TRANSITION SERVICES AGREEMENT Between HARRIS CORPORATION and HARRIS STRATEX NETWORKS, INC.
EXHIBIT
10.7
Between
XXXXXX CORPORATION
and
XXXXXX STRATEX NETWORKS, INC.
Dated:
January 26, 2007
TABLE OF CONTENTS
ARTICLE I
Services
| Section 1.01 | Definitions
|
1 | ||||
| Section 1.02 | Provision of Services
|
1 | ||||
| Section 1.03 | Quality and Scope of Services
|
1 | ||||
| Section 1.04 | Additional Services; Initial Costs.
|
2 | ||||
| Section 1.05 | Disclaimer of Warranties
|
2 | ||||
| Section 1.06 | Independent Contractor; Employees
|
3 | ||||
| Section 1.07 | Cooperation; Resources.
|
4 | ||||
| Section 1.08 | Information From the Company; No Duty of Verification
|
4 | ||||
| Section 1.09 | Exceptions to Xxxxxx’ Obligation to Perform.
|
4 | ||||
ARTICLE II |
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Cost of the Services |
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| Section 2.01 | Cost of the Services
|
5 | ||||
| Section 2.02 | Manner and Timing of Payments
|
6 | ||||
| Section 2.03 | Taxes
|
6 | ||||
| Section 2.04 | Access to Records
|
6 | ||||
ARTICLE III |
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Limitation of Liability; Indemnification |
||||||
| Section 3.01 | Limitation of Liability
|
6 | ||||
| Section 3.02 | Indemnification by the Company
|
7 | ||||
| Section 3.03 | Indemnification by Xxxxxx
|
7 | ||||
| Section 3.04 | Indemnification Procedures
|
7 | ||||
| Section 3.05 | Maximum Liability; Limitation of Damages
|
7 | ||||
ARTICLE IV |
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Term and Termination |
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| Section 4.01 | Term
|
8 | ||||
| Section 4.02 | Termination for Default
|
8 | ||||
| Section 4.03 | Termination by the Company
|
9 | ||||
| Section 4.04 | Effect of Termination
|
9 | ||||
| Section 4.05 | Survival
|
10 | ||||
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ARTICLE V |
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Confidentiality; Ownership of Data |
||||||
| Section 5.01 | Definitions of Confidential Information, Disclosing Party and Recipient
|
10 | ||||
| Section 5.02 | Use and Disclosure Limitations
|
10 | ||||
| Section 5.03 | Disclosure Required by Law
|
11 | ||||
| Section 5.04 | Relief
|
11 | ||||
| Section 5.05 | Other Related Matters
|
11 | ||||
ARTICLE VI |
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General Provisions |
||||||
| Section 6.01 | Governing Law and Venue; Waiver of Jury Trial
|
12 | ||||
| Section 6.02 | Severability
|
13 | ||||
| Section 6.03 | Amendment; Waiver
|
13 | ||||
| Section 6.04 | Assignment.
|
13 | ||||
| Section 6.05 | No Third-Party Beneficiaries
|
13 | ||||
| Section 6.06 | Notices
|
14 | ||||
| Section 6.07 | Entire Agreement; Controlling Provisions
|
14 | ||||
| Section 6.08 | Headings
|
15 | ||||
| Section 6.09 | Counterparts
|
15 | ||||
| Section 6.10 | Construction
|
15 | ||||
| Section 6.11 | Management of Enforcement by the Company
|
15 | ||||
| Section 6.12 | Effectiveness
|
15 | ||||
| Section 6.13 | Fees
|
15 | ||||
| Section 6.14 | Force Majeure
|
16 | ||||
| Section 6.15 | Compliance with Law
|
16 | ||||
| Section 6.16 | No Set-Off
|
16 | ||||
| Section 6.17 | Future Litigation and Other Proceedings
|
16 | ||||
| Section 6.18 | Facilities and Systems Security
|
17 | ||||
| Schedule I | Services
|
Schedule I-1 | ||||
| Exhibit A | Wire Transfer Instructions
|
Exhibit A-1 | ||||
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This
TRANSITION SERVICES AGREEMENT (this
“Agreement”), dated as of January 26,
2007 (the
“Effective Date”), is made by and between XXXXXX CORPORATION, a Delaware corporation
(“Harris”), and XXXXXX STRATEX NETWORKS, INC., a Delaware corporation (the
“Company”).
RECITALS
WHEREAS,
Harris, the Company, Stratex Networks, Inc., a Delaware corporation
(“Stratex”), and Stratex Merger Corp. a
Delaware corporation and wholly owned subsidiary of the Company, have
entered into an Amended and Restated Formation, Contribution and
Merger Agreement, dated as of December 18, 2006, as amended by
that certain letter agreement, dated January 26, 2007 (the
“Formation Agreement”), among the parties
thereto, pursuant to which the Company was formed to acquire Stratex
pursuant to the Merger (as defined in the Formation Agreement) and to receive the Contributed
Assets (as defined in the Formation Agreement) from Xxxxxx in the Contribution Transaction (as
defined in the Formation Agreement), in each case on the terms and subject to the conditions set
forth in the Formation Agreement; and
WHEREAS, Harris and Stratex would not have entered into the Formation Agreement without the
undertakings contained in this Agreement and the execution and delivery of this Agreement is a
condition to closing under the Formation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants in the Agreements,
the parties agree as follows:
ARTICLE I
SERVICES
SERVICES
Section 1.01 Definitions. All capitalized terms used but not defined in this
Agreement shall have the meanings assigned to them in the Formation Agreement; provided, however,
that notwithstanding the foregoing neither the Company nor any of its Subsidiaries shall be deemed
to be a Subsidiary or Affiliate of Xxxxxx or any of its other Subsidiaries or Affiliates for
purposes of this Agreement.
