EXHIBIT 10.26
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. ASterisks xxxxxx ommissions.
DIGITAL SOFTWARE INTEGRATION CENTER
SOURCING AGREEMENTAGREEMENT
This Digital Software Integration Center Sourcing Agreement
("Agreement") shall be effective as of the 1st day of November 1998
(the "Effective Date") by and between General Instrument Corporation,
a Delaware corporation having its principal place of business at 000
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("GI") and Spyglass, Inc., a
Delaware corporation having its principal place of business at 0000
Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Spyglass"). GI and
Spyglass are hereafter sometimes referred to herein collectively as
"Parties" and individually as a "Party."
RECITALS
WHEREAS, GI has designed and developed cable television set-top
terminals and GI offers developers of applications for such set-top
terminals assistance in connection with the development and
integration of such applications; and
WHEREAS, GI desires to take advantage of Spyglass' expertise in
Internet and real time operating systems technologies (including
Personal Java and Windows CE) and GI desires Spyglass to assist GI in
connection with the providing of such integration services to
entities desiring to create applications for General Instrument's
set-top terminals; and
WHEREAS, in order to assist GI in providing such services,
Spyglass shall create and operate a Digital Software Integration
Center ("DSIC") to provide development and integration assistance to
third party developers; and
WHEREAS, Spyglass has organized Spyglass DSIC, Inc., as a
subsidiary (the "Subsidiary") for the purpose of operating and
managing the DSIC in accordance with the terms of this Agreement; and
WHEREAS, contemporaneously with the execution of this Agreement,
Spyglass, the Subsidiary and GI are entering into an Operating
Agreement for the purpose of establishing certain rights and
obligations with respect to the Subsidiary.
NOW, THEREFORE, in consideration of the mutual provisions set
forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties intending to be legally bound, hereby agree
as follows:
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1. DEFINITIONS.
1.1 "Affiliate" shall mean any entity that controls, is
controlled by or is under common control with a Party, with control
being defined as at least fifty percent (50%) equity ownership or the
ability, contractual or otherwise, to dictate or manage the day to
day affairs of the controlled party.
1.2 "Confidential Information" shall mean proprietary
marketing, technical, or business information, including, without
limitation, component and product specifications, algorithms, quality
assurance plans, testing and analysis output and results, marketing
strategies, business plans and strategies, inventions (whether or not
patented or patentable), cost and profit data, distribution and
marketing plans, business and financial information, designs,
diagrams, blueprints, charts, products and software.
1.3 "Force Majeure" shall mean, without limitation, (a) any act
of God, war, riot, fire, rupture, explosion, flood, strike,
injunction, governmental action, inaction, or order, unavailability
of materials, supplies or energy, or unscheduled outage or shut-down,
(b) any lockout or other labor disturbance, even if such lockout or
disturbance is within the power of a party to settle, or (c) any
other cause, whether similar or dissimilar to the foregoing, which is
beyond the reasonable control of a Party (or any Affiliate of such
Party) claiming Force Majeure interference with the performance of
such Party under this Agreement.
1.4 "Management Committee" shall be a committee established
pursuant to Section 4.1 of the Agreement consisting of *** of
Spyglass and GI employees.
1.5 "Materials" shall mean software, technical documentation,
and other copyrightable materials generated by Spyglass in the course
of its performance under this Agreement.
1.6 "Person" shall mean a corporation, an association, a
partnership, an organization, a business, a limited liability
company, an individual, a government or a political subdivision
thereof or a governmental agency.
1.7 "Set-Top Terminal" shall mean a cable television Set-Top
Terminal developed by GI and distributed under the designation ***,
or any other similar digital product developed by GI.
1.8 "Work" shall mean the performance by Spyglass of the tasks
connected with or arising out of the operation of the DSIC, including
the services specified in Article 2.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2. SPYGLASS' OBLIGATIONS.
2.1 Creation and Staffing of DSIC. Spyglass shall establish a
DSIC which will provide the following services to GI:
a. Assist GI and third party developers in resolving
design and analysis issues concerning the Set-Top
Terminal architecture.
b. Provide technical support to application developers
and GI customers (but not end-users) purchasing the
Set-Top Terminals.
c. Test applications designed to run on the Set-Top
Terminals and to assist third party developers with
the integration of such applications into a Set-Top
Terminal.
d. Test and certify that applications developed for a
Set-Top Terminal operate on a designated platform.
e. Any other tasks that the Management Committee
determines in accordance with Section 4.1 should be
performed by the DSIC.
The particular tasks to be performed by the DSIC shall be set
forth in a Statement of Work and the parties shall diligently work to
complete such Statement of Work within six (6) weeks following the
Effective Date.
2.2 Facilities. The DSIC shall initially be set up in the
greater Boston, MA area. Spyglass shall make temporary office and lab
space available at *** to employees of GI that visit the DSIC.
Spyglass shall provide access to general office services such as
telephone, photocopiers, fax, etc. for such GI employees, customers
and independent software vendors ("ISVs"). Spyglass shall make
available, at GI's expense and upon its request and direction,
dedicated office and lab space for GI employees, customers and ISVs.
In the event that the Parties mutually agree that it is appropriate
for Spyglass to establish a second DSIC or to relocate a portion of
an existing DSIC to another location, the Parties shall negotiate in
good faith to reach an agreement on the timing, location, and cost
sharing arrangements for the operation of such additional DSIC.
2.3 Capital Equipment. Spyglass shall be responsible for
providing each employee assigned to the DSIC with the same amenities
and equipment that are supplied to other Spyglass employees
performing similar tasks on behalf of Spyglass apart from the DSIC.
At a minimum, each employee shall be provided with access to a
personal computer, telephone, e-mail capabilities, and copying
machines.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2.4 Business Entities. Pursuant to the Operating Agreement,
which is being executed contemporaneously herewith, Spyglass shall
establish the Subsidiary, ninety percent (90%) of the stock of which
shall be owned by Spyglass, with the remaining ten percent (10%) to
be owned by GI. The sole responsibility of the Subsidiary shall be
to operate and manage the DSIC. The employees described in Article 4
that are assigned to work in the DSIC shall be employees of such
subsidiary. The terms of the option to purchase the Subsidiary shall
be set forth in the Operating Agreement
2.5 Delivery of Technology and Equipment. Spyglass shall
purchase and deliver to the DSIC the first *** of hardware and
equipment necessary for the implementation of a cable system network
(including head end, Set-Top Terminals, cabling, etc.), other capital
equipment, software and other technology of GI which is necessary or
useful to enable the personnel assigned to the DSIC to operate, test,
prototype and understand the operation of the Set-Top Terminals in
order to perform the Work and all computers, software, equipment and
office supplies for the GI employees, contractors and ISVs working in
the DSIC. GI shall make its equipment and technology available to
Spyglass ***. To the extent the aggregate cost of said technology
and equipment exceeds ***, GI shall purchase and deliver same to the
DSIC.
