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EXHIBIT 2.6
MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (the "Agreement") is effective as of
________, 2000 (the "Effective Date"), between MRV Communications, Inc., a
Delaware corporation ("MRV"), having an office at 00000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000 and Luminent, Inc., a Delaware corporation
("Luminent"), having an office at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx
00000.
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall
have the following meanings:
Section 1.1 ADDITIONAL SERVICES. Additional Services shall have the meaning set
forth in Section 3.5.
Section 1.2 ANCILLARY AGREEMENTS. Ancillary Agreements shall have the meaning
set forth in the Master Separation and Distribution Agreement.
Section 1.3 DISTRIBUTION DATE. Distribution Date shall have the meaning set
forth in the Master Separation and Distribution Agreement.
Section 1.4 IMPRACTICABLE. Impracticable shall have the meaning set forth in
Section 3.3.
Section 1.5 LOCALIZED VERSION. Localized Version means localized versions of the
Software.
Section 1.6 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT. Master Confidential
Disclosure Agreement shall mean that certain Master Confidential Disclosure
Agreement between MRV and Luminent.
Section 1.7 MASTER SEPARATION AND DISTRIBUTION AGREEMENT. Master Separation and
Distribution Agreement shall mean that certain Master Separation and
Distribution Agreement made by and between MRV and Luminent.
Section 1.8 SEPARATION DATE. Unless otherwise provided in this Agreement, or in
any agreement to be executed in connection with this Agreement, the effective
time and date of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation shall be 12:01 a.m.,
Pacific Time, __________, 2000 or such other date as may be fixed by the Board
of Directors of MRV (the "Separation Date").
Section 1.9 SERVICE(S). Service(s) shall have the meaning set forth in Section
3.1.
Section 1.10 SOFTWARE. Software means MRV's software program(s), in object code
only, listed and described in the relevant Transition Service Schedule.
Section 1.11 SOURCE CODE. Source Code means any human readable code, including
interpreted code, of MRV, listed and described in the relevant Transition
Service Schedule.
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Section 1.12 SOURCE CODE DOCUMENTATION. Source Code Documentation means the
manuals and other documentation that are reasonably necessary to use the Source
Code licensed herein, including those items listed and described in the relevant
Transition Service Schedule hereto.
Section 1.13 SUBSIDIARY. Subsidiary of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such other Person
unless such other Person controls, or has the right, power or ability to
control, that Person. For purposes of this Agreement, Luminent shall be deemed
not to be a subsidiary of MRV.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as requested
by Luminent and provided by MRV, the details of which are set forth in the
Transition Service Schedules attached to this Agreement. Each Service shall be
covered by this Agreement upon execution of a transition service schedule in the
form attached hereto (a "Transition Service Schedule").
For each Service, the parties shall set forth, among other things, the
time period during which the Service will be provided if different from the term
of this Agreement determined pursuant to Article 4 hereof, a summary of the
Service to be provided; a description of the Service; and the estimated charge,
if any, for the Service and any other terms applicable thereto on the Transition
Service Schedule. Obligations regarding each Transition Service Schedule shall
be effective upon execution of this Agreement. This Agreement and all the
Transition Service Schedules shall be defined as the "Agreement" and
incorporated herein wherever reference to it is made.
ARTICLE 3
SERVICES
Section 3.1 SERVICES GENERALLY. Except as otherwise provided herein, for the
term determined pursuant to Article 4 hereof, MRV shall provide or cause to be
provided to Luminent the service(s) described in the Transition Service
Schedule(s) attached hereto. The service(s) described on a single Transition
Service Schedule shall be referred to herein as a "Service." Collectively, the
services described on all the Transition Service Schedules (including Additional
Services) shall be referred to herein as "Services."
Section 3.2 SERVICE BOUNDARIES. Except as provided in a Transition Service
Schedule for a specific Service: (i) MRV shall be required to provide the
Services only to the extent and only at the locations such Services are being
provided by MRV for Luminent immediately prior
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to the Effective Date; and (ii) the Services will be available only for purposes
of conducting the business of Luminent substantially in the manner it was
conducted prior to the Effective Date.