Section 1.02 Provision of Services. Except as otherwise provided in this Agreement,
on the terms and subject to the conditions set forth in this Agreement, Xxxxxx shall, or shall
cause one of its Affiliates to, provide to the Company and its Affiliates, for use in connection
with the MCD Business as such business is conducted by the Company following the Closing, each of
the Services described on Schedule I attached to this Agreement (each, a “Service”
and collectively, the “Services”), commencing on the date of this Agreement and continuing
through the Term (as defined in Section 4.01 of this Agreement) unless (a) otherwise
specified for a particular Service on Schedule I, (b) a particular Service is terminated in
accordance with to Section 4.02 or Section 4.03, (c) otherwise mutually agreed to
by the parties in writing, or (d) this Agreement is terminated in accordance with the terms and
conditions hereof prior to the expiration of the Term.
Section 1.03 Quality and Scope of Services. The Services shall be performed in a
manner, amount, and quality substantially consistent with the manner, amount or quality of the
Services as was being provided by Xxxxxx to the MCD Business during the six-month period
prior to the Effective Date, and in no event shall Xxxxxx shall have an obligation to perform
any Service in any other manner, amount or quality (enhanced, increased or otherwise) unless
expressly so specified in Schedule I with respect to a particular Service (including any
advantage of systems, equipment, facilities, training, services or improvements procured, obtained
or made by Xxxxxx after the Effective Date). Notwithstanding anything to the contrary contained in
this Agreement, with respect to any Service, Xxxxxx may, in its sole discretion and at no
additional charge to the Company, (i) perform such Service substantially consistent with any
improved or enhanced practice as Xxxxxx xxxxx reasonably prudent, or (ii) otherwise make changes
from time to time in the manner in which such Service is provided if (A) Xxxxxx is making similar
changes in the manner in which such Service is provided for its own businesses, (B) Xxxxxx
furnishes to the Company substantially the same notice Xxxxxx provides to its own businesses with
respect to such changes, and (C) such changes do not create a substantial risk that such changes
would reasonably result in a material disruption of the MCD Business as conducted by the Company
following the Closing or in the incurrence of a material loss or liability by the Company.
Section 1.04 Additional Services; Initial Costs.
(a) In the event that the Company has determined that it requires an increase or
enhancement in the manner, amount or quality of any Service as compared to the manner, amount or
quality of such Service as was being provided by Xxxxxx to the MCD Business during the six-month
period prior to the Effective Date, the Company shall notify Xxxxxx of such determination and
request that Xxxxxx so increase or enhance the manner, amount or quality, as the case may be, of
such Service. Following the receipt of such notification and request, Xxxxxx shall consider in
good faith such request by the Company to provide such incremental services; provided, however,
that this Section 1.04 shall in no way modify or increase Xxxxxx’ obligations under
Section 1.03 and Xxxxxx shall have the sole right to determine the scope, terms and fees of
such incremental services to the extent that Xxxxxx elects to increase or enhance the manner,
amount or quality of any Service. If Xxxxxx agrees to provide such incremental services,
Schedule I to this Agreement shall be amended, without further action by any party hereto,
to reflect such incremental services, the scope and terms thereof and the Service Fees therefor
(such fees to be determined in accordance with Section 2.01 as if such incremental services
had been included on Schedule I as of the date hereof).
(b) If Xxxxxx or any of its Affiliates are required to (i) modify, increase, alter,
obtain or otherwise change any software, process, method, asset or system (for example, because
previously shared hardware capacity must be duplicated) or staffing or (ii) enhance their
facilities or training, in order to perform the Services pursuant to Section 1.02, then
Xxxxxx shall obtain the Company’s prior written approval of any additional cost or expense that
Xxxxxx or any of its Affiliates expects to incur in connection with such increase or enhancement,
and the Company shall pay any such additional cost or expense incurred by Xxxxxx or such Affiliate
to provide such Services to the extent so approved by the Company, and if the Company does not
approve such additional cost or expense, neither Xxxxxx nor any of its Affiliates shall have any
obligation to provide the Services that require such increases for their respective performances.
Section 1.05 Disclaimer of Warranties. The Company acknowledges and agrees that
Xxxxxx does not as part of its usual or regular conduct of business provide any or all of the
Services, or any related services, on a commercial basis and that Xxxxxx does not warrant or
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assume responsibility for its provision of any or all of the Services. EXCEPT AS OTHERWISE
PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY
KIND. XXXXXX MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, AVAILABILITY,
RELIABILITY, SECURITY, PERFORMANCE OR ADEQUACY OF THE SERVICES, AND XXXXXX MAKES NO EXPRESS,
STATUTORY OR IMPLIED REPRESENTATIONS OR WARRANTIES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES, SYSTEM INTEGRATION, ACCURACY, WORKMANLIKE
EFFORT AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND XXXXXX HEREBY
EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY XXXXXX OR THEIR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY
OR IN ANY WAY INCREASE THE SCOPE OF XXXXXX’ OBLIGATIONS UNDER THIS AGREEMENT.
Section 1.06 Independent Contractor; Employees. The parties acknowledge and agree
that each party is engaged in a business that is independent from that of the other party and that
Xxxxxx shall perform the Services under this Agreement as an independent contractor with the sole
right to supervise, manage, operate, control and direct the performance of the Services, including
the right to designate which such resources Xxxxxx shall assign to perform any Service and the
right to remove and replace any such resources at any time or, subject to Section 6.04(b),
to designate a third party provider to perform such Service. Xxxxxx shall have and maintain
exclusive control over all of its own employees, agents, subcontractors and operations as of the
Effective Date. Xxxxxx shall be solely responsible for payment of compensation to its employees
and for any injury to them in the course of their employment. Xxxxxx shall assume full
responsibility for payment of all federal, state and local taxes or contributions imposed or
required under unemployment insurance, social security and income tax Laws with respect to such
employees. The Company shall have and maintain exclusive control over all of its own employees,
agents, other contractors and operations as of the Effective Date. The Company shall be solely
responsible for payment of compensation to its employees and for any injury to them in the course
of their employment. The Company shall assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required under unemployment insurance, social
security and income tax Laws with respect to such employees. Xxxxxx has no authority (express,
implied or apparent) to represent the Company as to any matters or to incur any obligations or
liability on behalf of the Company, and Xxxxxx shall not be, act as, purport to act as, or be
deemed to be, the agent, representative, employee or servant of the Company. The Company has no
authority (express, implied or apparent) to represent Xxxxxx as to any matters or to incur any
obligations or liability on behalf of Xxxxxx, and the Company shall not be, act as, purport to act
as, or be deemed to be, the agent, representative, employee or servant of Xxxxxx. No partnership,
joint venture, association, alliance, syndicate, or other entity, or fiduciary, employee/employer,
principal/agent or any relationship other than that of independent contractors is created hereby,
expressly or by implication.