3. GI's OBLIGATIONS.
3.1 GI Personnel. GI shall make appropriate personnel
available to assist Spyglass in gaining an understanding of the
design and operation of the Set-Top Terminals. Such personnel shall
be available Monday through Friday between the hours of 9:00 a.m. and
5:00 p.m. Eastern Standard Time.
4. PROJECT MANAGEMENT.
4.1 Project Manager. GI and Spyglass shall each appoint a
dedicated, full-time Project Manager and an alternate Project Manager
who has the authority to assume the duties of the Project Manager in
the event the Project Manager is not available. Spyglass' Project
Manager shall be responsible for overseeing the day-to-day operation
of the DSIC. All communications between the Parties concerning the
day-to-day operation of DSIC shall be made through the respective
Project Managers. Each Party shall have a right to change its
Project Manager upon a minimum of thirty (30) days' prior written
notice to the other Party and subject to the other Party's approval,
which approval shall not be unreasonably withheld.
4.2 Management Committee. GI and Spyglass shall establish a
DSIC Management Committee each consisting of a mutually
agreed upon *** of
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
employees of Spyglass and GI. Such committee shall be responsible
for the oversight of the DSIC. The committee shall be comprised of
at least *** from each Party (which in the case of Spyglass at least
*** of which shall be a Subsidiary employee) and at least *** from
each Party. During the first year of this Agreement, the Management
Committee shall meet on a quarterly basis at the facilities of the
DSIC or as otherwise agreed. The Management Committee shall be
responsible for establishing goals and objectives of the DSIC, but
shall not be responsible for the day to day operation of the DSIC
which will be operated by Spyglass. Each Party shall have the right
to change its representatives on the Management Committee upon notice
to the other Party. A majority vote of the members of the Management
Committee is required in order to take any action.
4.3 Personnel. Spyglass shall staff the DSIC with the
personnel listed in Exhibit C. Exhibit B lists the minimum
qualifications of each Position. Spyglass shall be solely
responsible for the hiring and training of all such personnel and for
the payment of all wages and benefits for all the employees listed
above. With the exception of any Specialists listed in Exhibit B
that will provide assistance on limited and/or intermittent aspects
of the Work, each of the personnel identified above shall devote
their full time and effort and shall be dedicated to the operation of
the DSIC.
4.4 Reassignment of Personnel. Spyglass shall have the right,
with the consent of GI which shall not be unreasonably withheld, to
reassign personnel of the Subsidiary working in the DSIC to other
jobs at Spyglass; provided, however, that Spyglass shall not have the
right to reassign the employees listed in Exhibit D (the "Key
Employees") without the prior written consent of GI. Any reassigned
personnel shall be promptly replaced with another employee having the
necessary skills and training to perform tasks to which such person
is assigned. In the event that GI requires any confirmation with
respect to the qualifications of such replacement personnel, Spyglass
agrees to make resumes and other appropriate information available to
GI upon its request. Notwithstanding anything to the contrary above,
Spyglass shall have the right to temporarily (i.e., for up to thirty
(30) business days) reassign an employee of the Subsidiary to work on
non-DSIC matters for Spyglass and to assign a skilled, trained and
qualified replacement during such temporary period. In the event that
any employee (including employees listed in Exhibit D (the "Key
Employees")) of the Subsidiary terminates his/her employment with the
Subsidiary or the Subsidiary terminates such employment, the
Subsidiary shall have the right to hire a qualified person to replace
such departing employee.
4.5 Replacement of Spyglass Personnel. If GI determines in
good faith that the continued assignment of any Spyglass employee or
subcontractor performing or providing Work is not in accordance with
the requirements and standards set forth in
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
this Agreement, GI shall deliver a notice to Spyglass requesting
replacement of such employee. Promptly after its receipt of such
request by GI, Spyglass will investigate the matter stated in the
request and discuss its findings with GI. If GI still, in good
faith, requests replacement of such employee, Spyglass will replace
that employee with one of suitable ability and qualifications
reasonably acceptable to GI. Nothing in this Agreement shall be
deemed to give GI the right to require Spyglass to terminate any
Spyglass employee's employment; but is intended only to give GI the
right to request that Spyglass discontinue using a specific employee
in the performance of the Work.
4.6 Use of Subcontractors. The Parties acknowledge that
Spyglass shall have the right to engage subcontractors to satisfy the
minimum staffing requirement set forth in this Article 4. Spyglass
shall remain responsible for the performance of all obligations
performed directly by such subcontractors to the same extent as if
such obligations were performed by Spyglass employees. Spyglass
shall not disclose any Confidential Information of GI to said
subcontractors unless and until such subcontractor has agreed in
writing to protect the confidentiality of such Confidential
Information by executing GI's form of Non-Disclosure Agreement, which
is attached hereto as Exhibit F. Any modifications to said
Non-Disclosure Agreement shall require the express written agreement
of GI prior to the subcontractor performing any Work. *** relating
to such subcontractors will be charged to GI except as otherwise
specifically agreed to herein.
4.7 Spyglass' Employees. As mutually agreed, Spyglass may
augment the personnel assigned to the DSIC with other Spyglass
employees on an as-needed basis. GI shall be charged the rates set
forth in Exhibit B for all Work performed by such additional Spyglass
employees. GI shall have the right to request that Spyglass
discontinue the use of such additional employees and Spyglass shall
comply with such request.
4.8 No joint employment. It is understood that personnel
assigned to perform the Work shall be employed solely and exclusively
by the Subsidiary or Spyglass and all GI employees used in performing
GI's obligations of this Agreement shall be employed solely and
exclusively by GI. Thus, GI and Spyglass shall not be considered a
joint employer of any employee.
5. PAYMENT TERMS.
5.1 Payment for DSIC Personnel. On a ***basis, Spyglass will
prepare and provide to GI an invoice for the applicable personnel
that performed services on behalf of the Subsidiary in the ***. In
consideration of the performance of the obligations set forth in this
Agreement, including, but not limited to, Spyglass' compliance with
the staffing requirements described in Section 4.3, GI shall pay
Spyglass for the Work performed
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
during the *** in accordance with the charges set forth in Spyglass'
invoice, based upon a daily rate equal to the amounts listed in the
Payment Schedule set forth in Exhibit B divided by 260. In
accordance with Section 5.3, in the event Spyglass performs the Work
in accordance with the terms hereof, GI shall make the following
payments to Spyglass: a minimum of *** (individually the "Minimum
Payment" and collectively the "Minimum Payments"). Except as
otherwise provided in Section 11.5, GI's aggregate responsibility for
Minimum Payments hereunder for dedicated personnel and Spyglass
Specialists pursuant to Section 5.4, shall be limited to twenty
million dollars ($20,000,000) during the Term. In the event GI
incurs twenty million dollars ($20,000,000) in Work performed
hereunder, its total Minimum Payment obligations shall be completely
fulfilled and discharged, and shall supercede the obligation to make
complete the Minimum Payment obligation of any individual annual
period. The Parties also agree to periodically consider other fee
arrangements, including performance-based billing as an alternative
to the time-based charges specified in this Agreement.