Section 3.3 IMPRACTICABILITY. MRV shall not be required to provide any Service
to the extent the performance of such Service becomes "Impracticable" as a
result of a cause or causes outside the reasonable control of MRV including
unfeasible technological requirements, or to the extent the performance of such
Services would require MRV to violate any applicable laws, rules or regulations
or would result in the breach of any software license or other applicable
contract.
Section 3.4 ADDITIONAL RESOURCES. Except as provided in a Transition Service
Schedule for a specific Service, in providing the Services, MRV shall not be
obligated to: (i) hire any additional employees; (ii) maintain the employment of
any specific employee; (iii) purchase, lease or license any additional equipment
or software; or (iv) pay any costs related to the transfer or conversion of
Luminent's data to Luminent or any alternate supplier of Services.
Section 3.5 ADDITIONAL SERVICES. From time to time after the Effective Date, the
parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Transition Service
Schedules for such Additional Services pursuant to Article 2. Except as set
forth in Section 3.6, the parties may agree in writing on Additional Services
during the term of this Agreement.
Section 3.6 OBLIGATIONS AS TO ADDITIONAL SERVICES. Except as set forth in the
next sentence, MRV shall be obligated to perform, at a charge determined using
the principles for determining fees under Section 5.1, any Additional Service
that: (i) was provided by MRV immediately prior to the Separation Date and that
Luminent reasonably believes was inadvertently or unintentionally omitted from
the list of Services, or (ii) is essential to effectuate an orderly transition
under the Master Separation and Distribution Agreement unless such performance
would significantly disrupt MRV's operations or materially increase the scope of
its responsibility under this Agreement. If MRV reasonably believes the
performance of Additional Services required under subparagraphs (i) or (ii)
would significantly disrupt its operations or materially increase the scope of
its responsibility under this Agreement, MRV and Luminent shall negotiate in
good faith to establish terms under which MRV can provide such Additional
Services, but MRV shall not be obligated to provide such Additional Services if,
following good faith negotiation, it is unable to reach agreement on such terms.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Effective Date and
shall remain in effect until one (1) year after the Effective Date (the
"Expiration Date"), unless earlier terminated under Article 7. This Agreement
may be extended by the parties in writing, either in whole or with respect to
one or more of the Services; provided, however, that such extension shall only
apply to the Services for which the Agreement was extended. The parties shall be
deemed to have extended this Agreement with respect to a specific Service if the
Transition Service Schedule for such Service specifies a completion date beyond
the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services
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shall be provided up to and including the date set forth in the applicable
Transition Service Schedule, subject to earlier termination as provided herein.
ARTICLE 5
COMPENSATION
Section 5.1 CHARGES FOR SERVICES. Luminent shall pay MRV the charges, if any,
set forth on the Transition Service Schedules for each of the Services listed
therein as adjusted, from time to time, in accordance with the processes and
procedures established under Section 5.4 and Section 5.5 hereof. Such fees shall
include the direct costs, as determined using the process described in such
Transition Service Schedule, and indirect costs of providing the Services plus
_______ %, unless specifically indicated otherwise on a Transition Service
Schedule. However, if the term of this Agreement is extended beyond the
Expiration Date as provided in Article 4, Luminent will reimburse MRV such costs
plus _______ % for the Services unless the Transition Service Schedule for such
Service indicates it is to extend beyond the Expiration Date. The parties also
intend for charges to be easy to administer and justify and, therefore, they
hereby acknowledge it may be counterproductive to try to recover every cost,
charge or expense, particularly those that are insignificant or de minimus. The
parties shall use good faith efforts to discuss any situation in which the
actual charge for a Service is reasonably expected to exceed the estimated
charge, if any, set forth on a Transition Service Schedule for a particular
Service; provided, however, that the incurrence of charges in excess of any such
estimate on such Transition Service Schedule shall not justify stopping the
provision of, or payment for, Services under this Agreement.
Section 5.2 PAYMENT TERMS. MRV shall xxxx Luminent monthly for all charges
pursuant to this Agreement. Such bills shall be accompanied by reasonable
documentation or other reasonable explanation supporting such charges. Luminent
shall pay MRV for all Services provided hereunder within forty-five (45) days
after receipt of an invoice therefor. Late payments shall bear interest at the
lesser of 12% or the maximum rate allowed by law.