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Section 1.07 Cooperation; Resources.
(a) Subject to the terms and conditions set forth in this Agreement, Xxxxxx and the
Company shall use good faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such good faith cooperation shall include, subject to
Section 5.01, (i) exchanging information reasonably requested by the other party
(including such information reasonably requested in connection with any internal or external audit,
whether in the United States or any other country); (ii) providing electronic access to data
systems used in connection with the Services; (iii) performing true-ups and adjustments; and (iv)
making available, as reasonably requested by the other party, timely decisions, approvals and
acceptances, and obtaining all consents, licenses, sublicenses or approvals necessary or desirable
in order to permit each party to perform its obligations under this Agreement in a timely and
efficient manner. The Company shall use reasonable best efforts to provide information and
documentation sufficient for Xxxxxx to satisfy its obligations under this Agreement. In connection
with the Services, the Company shall make reasonably available for consultation with Xxxxxx those
employees and consultants or other service providers of the Company reasonably necessary for the
effective provision by Xxxxxx of such Services.
(b) In the event any cost is incurred by Xxxxxx or any of its Affiliates in
connection with obtaining or soliciting the consent of any third party in accordance with
Section 1.07(a), such cost shall be paid by the Company and the Company shall reimburse
Xxxxxx or any of its Affiliates, as the case may be, upon receipt of an invoice from Xxxxxx or its
Affiliates, as applicable, with respect to such costs.
Section 1.08 Information From the Company; No Duty of Verification. Xxxxxx shall not
be liable for any impairment of any Service caused by its not receiving information, either timely
or at all, or by its receiving inaccurate or incomplete information from the Company that is
required or reasonably requested by Xxxxxx. In the absence of actual knowledge to the contrary,
Xxxxxx shall not have any responsibility for verifying the correctness of any information given to
it by or on behalf of the Company for the purpose of providing any Service.
Section 1.09 Exceptions to Xxxxxx’ Obligation to Perform.
(a) Notwithstanding anything to the contrary contained in this Agreement, Xxxxxx
shall not be required to provide such Service (i) to the extent the performance of such Service
would require Xxxxxx to violate any applicable Law or would result in the breach of any contract or
agreement due to a failure to obtain necessary consents, licenses, sublicenses, or approvals
pursuant to Section 1.07; (ii) if Xxxxxx reasonably determines that providing such Service
would result in a significant disruption of Xxxxxx’ or any of its Affiliates’ businesses or
operations, would materially increase the scope of Xxxxxx’ responsibilities under this Agreement,
or would be impracticable; or (iii) if any such Service unreasonably inhibits any employee of
Xxxxxx or any of its Affiliates from discharging his or her obligations to Xxxxxx or any of its
Affiliates or places any employee of Xxxxxx or any of its Affiliates in a conflict of interest with
respect to his or her employment with Xxxxxx or any of its Affiliates. If Xxxxxx reasonably
determines that it is unable to provide any Service in accordance with the terms of this Agreement
as a result of the circumstances set forth in subparagraphs (i) through (iii) above, the parties
shall cooperate in good faith to determine the best alternative approach. Until such
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alternative approach is found or the problem is otherwise resolved to the satisfaction of the
parties, Xxxxxx shall use commercially reasonable efforts to provide a comparable service, or in
the case of data systems, support the function to which the data system relates or permit the
Company to have reasonable access to the data system so that the Company can support the function
itself. In such case, the parties shall negotiate in good faith to determine the amounts to be
paid for any such comparable service (such fees to be determined in accordance with Section
2.01, but including any out-of-pocket costs incurred by Xxxxxx in providing or arranging for
such comparable service). To the extent that Xxxxxx provides any comparable services to the
Company pursuant to this Section 1.09 and the fees for any such comparable service (as
described in the immediately preceding sentence) exceed the Service Fee for the corresponding
Service that Xxxxxx determined it was unable to provide pursuant to this Section 1.09, the
parties shall share such excess amount equally.
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) if the Company elects to decommission, replace, modify or change its information
technology or communications systems, networks, equipment, configurations, processes, procedures,
practices or any other aspect of its business relationship relating to a Service in a manner that
adversely affects Xxxxxx’ ability to provide such Service as required hereunder, then Xxxxxx shall
have no liability whatsoever with respect to the effectiveness or quality of such Service and shall
be excused from performance of such Service until the Company mitigates the adverse effect of such
change, and the Company shall be responsible for all direct expenses incurred by Xxxxxx in
connection with the cessation and, if applicable, the resumption of such Service; and
(ii) Xxxxxx may suspend performance of any Service and the Company’s access to information
technology or communications systems used by Xxxxxx if, in Xxxxxx’ reasonable judgment, the
integrity, security or performance of such systems, or any data stored thereon, is being or is
likely to be jeopardized by the activities of the Company, its employees, agents, representatives
or contractors.
ARTICLE II
COST OF THE SERVICES
COST OF THE SERVICES
Section 2.01 Cost of the Services. In consideration of the provision of the
Services, the Company shall pay to Xxxxxx, without set-off, a service fee for each such Service in
the amount equal to (a) all internal costs allocated to the maximum extent reasonably practicable
to the provision of such Service on a fully allocated basis consistent with current charges to the
MCD Business, and (b) any additional out-of-pocket costs or expenses incurred by Xxxxxx in
connection with the provision of such Service, including without limitation, payments or costs for
an ongoing license, grant or provision of rights or services (all such fees with respect to each
Service, the “Service Fee”, and collectively for all Services, the “Service Fees”),
in each case, with respect to the relevant payment period set forth on Schedule I. The
Company shall not be obligated to pay for any individual Service that was properly terminated
pursuant to Section 4.02 or Section 4.03 unless the Company knowingly accepts the
benefits of such Services following any such termination. The Company will pay Xxxxxx the Service
Fee relating to any terminated Service until the effective date of termination.