5.2 Payment Terms. GI shall pay all undisputed amounts within
*** days of receipt of an invoice from Spyglass. All such payments
shall be made in U.S. dollars by check mailed to Spyglass' principal
office identified above or by wire transfer to a bank designated by
Spyglass. Any amount not paid when due shall bear a late payment
charge, until paid, at the rate of *** per annum. In the event that
any such amounts are not paid, Spyglass shall provide notice to GI.
If GI fails to make appropriate payment by the *** business day
following receipt of such notice, Spyglass shall have the right to
suspend the operation of DSIC but in the event of such suspension, GI
shall not be relieved of its obligation to make such payments. GI
shall pay Spyglass the amount of all governmental taxes, excises,
duties and/or other charges (except taxes on or measured by the net
income of Spyglass) that Spyglass may be required to pay with respect
to the production, sale or transportation of any Materials delivered
or any services performed hereunder. If, during the Term, any such
taxes, excises, duties and/or charges are imposed upon and required
to be paid by Spyglass which were not in effect as of the
commencement of the Agreement, and if GI reasonably deems such new
taxes, excises, duties and/or charges to be excessive, GI reserves
the right to terminate the Agreement, upon *** days' prior notice.
5.3 Calculation of Minimum Payments. At the end of each
calendar year of the Term, the Parties shall review the dollar value
of the Work performed and invoices paid in relation to the Minimum
Payments. GI shall be obligated to make the Minimum Payments set
forth in Section 5.1, only in the event that Spyglass performs the
Work and provides acceptable invoices totaling at least *** of the
annual Minimum Payment for the applicable calendar year. In the
event that Spyglass fails to provide this level of Work, GI shall be
obligated to make payment only in the amount of the actual Work
performed and accurately billed, rather than the specified Minimum
Payment.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
5.4 Additional Personnel Charges. In the event that Spyglass
agrees to provide any additional services or assign its personnel on
a temporary basis to the DSIC, such personnel shall be provided at
the rates set forth in Exhibit B. Such amounts for extra personnel
shall be billed on a ***basis at the end of each ***and payments of
such amounts are due within *** days of receipt of an invoice from
Spyglass.
5.5 Additional Expenses. GI shall reimburse Spyglass for all
out-of-pocket expenses incurred by Spyglass in leasing, constructing,
and operating the space (including general office services) in the
DSIC dedicated to the GI employees, customers, and ISVs. GI shall be
responsible for reimbursing Spyglass for any out-of-pocket costs
incurred by any Spyglass employee performing Work incurred in
connection with any travel (transportation, lodging, meals, etc.) by
such employee. In addition, GI shall be responsible for paying for
any equipment and/or software that Spyglass is obligated to purchase
for the Subsidiary employees that it does not purchase for its other
employees. Such costs shall be paid within *** days of receipt of an
invoice from Spyglass. GI shall also pay all reasonable and
necessary costs incurred by Spyglass in the temporary or permanent
relocation of employees that are relocated at the request of GI.
Spyglass shall be responsible for all other costs incurred in
connection with the performance of the Work.
6. ***.
GI expects, ***. The ***taken as a whole, are ***. In addition, if
***. If Spyglass enters into ***, then Spyglass shall promptly notify
GI, and GI shall have the right to ***. If any ***. GI *** may
request *** signed by Spyglass's Chief Financial Officer, and
Spyglass will comply ***, to insure that ***.
7. CONFIDENTIAL INFORMATION.
GI and Spyglass entered into a Non-Disclosure Agreement dated March
4, 1998 ("NDA") for the purpose of protecting the confidentiality of
proprietary information disclosed by either Party ("Discloser") to
the other Party ("Recipient") in connection with a potential business
relationship between the parties relating to Spyglass' internet
technology, applications, and/or services for use with GI's digital
set top terminals.
In connection with the NDA and this Agreement, the Parties have
disclosed and furnished and in the future may disclose or furnish to
each other Confidential Information. Confidential Information does
not include information that: (a) is or becomes part of the public
domain through no fault or breach on the part of the Recipient, any
of its subsidiaries, affiliates or persons to whom Confidential
Information is disclosed; (b) was known to Recipient or any of its
subsidiaries or affiliates free of any obligation of confidentiality
at the time of Discloser's communication thereof to Recipient and
such knowledge can be proven by appropriate evidence; (c) is
subsequently rightfully obtained by Recipient or any of its
subsidiaries or affiliates from a third party without an obligation
to keep such information confidential; (d) is independently developed
by Recipient or any of its subsidiaries or affiliates without the use
of any Confidential Information or any breach of this Agreement or
the NDA; (e) is approved in writing for public release by Discloser;
or (f) is required to be disclosed by governmental or judicial
action, provided that the Recipient has first given Discloser
reasonable notice of such requirement and fully cooperates with
Discloser in seeking confidential treatment for any such disclosure.
Confidential Information provided in tangible form shall be clearly
marked as proprietary. With respect to any Products, any technical
information, including but not limited to circuit layout, design, or
software, embedded in any such Product is Confidential Information
notwithstanding the absence of any proprietary marking on such
Product. Confidential Information provided orally will be considered
proprietary if Discloser says it is proprietary at the time of oral
disclosure and summarizes it in a proprietary writing provided to
Recipient within thirty (30) days of the oral disclosure. All of the
protection and restrictions contained in this Agreement as to the use
and disclosure of Confidential Information shall apply during said
thirty (30) day period.
Recipient shall:
(a) hold Confidential Information in confidence using the same
degree of care as it normally exercises to protect its own
proprietary information,
(b) restrict disclosure and use of the Confidential Information
to employees (including any contractors or consultants)
with a need-to-know, and not disclose it to any other
parties,
(c) advise those employees, contractors and consultants of
their confidential obligations with respect to the
Confidential Information and that such disclosures are
subject to the terms and conditions of this Article,
(d) not copy, duplicate, reverse engineer or decompile
Confidential Information, and
(e) use the Confidential Information only in furtherance of
performance under this Agreement and shall not use
Confidential Information for its own benefit.
Neither the disclosure nor furnishing of Confidential Information by
either Party shall be construed as granting to the Recipient either
expressly or by implication, estoppel or otherwise, any license or
right to make use of such Confidential Information, except as
otherwise expressly provided in this Agreement, and Recipient agrees
that neither it nor any of its subsidiaries, affiliates, officers,
directors, employees, agents or representatives will make use thereof
without the specific and express written consent of Discloser prior
to such use. Furthermore, Recipient agrees that the Confidential
Information is the sole property of the Discloser and that Recipient
has no proprietary interest in such information whatsoever.
WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT OF DISCLOSER'S WRITTEN
REQUEST, RECIPIENT SHALL RETURN TO DISCLOSER ALL CONFIDENTIAL
INFORMATION AND ALL MATERIALS CONTAINING CONFIDENTIAL INFORMATION,
INCLUDING BUT NOT LIMITED TO DOCUMENTS, DRAWINGS, PROGRAMS, LISTS,
MODELS, RECORDS, COMPILATIONS, NOTES, EXTRACTS AND SUMMARIES, WHETHER
PREPARED BY DISCLOSER OR RECIPIENT, OR ANY OF ITS SUBSIDIARIES,
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES, EXCEPT FOR ONE COPY WHICH MAY BE RETAINED IN THE
FILES OF THE PATENT OR LAW DEPARTMENT OF RECIPIENT, OR AT THE OPTION
OF DISCLOSER, SHALL DESTROY SUCH CONFIDENTIAL INFORMATION AND
MATERIALS AND PROVIDE DISCLOSER WITH AN AFFIDAVIT ATTESTING TO SUCH
DESTRUCTION.
Obligations imposed by this Article shall survive for a period of
five (5) years after termination or expiration of this Agreement for
any reason.
Recipient acknowledges and agrees that unauthorized use or disclosure
of Confidential Information may cause serious, irreparable and
significant harm, damage or loss to Discloser which will be difficult
or impossible to ascertain. Accordingly, Recipient agrees that
Discloser shall have, in addition to all other remedies at law or in
equity, the right to seek immediate injunctive relief to enforce
Recipient's obligations under this Agreement.
Each Party agrees that it will not export or re-export, directly or
indirectly, any of the other Party's Confidential Information or any
products or materials of the other Party's to any country for which
the United States of America, at the time of export or re-export,
requires an export license or other governmental approval, without
first obtaining such license or approval.
The terms and conditions of this Article supersede all prior
agreements between the Parties with respect to the subject matter
hereof, including the NDA, and any disclosures made under the NDA
shall be governed by the provisions of this Article.
8. REPRESENTATIONS, WARRANTIES AND LIMITATIONS OF LIABILITY.
8.1Representation and Warranties. Spyglass represents and
warrants to GI that:
i) all Work shall be performed in accordance with each of the
terms and conditions set forth in this Agreement,
including, but not limited to, the SOW;
ii) it and its performance of the Work shall comply with
all applicable laws;
iii) the Work shall be performed in a professional manner and of
a high quality, consistent with the Internet industry
standards; and
iv) its computer systems will allow Spyglass to continue to do
business as a viable entity and to accurately process
date/time data (including, but not limited to, calculating,
comparing, and sequencing) from, into, and between the
twentieth and twenty-first centuries, and the years 1999
and 2000, including leap year calculations
v) that all Materials prepared by Spyglass in the
performance of the Work will
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
accurately process correctly inputted date/time data
(including, but not limited to calculating, comparing and
sequencing) from, into and between the twentieth and
twenty-first centuries and the years 1999 and 2000,
including leap year calculations and Spyglass makes no
other representation or warranty regarding Year 2000
Compliance. In the event of any breach of this warranty,
Spyglass shall restore the Materials to the same level of
performance as warranted herein, or repair or replace the
Materials with conforming Materials so as to minimize
interruption to GI and its customers' ongoing business
processes, at Spyglass' sole cost and expense.
vi) that the prices charged to GI for any licenses and/or other
intellectual property rights are in compliance with the
requirements of Article 6.
8.2 Joint Representations. GI and Spyglass hereby each
represent and warrant that it has all requisite corporate power and
authority to enter into this Agreement and to perform the obligations
set forth herein. In addition, each Party hereby represents and
warrants that the execution, delivery and performance of this
Agreement will not result in a violation of any agreement to which
such Party is subject. EXCEPT AS PROVIDED ABOVE, NEITHER PARTY
MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES CONCERNING THE WORK TO
BE PROVIDED HEREUNDER OR ANY SOFTWARE OR OTHER PRODUCTS TO BE
DEVELOPED HEREUNDER AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING OUT OF THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR
NON-INFRINGEMENT.
8.3 Limitation of Liability. EXCEPT FOR PAYMENTS SPECIFIED IN
EXHIBITS B AND C TO THIS AGREEMENT AND AS PROVIDED BELOW IN ARTICLES
9 AND 10, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY
FOR ANY CAUSE WHATSOEVER WHERE THE AGGREGATE LIABILITY FOR DIRECT
DAMAGES ARISING HEREUNDER DURING THE TERM IS LESS THAN ***. IN THE
EVENT THE AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING HEREUNDER
DURING THE TERM EXCEEDS ***, EITHER PARTY SHALL BE RESPONSIBLE FOR
ALL DIRECT DAMAGES UP TO A MAXIMUM OF ***. IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY LOSS OF DATA, PROFITS, LOSS OF USE, OR FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED,
HOWEVER, THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE
8 WILL NOT APPLY WITH RESPECT TO: (I) DAMAGE OCCASIONED BY THE
WILLFUL MISCONDUCT OF A PARTY; (II) CLAIMS THAT ARE SUBJECT TO THE
INDEMNIFICATION PROVISIONS SET FORTH HEREIN; OR (III) DAMAGES
OCCASIONED BY THE BAD FAITH TERMINATION OF THIS AGREEMENT BY EITHER
PARTY. EACH PARTY SHALL HAVE A DUTY TO MITIGATE DAMAGES FOR WHICH
THE OTHER PARTY IS RESPONSIBLE.
9. GENERAL INDEMNIFICATION AND INSURANCE.
9.1 By Spyglass. Spyglass shall defend, indemnify, and hold GI,
its subsidiaries and Affiliates, and each of their respective
employees, officers, directors, attorneys, agents, and
representatives, harmless from and against any and all claims,
liabilities, expenses, losses, demands, damages, fines, penalties,
and causes of action of every kind and character from any cause
whatsoever, made, incurred, sustained, or initiated by any Person
(including any Spyglass employee, contractor, representative or any
of their respective family members), arising out of, incident to, or
in connection with the performance, non-performance, or purported
performance by Spyglass of this Agreement, or breach of its terms
except to the extent attributable to the negligence or willful
misconduct of GI.
The obligations of this clause shall survive termination of this
Agreement.
9.2 By GI. GI shall defend, indemnify, and hold Spyglass,
its subsidiaries and Affiliates, and each of their respective
employees, officers, directors, attorneys, agents, and
representatives, harmless from and against any and all claims,
liabilities, expenses, losses, demands, damages, fines, penalties,
and causes of action of every kind and character from any cause
whatsoever, made, incurred, sustained, or initiated by any Person
(including any GI employee, contractor, representative or any of
their respective family members), arising out of, incident to, or in
connection with the performance, non-performance, or purported
performance by GI of this Agreement, or breach of its terms except to
the extent attributable to the negligence or willful misconduct of
Spyglass.
