination by Sun. Sun may immediately terminate this Agreement and
all licenses and rights granted to Encore hereunder in the event that: (a)
Encore or any of its Sublicensees materially breaches any of the obligations or
restrictions contained in this Agreement and fails to cure such breach within
thirty (30) days after Sun gives Encore or such Sublicensee written notice of
such breach; (b) Encore or any of its Sublicensees takes any action in
derogation of the rights of Sun to the Licensed Materials, (c) the Licensed
Materials, or any portion thereof, becomes, or in Sun's reasonable opinion is
likely to become, the subject of a claim of infringement of a patent, trade
secret, copyright, mask right or other Intellectual Property Right, or (d)
Encore undergoes or suffers a Change of Control (except in the case in which Sun
elects to permit assignment of this Agreement in connection with such Change of
Control pursuant to Section 9.11 below).
5.3 Insolvency. In the event that Encore becomes insolvent or the
subject of a voluntary or involuntary bankruptcy case or proceeding, then Sun
may at its sole option and in its sole discretion terminate the licenses granted
under Article III, and terminate this Agreement immediately upon written notice
to Encore.
5.4 Obligations on Termination. Upon termination of Encore's licenses or
this Agreement, Encore shall immediately discontinue all use of the Licensed
Materials and the licenses and rights granted hereunder shall terminate. Within
thirty (30) days after such termination, Encore shall deliver and return to Sun,
and shall cause all of its Sublicensees to deliver and return to Sun, F.O.B.
Sun's facilities, all Licensed Materials and all Derivative Works based thereon,
including any and all copies of any of the foregoing.
5.5 Survival. The provisions of Article II, Article IV, Article V,
Article VI, Article VIII, Article IX, and Sections 3.4 and 3.5 hereof shall
survive termination of this Agreement for any reason.
ARTICLE VI
DISCLAIMER OF ALL WARRANTIES AND SUPPORT OBLIGATIONS
6.1 Disclaimer of All Warranties. ENCORE ACKNOWLEDGES AND AGREES THAT
ALL LICENSED MATERIALS LICENSED BY SUN UNDER THIS AGREEMENT ARE PROVIDED BY SUN
"AS IS" AND WITHOUT WARRANTY OF ANY KIND. SUN HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY LICENSED MATERIALS, INCLUDING
BUT NOT LIMITED TO ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR WARRANTIES ARISING FROM A COURSE OF
DEALING, USAGE OR TRADE PRACTICE. IN PARTICULAR, NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED AS ANY WARRANTY OR REPRESENTATION BY SUN THAT THE LICENSED
MATERIALS WILL BE ERROR-FREE OR WILL NOT INFRINGE THE INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES. SUN HEREBY EXPRESSLY DISCLAIMS AND SHALL NOT BE
RESPONSIBLE FOR ANY LIABILITY ARISING AS A RESULT OF OR IN CONNECTION WITH ANY
CLAIM, SUIT OR PROCEEDING ALLEGING: (A) THAT THE LICENSED MATERIALS CONTAIN ANY
BUGS OR ERRORS OF ANY KIND; OR (B) THAT THE USE OF ANY LICENSED MATERIALS
INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. No agent of Sun
is authorized to make or incur any warranty obligations on behalf of Sun or to
modify the limitations and disclaimers set forth in this Section 6.1.
6.2 Restriction on Aircraft, Nuclear and Other Applications. None of the
Licensed Materials is designed or intended for use in the control of aircraft or
other aeronautic craft (including space flight), air traffic control, aircraft
navigation or aircraft communications; or in the design, construction, operation
or maintenance of any nuclear facility. Without limiting or modifying the
foregoing disclaimers of warranties, Sun disclaims any express or implied
warranty of fitness for such uses. As a condition of being granted the license
rights granted to it hereunder, Encore agrees and represents that it will not
use any Licensed Materials for any of the purposes described in this Section.
6.3 Responsibility for Backup. Encore and its Sublicensees shall have
the sole responsibility for taking steps to protect and backup or archive their
data and/or equipment used with any of the Licensed Materials and Encore agrees,
and shall cause its Sublicensees to agree, not to make any claim of any kind
against Sun for lost data, re-run time, inaccurate output, work delays, or lost
profits resulting from the use of any of the Licensed Materials or any portion
thereof.