Section 5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding anything to
the contrary contained herein, Luminent shall not be charged under this
Agreement for any obligations that are specifically required to be performed
under the Master Separation and Distribution Agreement or any other Ancillary
Agreement and any such other obligations shall be performed and charged for (if
applicable) in accordance with the terms of the Master Separation and
Distribution Agreement or such other Ancillary Agreement.
Section 5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall reasonably
agree on a process and procedure for conducting internal audits and making
adjustments to charges as a result of the movement of employees and functions
between parties, the discovery of errors or omissions in charges, as well as a
true-up of amounts owed. In no event shall such processes and procedures extend
beyond two (2) years after completion of a Service.
Section 5.5 PRICING ADJUSTMENTS. In the event of a tax audit adjustment relating
to the pricing of any or all Services provided pursuant to this Agreement in
which it is determined by a taxing authority that any of the charges,
individually or in combination, did not result in an arm's-length payment, as
determined under internationally accepted arm's-length standards, then
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the parties, including any MRV subcontractor providing Services hereunder, may
agree to make corresponding adjustments to the charges in question for such
period to the extent necessary to achieve arm's-length pricing. Any adjustment
made pursuant to this Section 5.5 at any time during the term of this Agreement
or after termination of this Agreement and shall be reflected in the parties'
legal books and records, and the resulting underpayment or overpayment shall
create, respectively, an obligation to be paid in the manner specified in
Section 5.2, or shall create a credit against amounts owed under this Agreement.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
Section 6.1 PERFORMANCE METRICS: MRV. Subject to Sections 3.4 and any other
terms and conditions of this Agreement, MRV shall maintain sufficient resources
to perform its obligations hereunder. Specific performance metrics for MRV for a
specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, MRV shall use reasonable efforts to provide
Services in accordance with the policies, procedures and practices in effect
before the Effective Date and shall exercise the same care and skill as it
exercises in performing similar services for itself.
Section 6.2 DISCLAIMER OF WARRANTIES
MRV MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, SOFTWARE OR OTHER
DELIVERABLES PROVIDED BY IT HEREUNDER.
Section 6.3 PERFORMANCE METRICS: LUMINENT . Specific performance metrics for
Luminent for a specific Service may be set forth in the corresponding Transition
Service Schedule. Where none is set forth, Luminent shall use reasonable
efforts, in connection with receiving Services, to follow the policies,
procedures and practices in effect before the Effective Date including providing
information and documentation sufficient for MRV to perform the Services as they
were performed before the Effective Date and making available, as reasonably
requested by MRV, sufficient resources and timely decisions, approvals and
acceptances in order that MRV may accomplish its obligations hereunder in a
timely manner.
Section 6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES . The parties acknowledge
the transitional nature of the Services and that MRV may make changes from time
to time in the manner of performing the Services if MRV is making similar
changes in performing similar services for itself and if MRV furnishes to
Luminent sixty (60) days written notice regarding such changes.
Section 6.5 RESPONSIBILITY FOR ERRORS; DELAYS. MRV's sole responsibility to
Luminent:
(i) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the Services, at no additional
cost or expense to Luminent; provided, Luminent must promptly advise MRV of any
such error or omission of which it
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becomes aware after having used reasonable efforts to detect any such errors or
omissions in accordance with the standard of care set forth in Section 6.1; and
(ii) for failure to deliver any Service because of
Impracticability, shall be to use reasonable efforts, subject to Section 3.3, to
make the Services available and/or to resume performing the Services as promptly
as reasonably practicable.
Section 6.6 GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder (including by way of example, not by way of limitation,
rights to use third party software needed for the performance of Services). The
costs of obtaining such third party consents, licenses, sublicenses or approvals
shall be borne by Luminent. The parties will maintain in accordance with its
standard document retention procedures, documentation supporting the information
relevant to cost calculations contained in the Transition Service Schedules and
cooperate with each other in making such information available as needed in the
event of a tax audit, whether in the United States or any other country.
Section 6.7 ALTERNATIVES. If MRV reasonably believes it is unable to provide any
Service because of a failure to obtain necessary consents, licenses, sublicenses
or approvals pursuant to Section 6.6 or because of Impracticability, the parties
shall cooperate to determine the best alternative approach. Until such
alternative approach is found or the problem otherwise resolved to the
satisfaction of the parties, MRV shall use reasonable efforts, subject to
Section 3.3 and Section 3.4, to continue providing the Service. To the extent an
agreed upon alternative approach requires payment above and beyond that which is
included in MRV's charge for the Service in question, the parties shall share
equally in making any such payment unless they otherwise agree in writing.