9.3 Minimum Acceptable Levels of Insurance. Each Party shall,
at all times during the Term, at its sole cost and expense, and
thereafter for so long as is reasonable and customary in the
industry, or for such shorter period as the other Party requests, in
consideration of the particular circumstances, carry and maintain the
insurance coverage listed below with insurers having a "Best's"
rating of A+X or better:
a) Workers' Compensation insurance as required under
applicable state law including Employer's Liability
$100,000 (per accident) $500,000 (disease - policy limit)
$100,000 (disease - per employee);
b) Commercial General Liability insurance covering claims
for bodily injury, death, personal injury or property
damage occurring or arising out of the performance of this
Agreement, including coverage for independent contractor's
protection (required if any work will be subcontracted),
premises-operations, products/completed operations and
contractual liability
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
with respect to the liability assumed by each Party
hereunder. The limits of insurance shall not be less than:
Each Occurrence ***
General Aggregate Limit ***
Products- Completed Broad
Form Property Damage ***
Personal and Advertising
Injury Limit ***
c) Errors and Omissions coverage sufficiently broad enough to
include the Work, and specifically software development and
certification with limits of insurance not less than ***.
d) Should performance of this Agreement involve any use of
automobiles, comprehensive automobile liability insurance
covering the ownership, operation and maintenance of all
owned, non-owned and hired motor vehicles with limits of
not less than *** Combined Single Limit (Bodily
Injury/Property Damage) for bodily injury and property
damage.
9.4 Waiver of Subrogation; Evidence of Insurance. Each Party
agrees that its, its insurer(s) and anyone claiming by, through,
under or in such Party's behalf shall have no claim, right of action
or right of subrogation against the other Party and the other Party's
affiliates, directors, officers employees and customers based on any
loss or liability insured against under the insurance required by
this Agreement. The insurance limits required in this Article may be
obtained through any combination of primary and excess or umbrella
liability insurance. The insured Party shall forward to the other
Party, certificates of such insurance upon execution of this
Agreement and upon any renewal of such insurance during the Term.
The certificates shall provide that (a) the other Party be named as
an additional insured as its interests may appear with respect to
this Agreement, (b) thirty (30) days' prior written notice of
cancellation of, material change or exclusions in the policy to which
certificates relate shall be given to the other Party, and (c)
coverage is primary and not excess of, or contributory with, any
other valid and collectible insurance purchased or maintained by the
other Party. The fulfillment of such obligations, however, shall not
otherwise relieve the insured Party of any liability assumed
hereunder or in any way modify the insured Party's obligations to
indemnify the other Party or end users under this Agreement.
9.5 Maintenance of Existing Coverage. Spyglass shall not at
any time after the expiration or termination of this Agreement take
any action to alter, impair or cancel any insurance coverage that may
apply with respect to the period during which this Agreement was in
effect.
10. INTELLECTUAL PROPERTY INDEMNIFICATION.
10.1 Spyglass Indemnity. Spyglass agrees to indemnify, defend
and hold harmless GI, from and against any claims by third parties to
the extent based on a claim that any Work performed or Materials
provided by Spyglass: (a) infringes a copyright, or patent, or (b)
constitutes a misappropriation of another party's trade secret or
other proprietary information. Spyglass will bear the expense of
such defense and pay any Losses attributable to such claim.
Notwithstanding anything to the contrary elsewhere in this Section
10.1, Spyglass will have no obligation under this Article with
respect to any Losses arising from or in connection with any such
claim to the extent such Losses are caused by:
a. modifications of Materials by GI or its agents; or
b. GI's subsequent combination of any Materials with, or
operation or use thereof in combination with, items
not furnished or specified by Spyglass (other than the
combination thereof with other items required to
enable such item to be used by GI for its intended
purposes);
c. Spyglass' complying with specifications of GI; or
d. a breach of the terms of this Agreement by GI,
material to the claims of Losses incurred by Spyglass.
10.2 GI Indemnity. GI agrees to indemnify, defend and hold
harmless Spyglass against any claims to the extent based on a claim
that (1) GI provided software, or (2) any other software that
Spyglass is required by GI to use under this Agreement or any part
thereof, (a) infringes a copyright or patent or (b) constitutes a
misappropriation of another party's trade secret or other proprietary
or information. GI will bear the expense of such defense and pay
Losses attributable to such claim. Notwithstanding anything to the
contrary elsewhere in this Section 10.2, GI will have no obligation
under this Article with respect to any Losses arising from or in
connection with any such claim to the extent such Losses are caused
by:
a. modifications made by Spyglass or its agents to an
item provided by or for GI (other than modifications
made by or at the specific direction of GI);
b. the combination thereof by Spyglass or its agents
with, or the operation or use thereof in combination
with, items not furnished or specified by GI (other
than the combination thereof with other items required
to enable such item to be used by Spyglass for its
intended purposes); or
c. a breach of the terms of this Agreement by Spyglass
material to the claims or Losses incurred by GI.
10.3 Rights of Indemnitor. If any software, hardware or other
materials becomes the subject of a claim under this Article, or in
the indemnitor's reasonable opinion is likely to become the subject
of such a claim, then the indemnitor may, at its option, (i) replace
or modify the software, hardware or other materials to make it
non-infringing or may cure any claims of misuse of another's trade
secret, or (ii) procure for the indemnitee the right to continue
using the software or hardware or other materials pursuant to this
Agreement, or (iii) replace the software or hardware with reasonably
equivalent software or hardware, acceptable to the indemnitee, which
is non-infringing or which is free of claimed misuse of another's
trade secret or (iv) modify the Work or Materials to eliminate the
infringing activity.
10.4 Indemnification Procedures.
a. Notice and Control. The indemnification obligations
set forth in Articles 9 and 10 will not apply unless
the Party claiming indemnification:
(i) Notifies the other Party promptly of any matters
in respect of which the indemnity may apply and
of which the notifying Party has actual
knowledge, in order to allow the indemnitor the
opportunity to investigate and defend the matter;
provided, that the failure to so notify will only
relieve the indemnitor of its obligations under
this article if and to the extent that the
indemnitor is prejudiced thereby; and
(ii) Gives the other Party reasonable opportunity to
control the response thereto and the defense
thereof, including any agreement relating to the
settlement thereof; provided that, the indemnitee
will have the right to participate in any legal
proceeding to contest and defend a claim for
indemnification involving a third party and to be
represented by legal counsel of its choosing, all
at the indemnitee's cost and expense.
b. The indemnitor will not be responsible for any
settlement or compromise made without its consent.
The indemnitee agrees to cooperate in good faith with
the indemnitor at the request and expense of the
indemnitor.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
11. TERM.
11.1 Term. The initial term of this Agreement will begin on the
Effective Date and will terminate on October 31, 2001 (the "Term").
GI may, upon at least six (6) months' prior written notice to
Spyglass, elect to extend the Term for an additional period of one
(1) year. The Minimum Payment for this renewal period shall be ***.
During the renewal period, the Payment Schedules set forth in
Exhibits B and C shall increase by *** over the immediately preceding
annual period.