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Section 2.02 Manner and Timing of Payments. All payments shall be made, without
set-off, within thirty (30) days after receipt of an invoice therefor. Xxxxxx shall send invoices
on a monthly basis for payments to be made under this Agreement. Such invoices shall specify in
reasonable detail the costs and expenses to be reimbursed by the Company, and Xxxxxx shall provide
such supporting detail as the Company may from time to time reasonably request. All payments made
by the Company under this Agreement shall be by wire transfer of the payment amount to Xxxxxx’
account identified in Exhibit A attached hereto or other account notified in writing by
Xxxxxx to the Company, or if requested in writing by Xxxxxx, by check. All such payments shall be
effective upon receipt. If payment on any invoice is not received as specified herein on the
applicable date, such amount shall be subject to a late payment charge calculated at one percent
(1%) per month from the due date until payment is made. If the Company disputes in good faith any
portion of the amount due on any invoice, then the Company shall notify Xxxxxx in writing of the
nature and basis of the dispute within 10 Business Days after the Company’s receipt of such
invoice. If no notification is provided to Xxxxxx in accordance with the immediately preceding
sentence, the invoiced amount shall be deemed to be accurate and correct and shall not be subject
to dispute or contest by the Company or any Affiliate thereof. In the event notification is so
provided to Xxxxxx, the parties shall use their reasonable best efforts to resolve the dispute
prior to the payment due date.
Section 2.03 Taxes. Unless the Company provides Xxxxxx with a proper tax exemption
certificate, the Company shall be responsible for and pay all applicable taxes (including without
limitation any sales or value added taxes) that may be imposed with respect to or in connection
with the provision of the Services, except for income taxes imposed on Xxxxxx for payment received
with respect to such Services. To the extent Xxxxxx pays or is required to pay any such taxes that
are the responsibility of the Company in accordance with the preceding sentence, the Company shall
reimburse and indemnify Xxxxxx with respect to all amounts (including without limitation attorneys
fees and costs of investigation) incurred in connection with the provision of such Services.
Section 2.04 Access to Records. Xxxxxx shall keep reasonable books and records of
all Services for the Company to verify all charges made by Xxxxxx under this Agreement and to
comply with all applicable requirements of Law. Xxxxxx shall, upon the Company’s reasonable
request and at the Company’s sole cost and expense, make such books and records available to the
Company, upon reasonable notice and during normal business hours for the sole purpose of the
Company’s verifying any charges made by Xxxxxx hereunder or complying with any applicable
requirement of Law. Nothing in this Section 2.04 or Section 4.05 shall require
Xxxxxx to maintain its books and records relating to the Services provided to the Company under
this Agreement indefinitely or in a manner, or for a length of time, inconsistent with the manner
or length of time that it maintains its books and records with respect to its other businesses.
ARTICLE III
LIMITATION OF LIABILITY; INDEMNIFICATION
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 3.01 Limitation of Liability. The Company agrees that none of Xxxxxx and its
Affiliates and their respective, officers, directors, employees, stockholders, agents,
representatives, successors and assigns (each, a “Xxxxxx Indemnified Person” and
collectively, the “Xxxxxx Indemnified Persons”) shall have any liability, whether direct or
indirect, in
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contract or tort or otherwise, to the Company or any of its Affiliates for or in connection
with the Services provided or to be provided by any Xxxxxx Indemnified Person pursuant to this
Agreement or any other services provided by any Xxxxxx Indemnified Person, the transactions
contemplated by this Agreement, or any Xxxxxx Indemnified Person’s actions or inactions in
connection with any such Services, any such other services, or any such transactions, except for
damages which have directly resulted from such Xxxxxx Indemnified Person’s gross negligence or
willful misconduct in connection with any such Services, other services, transactions, actions or
inactions.
Section 3.02 Indemnification by the Company. The Company shall indemnify, defend and
hold harmless each Xxxxxx Indemnified Person from and against all damages, claims, losses, charges,
actions, suits, proceedings, deficiencies, taxes, interest, penalties and reasonable costs and
expenses (collectively, “Losses”), and shall reimburse each Xxxxxx Indemnified Person for
all reasonable expenses as they are incurred in investigating, preparing, pursuing, or defending
any claim, action, proceeding, or investigation, whether or not in connection with pending or
threatened litigation and whether or not any Xxxxxx Indemnified Person is a party (each, an
“Action”), related to, arising out of, or in connection or associated with Services
provided or to be provided by any Xxxxxx Indemnified Person pursuant to this Agreement or any other
services provided by any Xxxxxx Indemnified Person, the transactions contemplated by this
Agreement, or any Xxxxxx Indemnified Person’s actions or inactions in connection with any such
Services, any such other services, or any such transactions; provided that no Company Indemnified
Person will be responsible for any damages of any Xxxxxx Indemnified Person that have directly
resulted from such Xxxxxx Indemnified Person’s gross negligence or willful misconduct in connection
with any such Services, other services, transactions, actions, or inactions.
Section 3.03 Indemnification by Xxxxxx. Xxxxxx shall indemnify, defend and hold
harmless the Company and its Affiliates and their respective, officers, directors, employees,
stockholders, agents, representatives, successors and assigns (each, a “Company Indemnified
Person” and collectively, the “Company Indemnified Persons”) from and against all
Losses, and shall reimburse each Company Indemnified Person for all reasonable expenses as they are
incurred in investigating, preparing, pursuing or defending any Action, arising directly out of the
gross negligence or willful misconduct of any Xxxxxx Indemnified Person in connection with the
Services provided or to be provided pursuant to this Agreement.
Section 3.04 Indemnification Procedures. The indemnification procedures set forth in
Section 12.2(b) and Section 12.4 of the Formation Agreement shall apply equally to any claims for
indemnification brought pursuant to this Article 3.