ARTICLE VII
COPYRIGHT AND PROPRIETARY NOTICES
7.1 Included Notices. In the exercise of the rights and licenses granted
in this Agreement Encore agrees, and shall cause its Sublicensees to agree, to
retain, reproduce and apply any copyright notices and/or other proprietary
rights notices included on or embedded in the Licensed Materials by Sun on all
copies, in whole or in part, in any form of the Licensed Materials and in any
Encore Derivative Works. In addition, Encore shall comply, and shall cause its
Sublicensees to comply, with all reasonable requests by Sun to include copyright
and/or other proprietary rights notices on any part of the Licensed Materials.
7.2 Trademarks, Logos and Product Designs. Neither Encore nor any of its
Sublicensees is granted any right, title or license to, or interest in, any Sun
Trademarks. Encore acknowledges Sun's rights in Sun Trademarks and acknowledges
and agrees Encore is not being granted any license or other right or interest in
or to any Sun Trademark under this Agreement. Encore agrees, and will cause its
Sublicensees to agree, not to (a) challenge Sun's ownership or use of, (b)
register, or (c) infringe, any Sun Trademarks, nor shall Encore incorporate any
Sun Trademarks into Encore's trademarks, service marks, company names, internet
addresses, domain names, brand names or similar designations. If Encore or any
of its Sublicensees acquires any rights in any Sun Trademarks by operation of
law or otherwise, it will immediately and at no expense to Sun assign, and cause
its Sublicensees to assign, all such rights to Sun along with any associated
goodwill, applications and/or registrations.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNITY
8.1 Limitation of Liability. INASMUCH AS ENCORE IS NOT BEING CHARGED ANY
LICENSE FEES FOR THE LICENSES AND OTHER RIGHTS GRANTED UNDER THIS AGREEMENT, AND
GIVEN ENCORE'S PRIOR FAMILIARITY WITH THE LICENSED MATERIALS, ENCORE AGREES THAT
SUN SHALL HAVE NO LIABILITY TO ENCORE WHATSOEVER UNDER THIS AGREEMENT. IN NO
EVENT SHALL SUN BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING OUT OF OR RELATING
TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS,
REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC BENEFIT OR ADVANTAGE), HOWEVER
ARISING, WHETHER FOR BREACH OF THIS CONTRACT OR IN TORT (INCLUDING NEGLIGENCE),
EVEN IF SUN HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE
FOREGOING LIMITATION OF LIABILITY SHALL BE EFFECTIVE AND SUCH DAMAGES SHALL BE
EXCLUDED, EVEN IF ANY REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
8.2 Indemnity by Encore. Inasmuch as Encore is not being charged any
license fees for the licenses and other rights granted to it under this
Agreement, and given Encore's prior familiarity with the Licensed Materials, Sun
is unwilling to incur any liability with respect to any actions taken by Encore
or its Sublicensees pursuant to this Agreement or in connection with the
Licensed Materials. Accordingly, as a material inducement and consideration for
Sun to enter into this Agreement, Encore hereby agrees to indemnify and hold Sun
and all of its past, present or future affiliates, subsidiaries, parents,
officers, directors, shareholders, employees and agents harmless from and
against any and all loss, liabilities, damages, costs and expenses whatsoever
(including without limitation reasonable attorneys' fees) arising in any manner
and at any time from any use, modification or reproduction by Encore and/or any
of its affiliates, licensees or Sublicensees of any Licensed Materials, whether
or not such use, modification or reproduction is authorized by this Agreement.
ARTICLE IX
GENERAL TERMS
9.1 Governing Law and Jurisdiction. This Agreement shall be governed by
the internal laws of the State of California without regard to or application of
choice of law rules or principles. Any disputes arising under this Agreement
will be brought in the federal or state courts of the Northern District of
California. Encore agrees to be subject to the jurisdiction and venue of such
courts.
9.2 Relationship of the Parties. The relationship of the parties to this
Agreement is solely that of independent contractors, and the parties hereto are
not partners, joint venturers or agents of the other.
9.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the addresses listed in Exhibit A (or at such other address for a
party as shall be specified by like notice).
9.4 Waiver; Modification. This Agreement may not be changed, amended or
modified in any manner without the written consent of each party hereto. No
party shall be deemed to have waived any of its rights under this Agreement
unless its waiver is signed by such party in writing. The waiver by any party of
any default or breach of this Agreement will not constitute a waiver of any
other or subsequent default or breach.