11.2 Termination for Change of Control. GI shall have the right
to terminate this Agreement in the event that: i) any of the
companies listed on Exhibit E acquire beneficial ownership (within
the meaning of Section 13(d) of the Securities Exchange Act of 1934)
of shares of Common Stock of Spyglass representing 20% or more of the
outstanding Common Stock of Spyglass; or ii) GI exercises its
purchase option under the Operating Agreement.
11.3 Termination for Cause. This Agreement may be terminated
prior to the expiration of its Term (i) by either Party in the event
the other Party materially breaches a provision of this Agreement and
the breaching Party fails to cure such breach, (including a failure
to make payments when due) within thirty (30) days following receipt
of notice of such breach from the non-breaching Party; (ii) by either
Party in the event any assignment is made by the other Party for the
benefit of creditors, or if a receiver, trustee in bankruptcy or
similar officer shall be appointed to take charge of any and all of
the other parties property, or if the other party files a voluntary
petition under federal bankruptcy laws or similar state statutes or
such a petition is filed against the other party and is not dismissed
within sixty (60) days; (iii) if the Parties cannot agree upon a
Statement of Work within the six (6) week period set forth herein, or
as otherwise agreed to by the Parties.
11.4 Termination based on Economic Conditions. At any time
after the first anniversary of the Effective Date, GI may terminate
this Agreement upon *** days' prior written notice if it determines
in its reasonable judgment that supply or market conditions will not
support the continued development and/or production of its products
that utilize the Work, provided that GI pays Spyglass upon
termination, the dollar amount equal to ***.
11.5 Effects of Termination.
a. Upon expiration or termination of this
Agreement for any reason, GI shall remain liable for any
charges, payments or expenses due to Spyglass which
accrued prior to the termination date. Upon any
termination of this Agreement, in the event that any
employees of the Subsidiary are not absorbed by Spyglass
(which shall have the first right to hire the employees
working for the Subsidiary) or GI, GI shall pay all
reasonable costs incurred by Spyglass in connection with
the termination of such personnel, which Spyglass would
otherwise be obligated to pay pursuant to its severance
policies then in effect. A copy of Spyglass' severance
policies as of the Effective Date are attached hereto as
Exhibit G, and Spyglass shall provide GI with each
revision to said policies throughout the Term. In
addition, GI shall pay any reasonable costs which
Spyglass is obligated to pay with respect to any
facilities or amenities provided to the Subsidiary
personnel, as well as to the GI employees, customers and
ISVs working in the DSIC.
b. Upon expiration or temination of this
Agreement for any reason, GI shall have the right but
not the obligation, to purchase any equipment purchased
by Spyglass pursuant to Section 2.5 at Spyglass'
depreciated book value. Additionally, Spyglass agrees
that it shall not under any circumstances, sell or
transfer such equipment to any of the entities set forth
in Exhibit E.
12. DISPUTE RESOLUTION.
12.1 Management Committee Review. During the Term, disputes,
controversies or claims may arise between the Parties. To minimize
the expense to and impact on each party of formally resolving such
disputes, controversies and claims, the following procedures shall be
followed.
a. If the Parties are unable to resolve a dispute,
controversy or claim, upon the provision of notice by
either party to the other Party, the matter will
immediately be referred to the Management Committee.
b. The representatives of the Parties on the Management
Committee will meet within ten (10) business days of
their receipt of the notice for the purpose of
resolving the dispute, controversy or claim. Such
Management Committee representatives will discuss the
relevant issues and will attempt to negotiate a
mutually satisfactory resolution in good faith,
without using formal proceedings.
c. During the course of negotiations, all reasonable
requests made by one Party to another for
non-privileged information, reasonably related to this
Agreement, will be honored to advise a Party of the
other's position.
d. No formal proceedings for the resolution of a dispute,
controversy or claim may be commenced until either or
both of the appointed senior management
representatives conclude in good faith that amicable
resolution through continued negotiation of the matter
is not likely.
12.2 Continuation of Obligations. Except for failure to make
payments or where clearly prevented by the dispute, both Parties
agree to continue performing their respective obligations under this
Agreement while the dispute is being resolved unless and until such
obligations are terminated or expire in accordance with the
provisions of this Agreement.
12.3 Arbitration.
a. Procedures. Any dispute, controversy or claim arising
out of or related to this Agreement that the parties
are unable to resolve through informal discussions or
negotiations as provided above in Section 12.1 will be
submitted to binding arbitration.
b. The Party requesting arbitration will notify the
American Arbitration Association ("AAA") and the other
Party in writing describing in reasonable detail the
nature of the dispute, and will request that the AAA
furnish a list of five (5) possible arbitrators who
shall have at least five (5) years experience in
information and cable television technology matters.
Each Party shall have fifteen (15) days to reject two
of the proposed arbitrators. If only one individual
has not been so rejected, he or she shall serve as
arbitrator; if two or more individuals have been so
rejected, the AAA shall select the arbitrator from
those individuals.
c. The arbitration will be governed by the Commercial
Arbitration Rules of the AAA, except as expressly
provided in this Article. However, the arbitration
will be administered by any organization mutually
agreed upon by the Parties. If the Parties are unable
to agree upon the organization to administer the
arbitration, it will be administered by the AAA. The
arbitrator may not amend or disregard any provisions
of this Article.
d. The arbitrator will allow such discovery as is
appropriate to the purposes of arbitration in
accomplishing fair, speedy and cost effective
resolution of disputes. The arbitrator will reference
the rules of evidence of the Federal Rules of Civil
Procedures then in effect in setting the scope and
direction of such discovery. The arbitrator will not
be required to, but is not prohibited from, making
findings of fact or rendering opinions of law.
e. The arbitration shall be held in Delaware and shall
commence within thirty (30) days or the earliest
available date set by the AAA, whichever is earlier.
f. The decision of an award rendered by the arbitrator
will be final and binding on the Parties. Judgment on
the award may be entered in and enforced by any court
of competition jurisdiction.
g. Each Party agrees to pay to bear joint and equal
responsibility for all fees payable to the American
Arbitration Association and the arbitrator with
respect to any arbitration initiated hereunder.
h. In no event shall the arbitrator hear or rule upon a
demand for penalties or punitive damages. Punitive
damages are expressly excluded from this arbitration
provision and each Party agrees it has no right to
recover, and hereby waives the right to recover,
punitive damages from the other Party. Any award
which includes or purports to include penalties or
punitive damages shall be void as to the amount of
penalties or punitive damages awarded.
12.4 Enforcement. Other than those matters involving injunctive
relief as a remedy, or any action necessary to enforce the award of
the arbitrator, the provisions of this Section are a complete defense
to any suit, action or other proceeding instituted in any court or
before any administrative tribunal with respect to any dispute,
controversy or claim arising out of or related to this Agreement or
the creation, validity, interpretation, breach or termination of this
Agreement. Nothing in this Section prevents the Parties from
exercising the termination rights set forth in this Agreement.