Section 3.05 Maximum Liability; Limitation of Damages. Except to the extent such
liability arises directly out of a Xxxxxx Indemnified Person’s gross negligence or willful
misconduct, the maximum aggregate liability of all Xxxxxx Indemnified Persons under or in
connection with this Agreement, in any and all events, shall be limited in the aggregate to the
Service Fees paid by the Company and actually received by Xxxxxx under this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR AT LAW OR IN EQUITY, IN NO EVENT
SHALL ANY XXXXXX INDEMNIFIED PERSON BE LIABLE FOR ANY LOSSES THAT ARE NOT REASONABLY FORESEEABLE OR
FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR
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CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF
REVENUES, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO
DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER LOSS) AS A RESULT OF OR ARISING FROM OR
RELATING TO THIS AGREEMENT, THE PROVISION OF OR THE FAILURE TO PROVIDE THE SERVICES OR ANY OTHER
SERVICES, THE TERMINATION OF THIS AGREEMENT OR ANY SERVICE, OR ANY TRANSACTION CONTEMPLATED BY THIS
AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE), STRICT LIABILITY,
BREACH OF REPRESENTATION OR WARRANTY OR COVENANT, OR INDEMNIFICATION OR OTHERWISE, AND REGARDLESS
OF WHETHER SUCH XXXXXX INDEMNIFIED PERSON KNEW OF OR WAS ADVISED AT THE TIME OF BREACH OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE COMPANY, ON BEHALF OF ITSELF AND EACH OTHER COMPANY
INDEMNIFIED PERSON, HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE THE COMPANY OR ANY SUCH
COMPANY INDEMNIFIED PERSON OF AN ADEQUATE REMEDY.
ARTICLE IV
TERM AND TERMINATION
TERM AND TERMINATION
Section 4.01 Term. The term of this Agreement shall commence on the Effective Date
and shall terminate with respect to each Service as set forth on Schedule I with respect to
such Service; provided that this Agreement shall terminate with respect to all Services provided
hereunder upon the earlier of (a) such time when all Services to be provided by Xxxxxx under this
Agreement have been terminated (or the terms of which have expired) in accordance with the terms of
this Agreement and (b) the one year anniversary of the Effective Date (the “Term”), unless
this Agreement is terminated sooner in accordance with Section 4.02 or Section 4.03
or extended by mutual written agreement of the parties, which agreement shall set forth the length
of the desired extension, the scope of the Services to be provided during such extension, and any
fees relating to such Services, including any increase in such fees. Any termination or expiration
of this Agreement with respect to any particular Service shall not terminate this Agreement with
respect to any other Service provided under this Agreement. Notwithstanding any other provision of
this Agreement, upon written notice received by Harris at least 30 days prior to the termination of
the Information Technology Services set forth on Schedule I in accordance with this
Agreement, Harris shall continue to provide such Information Technology Services that were provided
to the Company immediately prior to such termination for an additional six (6) month period;
provided, however, that Section 2.01 shall not apply during such six (6) month period and
the parties shall negotiate in good faith to determine a commercially reasonable fee for such
services during that period.
Section 4.02 Termination for Default. In the event: (a) the Company shall fail to
pay for any or all Services in accordance with the terms of this Agreement (and such payment is not
disputed by the Company in good faith in accordance with Section 2.02); (b) of any default
by either party, in any material respect, in the due performance or observance by it of any of the
other terms, covenants or agreements contained in this Agreement; or (c) either party shall
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become or be adjudicated insolvent and/or bankrupt, or a receiver or trustee shall be
appointed for either party or its property or a petition for reorganization or arrangement under
any bankruptcy or insolvency Law shall be approved, or either party shall file a voluntary petition
in bankruptcy or shall consent to the appointment of a receiver or trustee (in each such case, the
“Defaulting Party”); then any non-Defaulting Party shall have the right, at its sole
discretion, (i) in the case of a default under clause (c), to terminate immediately the applicable
Service(s) and/or this Agreement and its participation with the Defaulting Party under this
Agreement; and (ii) in the case of a default under clause (a) or (b), to terminate the applicable
Service(s) and/or this Agreement and its participation with the Defaulting Party under this
Agreement if the Defaulting Party has failed to (x) cure the default, within 30 days after
receiving written notice of such default, or if the default (except for defaults as a result of
failure to make payment) is such that it will take more than 30 days to cure, within an extended
time period which shall be not longer than what is reasonably necessary to effect performance or
compliance or (y) take substantial steps towards and diligently pursue the curing of the default.
Section 4.03 Termination by the Company. This Agreement may be terminated with
respect to all Services by the Company prior to the end of the Term upon the expiration of the
longer of (a) thirty (30) days’ prior written notice to Xxxxxx or (b) the longest notice period
applicable to any Service that has not been terminated or expired in accordance with this Agreement
at the time of such termination. Any particular Service may be separately terminated by the
Company upon the expiration of the longer of (a) thirty (30) days’ prior written notice to Xxxxxx
or (b) the required prior written notice to Xxxxxx as specified for such Service on Schedule
I.
Section 4.04 Effect of Termination. Upon expiration or termination of this Agreement
or of any Service provided hereunder, all rights and obligations of the parties shall cease under
the Agreement with respect to all Services (in the case of a termination of the Agreement) or with
respect to such Service (in the case of a termination of a particular Service), except as provided
in Section 4.05 and except that the Company shall pay to Xxxxxx within thirty (30) calendar
days of the expiration or termination of this Agreement or any Service, as the case may be, all
amounts that are or that will become due and payable as a result of the provision of the Services
pursuant to this Agreement in the manner set forth in Article 2. Upon notice of
termination of this Agreement in accordance with its terms with respect to any Service for any
reason or, in the event of expiration, for a reasonable period time prior to such expiration,
Xxxxxx will reasonably cooperate, at the Company’s expense, in order to minimize the disruption to
the business of both parties and to effect an orderly transition and transfer of the responsibility
for such Service(s) to the Company or to a third party designated by the Company, including the
migration of the data described in Section 5.05 to the Company or its third party designee.