ARTICLE 7
TERMINATION
Section 7.1 TERMINATION. Luminent may terminate this Agreement, either with
respect to all or with respect to any one or more of the Services provided to
Luminent hereunder, for any reason or for no reason, at any time upon sixty (60)
days prior written notice to MRV. In addition, subject to the provisions of
Article 16 below, either party may terminate this Agreement with respect to a
specific Service if the other party materially breaches a material provision
with regard to that particular Service and does not cure such breach (or does
not take reasonable steps required under the circumstances to cure such breach
going forward) within sixty (60) days after being given notice of the breach;
provided, however, that the non-terminating party may request that the parties
engage in a dispute resolution negotiation as specified in Article 16 below
prior to termination for breach.
Section 7.2 SURVIVAL. Those Sections of this Agreement that, by their nature,
are intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
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Section 7.3 USER IDS, PASSWORDS. The parties shall use good faith efforts at the
termination or expiration of this Agreement or any specific Service hereto to
ensure that all applicable user IDs and passwords are canceled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement is
that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. MRV will be solely responsible
for any employment-related taxes, insurance premiums or other employment
benefits respecting its personnels' performance of Services under this
Agreement. Luminent agrees to grant MRV personnel access to sites, systems and
information (subject to the provisions of confidentiality in Article 13 below)
as necessary for MRV to perform its obligations hereunder. MRV personnel agree
to obey any and all security regulations and other published policies of
Luminent.
ARTICLE 9
SUBCONTRACTORS
MRV may engage a "Subcontractor" to perform all or any portion of MRV's
duties under this Agreement, provided that any such Subcontractor agrees in
writing to be bound by confidentiality obligations at least as protective as the
terms of Article 13 regarding confidentiality below, and provided further that
MRV remains responsible for the performance of such Subcontractor. As used in
this Agreement, "Subcontractor" will mean any individual, partnership,
corporation, firm, association, unincorporated organization, joint venture,
trust or other entity engaged to perform hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
Section 10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS. This Agreement and
the performance of this Agreement will not affect the ownership of any
copyrights or other intellectual property rights allocated in the Ancillary
Agreements.
Section 10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED. Neither party will gain, by
virtue of this Agreement, any rights of ownership of copyrights, patents, trade
secrets, trademarks or any other intellectual property rights owned by the
other.
Section 10.3 OWNERSHIP OF DEVELOPED WORKS. Except as set forth in Section 10.2,
MRV will own all copyrights, patents, trade secrets, trademarks and other
intellectual property rights subsisting in the Software Deliverables (as defined
in Section 11.1 below) and other works developed by MRV for purposes of this
Agreement.
Section 10.4 LICENSE TO PREEXISTING WORKS. Luminent grants MRV a non-exclusive,
worldwide, royalty-free license to use, copy, and make derivative works of,
distribute, display,
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perform and transmit Luminent's pre-existing copyrighted works or other
intellectual property rights solely to the extent necessary to perform its
obligations under this Agreement.
ARTICLE 11
SOFTWARE LICENSE
Section 11.1 SOFTWARE DELIVERABLE/LICENSE. Unless otherwise agreed by the
parties under the Ancillary Agreements or any separate license or technology
agreement, if MRV supplies Luminent with a deliverable that in whole or in part
consists of software, firmware, or other computer code (referred to as a
"Software Deliverable") as indicated in a Transition Service Schedule, such
Software Deliverables will be supplied in object code form only and will be
subject to the terms of this Article 11. In the event that such Software
Deliverables are licensed to MRV by third parties, Luminent agrees to be bound
by any different or additional conditions that are required by such third
parties and are communicated in writing by MRV to Luminent.
Section 11.2 DELIVERY AND ACCEPTANCE.