12.5 Work During Arbitration. Spyglass shall continue to
provide the Work in accordance with this Agreement, and GI will
continue to make payments during the arbitration proceedings unless
Spyglass is bringing an action under this Section for nonpayment by
GI, in which case the continued provision of Work is contingent upon
GI's placing the unpaid amounts in an escrow account pending
resolution of the dispute.
12.6 Enforcement; Immediate Injunctive Relief. The Parties agree
that the exclusive method of dispute resolution is set forth in the
procedures established in Section 12.3 and the rights and remedies
provided in this Agreement are the exclusive rights and remedies for
the Parties as against each other and there shall be no other rights
or remedies whether they be in contract, tort, strict liability,
equity or otherwise. The Parties agree that the only circumstances in
which disputes between them will not be subject to the arbitration
provisions of this Agreement are instances where the damages to a
Party resulting from a breach will be so immediate, so large or
severe, and so incapable of adequate redress after the fact that a
temporary restraining order or other immediate injunctive relief is
the only adequate remedy. If a Party files a pleading with a court
seeking immediate injunctive relief and the injunctive relief sought
is not awarded in substantial part, the Party filing the pleading
seeking immediate injunctive relief shall pay all of the costs and
attorneys' fees of the other Party.
13. GENERAL.
13.1 Notices. Wherever one Party is required or permitted to
give written notice to the other under this Agreement, such notice
will be given by hand, by certified U.S. mail, return receipt
requested, by overnight courier, or by fax and addressed as follows:
If to GI: with a copy to:
General Instrument Corporation General Instrument Corporation
000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Exec. VP, Business Attn: Senior VP and General
Development Counsel
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to Spyglass: with a copy to:
Spyglass, Inc. Xxxx and Xxxx LLP
0000 Xxxx Xxxxx Xxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxxxxx X.Xxxxxxxxxx,
Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
All such notices shall be effective upon receipt. Either Party
may designate a different notice address from time to time upon
giving ten (10) days' prior written notice thereof to the other
Party.
13.2 Relationship of the Parties.
a. Spyglass is and shall at all times during the Term
remain, an Independent Contractor. This Agreement
will not be construed as creating any partnership,
agency relationship or other form of legal association
that would impose liability upon one Party for the
other Party's actions or failure to act. Spyglass has
no authority, express or implied, to assume or create
any obligations, responsibility, or liability on
behalf of GI or to bind GI in any manner whatsoever
and GI has no authority, express or implied, to assume
or create any obligations, responsibility, or
liability on behalf of Spyglass or to bind Spyglass in
any manner whatsoever.
b. Each Party shall be responsible for the management,
direction and control of its employees and other
agents and such employees and other agents will not be
employees of the other Party.
c. Except where and to the extent this Agreement
expressly provides that Spyglass will perform certain
identified services as agent for GI, the Work shall be
performed under the control, management and
supervision of Spyglass.
13.3 Assignment. Neither Party may, or will have the power to,
assign this Agreement or any of its rights or obligations hereunder
without the prior written consent of the other Party.
Notwithstanding any provision to the contrary, either Party will be
permitted to assign all or any portion of its rights and obligations
under this Agreement to:
a. another entity that acquires all or substantially all
of its assets;
b. an Affiliate; or
c. a successor in a merger, acquisition or divestiture of
all or a portion of such Party.
Such assignment shall not relieve the assigning Party of its
obligations under this Agreement. This Agreement will be binding on
the Parties and their respective successors and permitted assigns.
Except as expressly permitted in this Agreement any other purported
assignment of the rights or obligations of a Party hereunder shall be
null, void and of no force or effect.
13.4 Counterparts. This Agreement may be executed in one or
more parts, all of which when taken together will constitute one
single agreement between the Parties.
13.5 Headings. The Section headings used in this Agreement are
included for ease of reference and convenience and shall not be
considered in interpreting or construing this Agreement.
13.6 Compliance with Laws. Spyglass' performance under this
Agreement, as well as all Work provided hereunder, shall comply with
all applicable U.S. federal, state and local laws and ordinances, and
all orders, rules, regulations and requirements thereunder.
13.7 Governing Law. This Agreement shall be governed by and
construed in accordance with laws of the State of Delaware, without
regard to its choice of law provisions.
13.8 Waiver. The waiver by either Party of a breach or a
default of any provision of this Agreement by the other Party shall
not be construed as a waiver of any succeeding breach of the same or
any other provision, nor shall any delay or omission on the part of
either Party to exercise or avail itself of any right, power or
privilege that it has, or may have hereunder, operate as a waiver of
any right, power or privilege by such Party.
13.9 Construction. The negotiating and drafting of this
Agreement has been participated in by each Party and not by either
Party to the exclusion of the other and, for all purposes, this
Agreement shall be deemed to have been drafted jointly by the
Parties. The language used in this Agreement shall be deemed to be
the language chosen by the Parties to express their mutual intent,
and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
13.10 Survival. The obligations and rights of the Parties set
forth in Articles 5, 7, 9, 10, and 13, and Sections 8.2, 11.6, and
12.3 shall survive any expiration or termination of this Agreement
13.11 Severability. Any provisions hereof which are
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdictions, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
or affecting the validity or enforceability of such provision in any
other jurisdiction.
13.12 Excused Performance. A Party shall be excused from
performing an obligation under this Agreement and shall not be
considered in default to the extent such Party's performance has been
prevented, in whole or in part, by (i) an act of Force Majeure, or
(ii) the non-performance of any other Party to this Agreement;
provided, however, that a Party shall not be so excused from the
performance of its obligations under this Agreement to the extent
that the other Party's non-performance is attributable to the Party
seeking to be excused from the performance of its obligations under
this Agreement failing to perform its obligations under this
Agreement.
13.13 Suspension of Performance. If either Party is
prevented by Force Majeure from performing any of its obligations
under this Agreement, other than making payments due and payable
hereunder, it is agreed that upon such Party's providing written
notice and full particulars of such Force Majeure to the other Party
as soon as practicable after commencement of the occurrence of the
cause relied on, the obligations of the Party giving such notice, so
far as they are affected by such Force Majeure, shall be suspended
but only during the continuation of such inability, and the affected
Party shall undertake to remedy such cause or inability as soon as
practicable.
13.14 Force Majeure Notification. The notice referred to in
the preceding Section shall be given by the Party claiming Force
Majeure hereunder and shall describe the nature of the Force Majeure
event, the extent of the impact on the ability of such Party to
perform its obligations hereunder and the expected timetable for
remedying the Force Majeure. If it appears that the Force Majeure
cannot be remedied, the notice shall so state. Should any Force
Majeure event occur, the Parties agree to cooperate to determine how
such event can best be remedied to avoid, or minimize the duration
of, any suspension hereof including, but not limited to, good faith
negotiations to modify this Agreement to allow for the continuation
of the affected performance. When the event of Force Majeure has
ceased or been remedied, the Party whose performance has been
affected shall provide written notice to the other Party stating that
the Force Majeure event has ceased or been remedied.