Upon termination or expiration of this Agreement or any Service, as the case may be, each party,
at the request of the other, shall return or destroy, at the option of the party in possession of
such Confidential Information (as defined herein), all Confidential Information in its possession
or control which belongs to the other party or any other information that contains or comprises the
other party’s information and to which the returning party does not retain rights hereunder (except
one copy of which may be retained in such files for archival purposes). Notwithstanding anything
to the contrary contained in this Agreement, upon expiration or termination of this Agreement, the
Company shall no longer have any access to Xxxxxx’ information, data, systems and other assets that
are not Contributed Assets. If requested by the other party, an appropriate
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officer of the party in possession of such information returned or destroyed pursuant to this
paragraph will certify to the other party that all such information has been so delivered or
destroyed.
Section 4.05 Survival. Notwithstanding anything in this Agreement to the contrary,
(a) Article 2, Article 3, Section 4.04, Section 4.05, Article
5 and Article 6 shall survive the expiration or termination of this Agreement; and (b)
the termination or expiration of this Agreement shall not act as a waiver of any breach of this
Agreement and shall not act as a release of either party for any liability or obligation incurred
under this Agreement through the effective date of the termination or expiration; provided,
however, that neither party shall be liable for damages of any sort resulting solely from
terminating this Agreement in accordance with its terms.
ARTICLE V
CONFIDENTIALITY; OWNERSHIP OF DATA
CONFIDENTIALITY; OWNERSHIP OF DATA
Section 5.01 Definitions of Confidential Information, Disclosing Party and Recipient.
“Confidential Information” shall mean any information of a party (the “Disclosing
Party”) or its customers designated as confidential and received or obtained by the other party
(the “Recipient”) as a result of the exercise of the Recipient’s rights or the performance
of the Recipient’s obligations under this Agreement, and includes, without limitation, any
business, marketing, technical and scientific information, trade secrets, processes, designs, data,
formulae, plans, prototypes, software, source code, customer information and lists, research,
business opportunities, agreements and other information related to or arising from the Services
and which may be in any form or medium; provided, that any such information disclosed in
non-written form shall be reduced to writing within thirty (30) days of its disclosure to the
Recipient. In addition to the foregoing, Xxxxxx agrees that any information relating primarily to
the operations or affairs of the MCD Business as such business is conducted by the Company
following the Closing that is disclosed by the Company to Xxxxxx in the course of performing
Services under this Agreement and that is or should be reasonably understood to be confidential or
proprietary to the Company shall be “Confidential Information” of the Company under this Agreement,
regardless of whether such information is designated as confidential or reduced to writing.
Notwithstanding the foregoing, “Confidential Information” shall not include any information that
(a) becomes generally available other than as a result of a breach of the provisions of this
Article 5; (b) was received or becomes available on a nonconfidential basis to the
Recipient from a source, other than the Disclosing Party or its customers, that to the Recipient’s
knowledge is not or was not bound to hold such information confidential, (c) was acquired or
developed independently by the Recipient without the use of the Disclosing Party’s Confidential
Information and without violating this Article 5 or any other confidentiality agreement
with the Disclosing Party; or (d) is approved in writing for release or disclosure to the public by
the Disclosing Party.
Section 5.02 Use and Disclosure Limitations. Except pursuant to Section
5.03, unless instructed otherwise by the Disclosing Party in writing, any Confidential
Information received or obtained by the Recipient as a result of the exercise of its rights or the
performance of its obligations under this Agreement shall be kept in confidence and not be used for
any purpose other than to provide or receive, as the case may be, the Services under this Agreement
or
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otherwise as required for the Recipient to perform its obligations under this Agreement and
shall only be disclosed to others if the Recipient reasonably believes such disclosure is necessary
or appropriate in the course of providing or receiving, as the case may be, such Services and only
under obligations of confidence. The Recipient shall treat the Confidential Information of the
Disclosing Party in the same manner as the Recipient treats and holds its own confidential
information of a similar nature (in the case of Xxxxxx, such manner shall be determined only with
respect to the commercial segment(s) of Xxxxxx’ businesses), but in no case with less than a
commercially reasonable standard of care.
Section 5.03 Disclosure Required by Law. In the event that disclosure of
Confidential Information is compelled by judicial or administrative process or required by
operation of Law, the Recipient will (a) if permitted by such process or Law, provide prompt
written notice to the Disclosing Party and, at the Disclosing Party’s cost and expense, assist the
Disclosing Party in seeking a protective order or other similar remedy; (b) furnish only that
portion of the Confidential Information that is, on the advice of its legal counsel, required to be
disclosed pursuant to such process or Law; and (c) exercise reasonable efforts in good faith to
ensure that confidential treatment is accorded to such disclosed Confidential Information.
Section 5.04 Relief. The Recipient agrees that unauthorized disclosure or use of the
Confidential Information may cause irreparable harm and result in significant commercial damage to
the Disclosing Party. The parties agree that the Disclosing Party shall be entitled to seek
equitable relief, including injunction and specific performance, in the event of any breach of the
covenants regarding Confidential Information, in addition to all other remedies available at law
and in equity.