(a) DELIVERY. MRV agrees to deliver to Luminent one (1): (i) master copy
of the Software in object code form only (as specified on the relevant
Transition Service Schedule of the Agreement) on the media described on the
relevant Transition Service Schedule and (ii) Documentation for the Software on
the media described in the relevant Transition Service Schedule ((i) and (ii)
are collectively referred to as a "Complete Copy") as listed in the relevant
Transition Service Schedule no later than ten (10) days after the Effective Date
(or any other start date as specifically indicated in the relevant Transition
Service Schedule). If Source Code is licensed under this Agreement, MRV agrees
to deliver one (1) copy of such Source Code no later than ten (10) days after
the Effective Date (or any other start date as specifically indicated in the
relevant Transition Service Schedule). Additional Software or Source Code may be
added to this Agreement from time to time by execution by the parties of a
Transition Service Schedule.
(b) ACCEPTANCE OF SOFTWARE (NON-SOURCE CODE). Luminent will have thirty
(30) days from the date of receipt of a Complete Copy of the Software to
evaluate the Software for conformity with the manuals and other documentation
that MRV makes available with the Software to end users or which are reasonably
necessary to use the Software licensed herein, including those items listed and
described in the relevant Transition Service Schedule hereto (the
"Documentation") and specifications, and either accept, return for rework
(provided the Software has not previously been reworked), or reject the
Software. Luminent shall accept the Software if it substantially conforms with
Documentation and specifications. Luminent will be entitled to test and evaluate
the Software and MRV hereby grants to Luminent the right to use and reproduce
the Software only to the extent necessary for Luminent to perform its
evaluation. Such license will include the right of Luminent to use third party
subcontractors bound by the relevant restrictions herein solely as necessary to
achieve the foregoing. If Luminent returns the Software for rework, MRV will use
reasonable commercial efforts to correct the identified defects and resubmit the
Software for re-evaluation under the same acceptance procedure. In the event
Luminent rejects the Software a second time, this Agreement will terminate with
respect to that Software. Payment due from Luminent to MRV under a Transition
Service Schedule that includes Software to be licensed shall be reduced by the
pro rata portion of compensation
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attributable to the Software unless the Software has been accepted by Luminent
in writing or Luminent fails to reject the Software within such 30 day period.
(c) ACCEPTANCE OF SOURCE CODE. The Source Code is provided for
Luminent's reference only and subject to the limitations below in Section 11.3.
The Source Code may not be accepted or rejected according to the provisions
above in Section 11.2(b). If Luminent rejects the Source Code, Luminent must
destroy all copies of such rejected Source Code and promptly furnish evidence of
such rejection and destruction to MRV.
Section 11.3 RIGHTS GRANTED AND RESTRICTIONS.
(a) LICENSE TO SOFTWARE. Subject to the terms and conditions of this
Agreement, MRV hereby grants to Luminent, under MRV's intellectual property
rights in and to the Software, a non-exclusive, nontransferable worldwide
license to (i) use and display the Software for its own internal information
processing services and computing needs, and to make sufficient copies as
necessary for such use, and (ii) use the Documentation in connection with the
permitted use of the Software and make sufficient copies as necessary for such
use.
(b) LICENSE TO SOURCE CODE. Subject to the terms and conditions of this
Agreement, MRV hereby grants to Luminent, under MRV's intellectual property
rights in and to the Software, a non-exclusive, nontransferable worldwide
license to (i) use and reproduce (for archival and back-up purposes only), and
prepare derivative works of the Source Code, for the sole purpose of supporting
the object code version of the Software (if such object code exists), or, if no
object code exists, for the sole purpose of its own internal information
processing services and computing needs and (ii) to use Source Code
Documentation in connection with the permitted use of the Source Code and make
copies for archival and back-up purposes only.
(c) RESTRICTIONS. Luminent shall not itself, or through any Subsidiary,
affiliate, agent or third party: (i) sell, lease, license or sublicense the
Software, the Source Code, the Documentation or the Source Code Documentation;
(ii) decompile, disassemble, or reverse engineer the Software or Source Code, in
whole or in part, except to the extent such restriction is prohibited by
applicable law; (iii) allow access to the Software or Source Code by any user
other than Luminent; (iv) write or develop any derivative software or any other
software program based upon the Software or Source Code; (v) use the Software or
Source Code to provide processing services to third parties, or (vi) otherwise
use the Software or Source Code on a "service bureau" basis; or provide,
disclose, divulge or make available to, or permit use of the Software or Source
Code by any third party without MRV's prior written consent.