9.5 Compliance with Law. Encore agrees to comply fully with all relevant
laws in its exercise of any rights granted to it herein.
9.6 Government Rights. If Encore or any of its Sublicensees ever
provides any Licensed Materials in the form of software to the U.S. Government,
Encore will ensure that the U.S. Government's use, duplication or disclosure of
such software will be subject to restrictions of FAR 12.212(a)(1995), FAR
52.227-14 (ALT III) and FAR 52.227-19, or DFARS 252.227-7013(c)(1)(ii) (OCT
1988) and DFARS 227.7202-1(a) and 227.7202-3(a) (1995), as applicable.
9.7 Third Party Beneficiaries. SMIBV shall be a third party beneficiary
of this Agreement and have the right to enforce this Agreement to protect its
rights in the Licensed Materials. Except as expressly stated herein, this
Agreement is made for the benefit of the parties hereto, and not for the benefit
of any third parties.
9.8 Headings. The headings used herein are for reference only and shall
not be considered as substantive parts of this Agreement.
9.9 Construction. This Agreement has been negotiated by the parties,
each of which has been represented by counsel. This Agreement will be fairly
interpreted in accordance with its terms, without any strict construction in
favor of or against either party.
9.10 Provisions Found Invalid. If any term or provision of this
Agreement is found to be invalid under any applicable statute or rule of law
then, that provision notwithstanding, this Agreement shall remain in full force
and effect and such provision shall be enforced to the greatest extent possible.
9.11 Restriction on Assignment. The parties agree that Encore may not
assign this Agreement or any of the licenses granted to it under Article III
hereof, whether expressly, by operation of law or otherwise, without the express
advance written consent of Sun, and any attempt to assign this Agreement or any
of the rights or licenses hereunder without such advance written consent shall
be void; provided, however, that Sun will not unreasonably withhold consent to
the assignment of this Agreement by Encore to a successor to Encore that
succeeds to all of the business of Encore, by merger, operation of law,
assignment, purchase or otherwise. For purposes of the preceding sentence, Sun
shall not be deemed to have acted unreasonably in withholding its consent to an
assignment where Sun determines in its sole discretion that the successor to
whom Encore proposes to assign this Agreement is a competitor or potential
competitor of Sun.
9.12 Entire Agreement. This Agreement, together with its exhibits,
constitutes the complete agreement and understanding between the parties
regarding the subject matter hereof.
9.13 Taxes and Duties. Any tariffs, duties and/or local, state or
federal sales, excise, personal property or use tax, or any other similar tax or
duties imposed by any government shall be assumed and paid by Encore. Each of
Encore and Sun shall assume and be responsible for any tax or duty payable with
respect to its income. Encore or any Sublicensee shall assume and pay any such
taxes imposed in connection with any sublicense from Encore to a Sublicensee.
9.14 Compliance with Export Regulations. Encore agrees that it will not
export or re-export, and that it shall cause its Sublicensees not to export or
re-export, the Licensed Materials and Encore Derivative Works, in contravention
of the Export Administration Act of 1979, as amended, of the United States and
any other statute or regulation promulgated by the United States government or
the government of any state regarding export and re-export of products now in
effect or hereafter adopted. Encore further agrees that it will obtain, and it
will cause its Sublicensees to obtain, all export licenses required by said Act
or laws and regulations, prior to such export or re-export. Encore shall
cooperate fully with any Sublicensees to permit their compliance with the
foregoing laws and regulations.
IN WITNESS WHEREOF, this Agreement has been executed and entered into by
the parties effective as of the Effective Date of this Agreement.
Sun Microsystems, Inc. Encore Computer Corporation
By: By:
Printed Name: Printed Name:
Title: Title:
Attachments:
Exhibit A: Addresses for Notice
EXHIBIT A
Addresses for Notice
(a) Encore:
Encore Corporation
0000 X. Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Chairman and CEO
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Cameron Read, Esq.
Telecopy: (000) 000-0000
(b) Sun:
Sun Microsystems, Inc.
0000 Xxxxxx Xxxxxx
XX: XXX00-000
Xxxxxxxx Xxxx, XX 00000-0000
Attention: ________________
Telecopy: ________________
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000