Section 5.05 Other Related Matters. With respect to any Service, the Company agrees
that (i) all software, hardware or data store, procedures and materials provided to the Company by
or on behalf of Xxxxxx in connection with such Service are solely for the use of the Company solely
for purposes of using such Services during the Term (provided that benefits received by third
parties in the ordinary course of business conducted with the Company shall not be subject to this
Section 5.05); (ii) title to any software, hardware or data store or any other intellectual
property or proprietary right of any kind used in performing such Service shall, as between the
Company and Xxxxxx, remain in Xxxxxx; (iii) the Company shall not copy, modify, reverse engineer,
decompile, distribute or in any way alter or make derivative works of any software, hardware or
data store used in performing such Service without Xxxxxx’ prior written consent; and (iv) the
Company shall comply with any and all usage guidelines pertaining to any Service and provided by or
on behalf of Xxxxxx, including without limitation, any and all usage guidelines pertaining to
software, data, or other intellectual property or proprietary rights. Notwithstanding the
foregoing, any assets acquired or purchased by the Company for its own account, shall not be
subject to this Section 5.05. Except as expressly set forth in this Agreement, nothing in
this Agreement or in the performance or use of the Services under this Agreement shall be deemed to
transfer, assign or otherwise convey any rights, title or interests in or to any intellectual
property or proprietary rights of one party to the other party. Nothing in this Article 5
shall be construed as obligating any party hereto to disclose its Confidential Information to any
other party or person, or as granting to or conferring on any other party or person, expressly or
by implication, any rights or license to the first party’s Confidential Information; provided that
the parties acknowledge that, in order to perform the Services, Xxxxxx shall have custody of and
usage of
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certain of the Company’s Confidential Information and the Company hereby grants to Xxxxxx the
right to do so in accordance with this Agreement. Xxxxxx agrees that all right, title and interest
in and to all records, data, files, input materials, reports, forms and other data received,
computed, used and/or stored pursuant to this Agreement which relate to the MCD Business as
conducted by the Company after the Effective Date are the exclusive property of the Company.
ARTICLE VI
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 6.01 Governing Law and Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to
the jurisdiction of the courts of the State of Delaware and the Federal courts of the United States
of America located in the State of Delaware solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any
such document, that it is not subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that the venue thereof may not be appropriate or
that this Agreement or any such document may not be enforced in or by such courts, and the parties
hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard
and determined in such a Delaware State or Federal court. The parties hereby consent to and grant
any such court jurisdiction over the person of such parties and, to the extent permitted by Law,
over the subject matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section 6.06 or in
such other manner as may be permitted by Law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.01.
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Section 6.02 Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, that provision will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend
this Agreement to replace the unenforceable language with enforceable language which as closely as
possible reflects such intent.
Section 6.03 Amendment; Waiver. Unless otherwise expressly provided herein, this
Agreement may be amended or any performance, term or condition waived in whole or in part only by a
writing signed by persons authorized to so bind each party (in the case of an amendment) or the
waiving party (in the case of a waiver). No failure or delay by any party to take any action with
respect to a breach by another party of this Agreement or a default by another party hereunder
shall constitute a waiver of the former party’s right to enforce any provision of this Agreement or
to take action with respect to such breach or default or any subsequent breach or default. Waiver
by any party of any breach or failure to comply with any provision of this Agreement by another
party shall not be construed as, or constitute, a continuing wavier of such provisions, or a waiver
of any other breach of or failure to comply with any other provisions of this Agreement.
Section 6.04 Assignment.
(a) Except as provided in Section 6.04(b), no party may assign this
Agreement or any rights, benefits, obligations or remedies hereunder without the prior written
consent of the other party hereto, except that no such consent shall be required for a transfer by
operation of Law in connection with a merger or consolidation of such party. Any attempt so to
assign or to delegate any of the foregoing without such consent shall be void and of no effect.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the
parties hereto and their respective successors and permitted assigns.
(b) Notwithstanding the limitation in Section 6.04(a), Xxxxxx may
subcontract any function or Service to be performed by Xxxxxx under this Agreement to a third party
service provider, to the extent that Xxxxxx is also using such third party service provider to
perform such subcontracted function or Service for Xxxxxx or for any of Xxxxxx’ Affiliates;
provided, however, that such subcontracting shall not relieve Xxxxxx from any of its obligations to
the Company under this Agreement; and provided, further, that upon the Company’s written request
and without prejudice to the Company’s direct rights against any such third party service provider,
Xxxxxx shall use commercially reasonable efforts to pursue any warranty or indemnity under any
agreement Xxxxxx may have with such a third party service provider on the Company’s behalf and at
the Company’s request with respect to any Service provided to the Company by such third party
service provider and the Company shall reimburse Xxxxxx for all reasonable out-of-pocket costs
incurred by Xxxxxx in connection with pursuing any such warranty or indemnity.
Section 6.05 No Third-Party Beneficiaries. Except for the indemnification rights
under Article 3 of this Agreement, this Agreement is intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement is intended or shall be construed to give any other Person any
legal or equitable right, remedy, or claim under or in respect to this Agreement or any provision
herein contained.
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Section 6.06 Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered personally or sent by
registered or certified mail or by overnight courier, postage prepaid, or by facsimile:
if to Xxxxxx:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxx.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
fax: (000) 000-0000
0000 Xxxx XXXX Xxxx.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
fax: (000) 000-0000
if
to the Company:
Xxxxxx Stratex Networks, Inc.
Research Triangle Park
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
fax: (000) 000-0000
Xxxxxx Stratex Networks, Inc.
Research Triangle Park
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
fax: (000) 000-0000
or to such other Persons or addresses as may be designated in writing by the party to receive such
notice as provided above. Any notice, request, instruction or other document given as provided
above shall be deemed given to the receiving party upon actual receipt, if delivered personally;
three (3) Business Days after deposit in the mail, if sent by registered or certified mail; upon
confirmation of successful transmission if sent by facsimile (provided that if given by facsimile
such notice, request, instruction or other document shall be followed up within one (1) Business
Day by dispatch pursuant to one of the other methods described herein); or on the next Business Day
after deposit with a nationally-recognized overnight courier, if sent by nationally-recognized
overnight courier.
Section 6.07 Entire Agreement; Controlling Provisions. This Agreement and any
Schedules and Exhibits attached hereto constitute the entire agreement between the parties relating
to the subject matter hereof and thereof and any and all prior arrangements, representations,
promises, understandings and conditions in connection with said matters and any representations,
promises or conditions not expressly incorporated herein or therein or expressly made a part hereof
or thereof shall not be binding upon any party. If there is any conflict or
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inconsistency between the terms and conditions set forth in the main body of this Agreement
and any of the Exhibits to this Agreement, the provisions of the Exhibits shall control with
respect to the rights and obligations of the parties regarding the Services. If there is any
conflict or inconsistency between the terms and conditions of this Agreement and the Formation
Agreement, the provisions of this Agreement shall control solely with respect to the rights and
obligations of the parties regarding the Services.