(d) CONFIDENTIALITY. The Source Code and Source Code Documentation are
hereby deemed "Confidential Information" and subject to the terms and procedures
of the Master Confidential Disclosure Agreement. The period of disclosure shall
be one (1) year from the Effective Date of this Agreement, and the period of
confidentiality shall be perpetual.
(e) TRADEMARKS. Neither party is granted any ownership in or license to
the trademarks, marks or trade names (collectively, "Marks") of the other party
with respect to this Software.
(f) OWNERSHIP. MRV hereby reserves all rights to the Software, Source
Code and Documentation, and any copyrights, patents, or trademarks, embodied
therein or used in connection therewith, except for the rights expressly granted
herein.
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(g) COPYRIGHT NOTICES. Luminent agrees that it will not remove any
copyright notices, proprietary markings, trademarks or trade names from the
Software, Source Code, Documentation, or Source Code Documentation.
(h) TECHNICAL ASSISTANCE AND TRAINING. MRV agrees to provide technical
assistance and training to Luminent personnel only if such assistance is set
forth in the relevant Transition Service Schedule.
Section 11.4 AS-IS WARRANTY.
(a) AS-IS WARRANTY. THE SOFTWARE AND SOURCE CODE PROVIDED HEREUNDER IS
LICENSED ON AN "AS-IS" BASIS ONLY, WITHOUT ANY EXPRESS WARRANTIES OF ANY KIND.
(b) IMPLIED WARRANTY DISCLAIMER. MRV MAKES NO WARRANTIES WHATSOEVER,
EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR SOURCE CODE (INCLUDING
DOCUMENTATION AND SOURCE CODE DOCUMENTATION), ITS MERCHANTABILITY OR ITS FITNESS
FOR ANY PARTICULAR PURPOSE.
Section 11.5 MISCELLANEOUS.
NO OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR OBLIGATIONS
WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH
IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES
ARTICLE 12
INFRINGEMENT DEFENSE
Notwithstanding anything to the contrary in Article 13 below or the
Master Confidential Disclosure Agreement, to the extent MRV delivers or licenses
any intellectual property to Luminent after the Separation Date in performance
of this Agreement, MRV agrees to defend Luminent and its directors, officers,
employees and agents against any and all claims, actions or suits (any of the
foregoing, a "Claim") incurred by or asserted against Luminent based upon
infringement of a third party patent or other intellectual property right.
Luminent agrees to notify MRV promptly of any Claim and permit MRV at MRV's
expense to defend such Claim and will cooperate in the defense thereof. MRV
agrees to pay any awards or settlement amounts arising from a Claim. Neither MRV
nor Luminent will enter into or permit any settlement of any such Claim without
the express written consent of the other party. Luminent may, at its option and
expense, have its own counsel participate in any proceeding that is under the
direction of MRV and will cooperate with MRV and its insurer in the disposition
of any such matter.
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ARTICLE 13
CONFIDENTIALITY
The terms of the Master Confidential Disclosure Agreement between the
parties shall apply to any Confidential Information (as defined therein) which
is the subject matter of this Agreement.
ARTICLE 14
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT. THE FOREGOING LIMITATION WILL NOT LIMIT MRV'S OBLIGATIONS WITH
RESPECT TO PAYMENT OF DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF
A THIRD PARTY CLAIM UNDER ANY INDEMNITY OR INFRINGEMENT DEFENSE PROVISIONS
SPECIFIED HEREIN.
ARTICLE 15
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of
its obligations under this Agreement, other than the obligations of Luminent to
make certain payments to MRV pursuant to Article 5 hereof for services rendered,
if such failure or delay is caused by Force Majeure. "Force Majeure" means any
act of God or the public enemy, any accident, explosion, fire, storm,
earthquake, flood, or any other circumstance or event beyond the reasonable
control of the party relying upon such circumstance or event.