Section 6.08 Headings. The headings in this Agreement are included for convenience
of reference only and shall not in any way limit or otherwise affect the meaning or interpretation
of this Agreement.
Section 6.09 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same instrument.
Section 6.10 Construction. The table of contents and headings herein are for
convenience of reference only, do not constitute part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof. The parties and their respective counsel
have participated jointly in negotiating and drafting this Agreement. In the event that an
ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this Agreement. The
following provisions shall be applied wherever appropriate herein: (a) “herein,” “hereby,”
“hereunder,” “hereof” and other equivalent words shall refer to this Agreement as an entirety and
not solely to the particular portion of this Agreement in which any such word is used; (b) all
definitions set forth herein shall be deemed applicable whether the words defined are used herein
in the singular or the plural; (c) wherever used herein, any pronoun or pronouns shall be deemed to
include both the singular and plural and to cover all genders; (d) all accounting terms not
specifically defined herein shall be construed in accordance with GAAP; (e) any references herein
to a particular Section, Article, Exhibit or Schedule means a Section or Article of, or an Exhibit
or Schedule to, this Agreement unless another agreement is specified; and (f) the Exhibits and
Schedules attached hereto are incorporated herein by reference and shall be considered part of this
Agreement.
Section 6.11 Management of Enforcement by the Company. Xxxxxx agrees that a majority
of the Class A Directors (as defined in the Investor Agreement) shall have the sole and exclusive
right to exercise and enforce any rights under this Agreement which the Company or any of its
Subsidiaries are entitled to enforce against Xxxxxx after the Closing. In addition, any amendment
to or waiver of the terms of this Agreement by the Company in accordance with Section 6.03 shall
require the approval of a majority of the Class A Directors.
Section 6.12 Effectiveness. This Agreement shall become effective only when one or
more counterparts shall have been signed by each party and delivered to each other party.
Section 6.13 Fees. In any action or proceeding related to or arising out of the
enforcement of, or defense against, any provision of this Agreement, the non-prevailing party in
such action or proceeding shall pay, and the prevailing party shall be entitled to, all reasonable
out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the prevailing
party incurred in connection with such action or proceeding.
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Section 6.14 Force Majeure. Neither party hereto shall be liable in any matter for
failure or delay of performance of all or part of this Agreement (other than payment obligations),
directly or indirectly, owing to any acts of God; acts, orders, restrictions or interventions of
any civil, military or government authority; wars (declared or undeclared); hostilities; invasions;
revolutions; rebellions; insurrections; terrorist acts; sabotages; embargoes; epidemics; strikes or
other labor disturbances; civil disturbances; riots; fires; floods; storms; explosions;
earthquakes; nuclear accidents; power or other utility failures; disruptions or other failures in
internet and/or other telecommunication lines, networks and backbones; delay in transportation;
loss or destruction of property; changes in Laws, or any other causes or circumstances, in each
case to the extent beyond the reasonable control of such party (each, a “Force Majeure
Event”). Upon the occurrence of a Force Majeure Event, the party whose performance is
prevented or delayed shall provide written notice to the other party, and the parties shall
promptly confer, in good faith, on what action may be taken to minimize the impact, on both
parties, of such Force Majeure Event.
Section 6.15 Compliance with Law. Each party shall comply with applicable
requirements of Law applicable to its activities in connection with this Agreement (including,
without limitation, import and export control).
Section 6.16 No Set-Off. The obligations of the parties under this Agreement shall
not be subject to set-off for non-performance or any monetary or non-monetary claim by any party or
any of their respective Affiliates under any other agreement between the parties or any of their
respective Affiliates.
Section 6.17 Future Litigation and Other Proceedings. In the event that the Company
(or any of its officers or directors) or Xxxxxx (or any of its officers or directors) at any time
after the date hereof initiates or becomes subject to any litigation or other proceedings before
any governmental authority or arbitration panel with respect to which the parties have no prior
agreements (as to indemnification or otherwise), the party (and its officers and directors) that
has not initiated and is not subject to such litigation or other proceedings shall comply, at the
other party’s expense, with any reasonable requests by the other party for assistance in connection
with such litigation or other proceedings (including by way of provision of information and making
available of employees as witnesses). In the event that the Company (or any of its officers or
directors) and Xxxxxx (or any of its officers or directors) at any time after the date hereof
initiate or become subject to any litigation or other proceedings before any governmental authority
or arbitration panel with respect to which the parties have no prior agreements (as to
indemnification or otherwise), each party (and its officers and directors) shall, at its own
expense, coordinate its strategies and actions with respect to such litigation or other proceedings
to the extent such coordination would not be detrimental to its interests and shall comply, at the
expense of the requesting party, with any reasonable requests of the requesting party for
assistance in connection therewith (including by way of provision of information and making
available of employees as witnesses).
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Section 6.18 Facilities and Systems Security. If either party or its personnel will
be given access to the other party’s facilities, premises, equipment or systems, such party will
comply with all such other party’s written security policies, procedures and requirements made
available by each party to the other, and will not tamper with, compromise, or circumvent any
security or audit measures employed by such other party. Each party shall use its reasonable best
efforts to ensure that only those of its personnel who are specifically authorized to have access
to the facilities, premises, equipment or systems of the other party gain such access, and to
prevent unauthorized access, use, destruction, alteration or loss in connection with such access.
[Signature pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized respective
representatives to execute this Agreement as of the Effective Date first set forth above.
| XXXXXX CORPORATION |
||||
| By: | /s/ R. Xxxx Xxxxxxxx | |||
| Name: | R. Xxxx Xxxxxxxx | |||
| Title: | Vice President, Corporate Technology and Development | |||
| XXXXXX STRATEX NETWORKS, INC. |
||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
[Signature Page to the Transition Service Agreement]
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SCHEDULE
I
Services
Services
[omitted]
EXHIBIT
A
WIRE TRANSFER INSTRUCTIONS
WIRE TRANSFER INSTRUCTIONS
[omitted]