ARTICLE 16
DISPUTE RESOLUTION
Section 16.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement or the Ancillary Agreements, or the grounds for the termination
hereof, appropriate senior executives (e.g. director or V.P. level) of each
party who shall have the authority to resolve the matter shall meet to attempt
in good faith to negotiate a resolution of the Dispute prior to pursuing other
available remedies. The initial meeting between the appropriate senior
executives shall be referred to herein as the "Dispute Resolution Commencement
Date." Discussions and correspondence relating to trying to resolve such Dispute
shall be treated as confidential information developed for the purpose of
settlement and shall be exempt from discovery or production and shall not be
admissible. If the senior executives are unable to resolve the Dispute within
thirty (30) days from
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the Dispute Resolution Commencement Date, and either party wishes to pursue its
rights relating to such Dispute, then the Dispute will be mediated by a mutually
acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute
within thirty (30) days after written notice by one party to the other demanding
non-binding mediation. Neither party may unreasonably withhold consent to the
selection of a mediator or the location of the mediation. Both parties will
share the costs of the mediation equally, except that each party shall bear its
own costs and expenses, including attorney's fees, witness fees, travel
expenses, and preparation costs. The parties may also agree to replace mediation
with some other form of non-binding or binding ADR.
Section 16.2 ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days of the Dispute Resolution Commencement Date,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Los Angeles County,
California. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall be
entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior negotiation or mediation). The decision
of the arbitrator shall be final and non-appealable and may be enforced in any
court of competent jurisdiction. The use of any ADR procedures will not be
construed under the doctrine of laches, waiver or estoppel to adversely affect
the rights of either party.
Section 16.3 COURT ACTION. Any Dispute regarding the following is not required
to be negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others.
Section 16.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article 16 with respect
to all matters not subject to such dispute, controversy or claim.
ARTICLE 17
MISCELLANEOUS
Section 17.1 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
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Section 17.2 GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Los Angeles County and/or the United States District Court for the Southern
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Article 16 above.
Section 17.3 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 17.4 NOTICES. Notices, offers, requests, or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to MRV:
MRV Communications, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Chief Executive Officer
Fax: 000-000-0000
if to Luminent:
Luminent, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Chief Executive Officer
Fax: 000-000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
Section 17.5 NONASSIGNABILITY. Except as specifically permitted under Article 10
above, neither party may, directly or indirectly, in whole or in part, whether
by operation of law or otherwise, assign or transfer this Agreement, without the
other party's prior written consent, and any attempted assignment, transfer or
delegation without such prior written consent shall be voidable at the sole
option of such other party. Notwithstanding the foregoing, each party (or its
permitted successive assignees or transferees hereunder) may assign or transfer
this Agreement as a whole without consent to an entity that succeeds to all or
substantially all of the business or assets of such party. Without limiting the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
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Section 17.6 SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement will nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 17.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. If any term
or other provision of this Agreement or the Exhibits or Schedules attached
hereto is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
Section 17.8 AMENDMENT. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duly authorized representatives.
MRV COMMUNICATIONS, INC.,
a Delaware Corporation
By:
------------------------------------------
Xxxx Xxxxx, Chief Executive Officer
LUMINENT, INC.,
a Delaware Corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Executive Officer
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TRANSITION SERVICE SCHEDULE TO MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #:____________ (To be inserted by
responsible individual or department.)
2. Functional Area:_______________
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between MRV Communications, Inc. ("MRV")
and Luminent, Inc. ("Luminent") to which this Transition Service
Schedule is attached and end on _________, ____ unless otherwise
indicated below.
Indicate below if other start/end date:
Start Date:_______________________
End Date:_________________________
If Start and End dates vary by service and/or country, please indicate
in Section 5 below.
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
------------------------------------ --------------------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
Country Site Service(s) Start Date End Date
--------------- --------------- ------------ ------------ ----------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
7. Estimated Total Compensation: __________________________
8. Describe cost methodology and cost drivers affecting Estimated Total
Compensation (Describe on an individual service basis if necessary):
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9. Describe the process by which the cost of services will be adjusted in
the instance of an increase/reduction in the services provided:
(Describe on an individual service basis if necessary.)
10. Software: Will software be used or included with the Services to be
provided under this Transition Service Schedule: ____ Yes ____ No
If yes, will source code be provided: ____ Yes ____ No
List software to be provided:
Software Application Number of Licenses to be Provided
------------------------------------- ---------------------------------------
------------------------------------- ----------------------------------------
------------------------------------- ----------------------------------------
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Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between MRV Communications,
Inc. and Luminent, Inc.
MRV COMMUNICATIONS, INC.,
a Delaware Corporation
By:
------------------------------------------
Xxxx Xxxxx, Chief Executive Officer
LUMINENT, INC.,
a Delaware Corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Executive Officer
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