13.15 Press Release. Neither Party shall issue any form of
news release regarding this Agreement or any other arrangement
entered into in connection therewith, without the prior written
consent of the other Party, which consent shall not be withheld
unreasonably, except with respect to matters required to be disclosed
pursuant to applicable securities laws.
13.16 Entire Agreement. This Agreement and all Exhibits
and attachments hereto as well as the NDA (in accordance with the
provisions of Article 7) constitute the final written expression of
all terms of the Agreement relating to the transactions described
herein. This Agreement supersedes all previous communications,
representations, agreements, promises or statements, either oral or
written, with respect to such transactions. No addition to or
modification of any provision of this Agreement will be binding
unless made in writing and signed by both Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the Effective
Date.
GENERAL INSTRUMENT CORPORATION SPYGLASS, INC.
By: /s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive VP Title: EVP Business Development
Date: 10/19/98 Date: 10/19/98
EXHIBIT A
Statement of Work
TO BE PREPARED JOINTLY BY THE PARTIES IN ACCORDANCE WITH SECTION
2.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT B
Payment Schedule
Dedicated ResourcesResources
Position Annual Rate Annual Rate Annual Rate
Year 1 Year 2 Year 3
Project Manager *** *** ***
Architect *** *** ***
Engineer *** *** ***
QA Specialist *** *** ***
Technical Doc Specialist *** *** ***
Practice Manager *** *** ***
Systems Administrator *** *** ***
Administrator *** *** ***
The above rates shall be *** for any dedicated resources that are
permanently assigned to a GI facility.
Spyglass SpecialistsSpecialists
Position Hourly Rate Hourly Rate Hourly Rate
Year 1 Year 2 Year 3
Project Manager *** *** ***
Architect *** *** ***
Engineer *** *** ***
QA Specialist *** *** ***
Technical Doc Specialist *** *** ***
Practice Manager *** *** ***
Position Descriptions
Project Manager _ Knowledgeable in all aspects of software product
development cycles and software support issues. Spyglass Product
Managers will have day to day management responsibility of the
different groups within the DSIC. Core functions of the Spyglass
Program Manager are:
[_] Responsible for day-to-day management of the project groups
(i.e. Development, SI&T, etc.)
[_] Responsible for the development and management of project
work plans
[_] Communicate project direction, status, issues, and changes
to the appropriate management personnel
[_] Manage project issues and change management processes
[_] Monitor project progress and project reporting related
status
[_] Assist in managing project costs within the budget
Architect _ Knowledgeable in all aspects of the technologies being
implemented and able to develop large scale system design. Spyglass
Architects focus at a strategic level as opposed to tactical
implementation. Core functions of the Spyglass Architects are:
[_] Provide technical understanding of the project
[_] Provide technical understanding of the tools and
technologies being deployed
[_] Provide technical leadership in the system design and
architecture
[_] Participate in appropriate project planning sessions
[_] Responsible for dissemination of appropriate technical
knowledge to the client
Engineer _ Knowledgeable in the technologies being implemented.
Spyglass engineers will provide support to General Instrument as
appropriate. Core functions of the Spyglass Engineers are:
[_] Participate in appropriate aspects of application
development (i.e. analysis, design, construction, testing &
implementation)
[_] Participate in appropriate project planning sessions
[_] Responsible for the completion of assigned program
deliverables
[_] Responsible for dissemination of appropriate technical
knowledge to client
[_] Provide technical support to GI customers
[_] Solve technical problems in area of expertise
[_] First point of contact for customer service
QA Specialist _ Knowledgeable in software engineering development.
Spyglass QA specialists will be responsible mainly in the SI&T and
certification functions. Core functions of the Spyglass QA Specialist
are:
[_] Design, implement, and execute test procedures and cases
[_] Develop the associated automation framework for testing
[_] Recognize additional testing requirements within existing
test procedures and cases
[_] Independently prepare expected results for test cases
[_] Identify, document, and resolve all discrepancies
Technical Documentation Specialist _ Experienced in a wide range of
technical communications deliverables. Spyglass Technical
Documentation Specialists will document the technical information
regarding the DSIC. Core functions of the Spyglass Technical
Documentation Specialist are:
[_] Responsible for the creation of technical documentation
[_] Responsible for the creation of any training materials
[_] Responsible for the creation of the acceptance plan
[_] Responsible for maintenance of a bulletin board for support
issues
Practice Manager _ Knowledgeable in business and technical issues
affecting the organization and industry. Spyglass Management
Consultants will oversee and manage the entire DSIC. Core functions
of the Spyglass Management Consultant are:
[_] Responsible for the relationship with General Instrument
and overall success of the DSIC
[_] Provide business and technical understanding of the
organization and industry
[_] Provide knowledge regarding technologies and deliverables
[_] Provide resolutions to outstanding issues
[_] Assist in project planning and project charter development
[_] Provide business process support
[_] Overall budget and project responsibility
System Administration _ Experienced in the installation and
maintenance of hardware and software to support the day to day
operations of the DSIC. Spyglass System Administrators will setup
remote facilities for the DSIC. Core functions of the Spyglass System
Administrator are:
[_] Responsible for the installation and maintenance internal
networks
[_] Responsible for the installation and maintenance of day to
day hardware and software needs
[_] Purchase, negotiate, and research new hardware and software
[_] Maintain all of the internal infrastructure for remote
sites
[_] Maintain relationships with external vendors in regards to
infrastructure hardware and software
Administration _ Experienced in providing support to the day to day
operations of the DSIC. Core functions of the Spyglass System
Administrator are:
[_] Responsible clerical type of functions
[_] Responsible for providing the necessary reporting of the
DSIC
[_] Responsible for the coordination of external usage of lab
time, equipment, etc.
[_] Responsible for tracking software and equipment
[_] Provide assistance to Spyglass and General Instrument
management in the running of the DSIC facilities
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT C
A. Staffing Schedule
Q1 Q2 Q3 Q4 Total Total Total
Position Year Year Year Year Year Year Year
1 1 1 1 1 2 3
Project Manager *** *** *** *** *** *** ***
Architect *** *** *** *** *** *** ***
Engineer *** *** *** *** *** *** ***
QA *** *** *** *** *** *** ***
Technical Writer *** *** *** *** *** *** ***
Management *** *** *** *** *** *** ***
System *** *** *** *** *** *** ***
Administration
Administration *** *** *** *** *** *** ***
Totals *** *** *** *** *** *** ***
Personnel Qualifications
1. Project Manager
2. Architect
3. Engineer
4. QA
5. Technical Writer
6. Management
7. System Administration
8. Administration
EXHIBIT D
Key Employees
TO BE IDENTIFIED JOINTLY BY THE PARTIES DURING THE TERM
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT E
Cable Industry EntitiesIndustry EntitiesEntities
List of Cable Entities, including all Affiliates thereof, in
both Domestic and International Markets
***
Exhibit F
Form of GI's Invention and Nondisclosure Agreement
General Insturment Logo (Registered Trademark)
NON-DISCLOSURE AGREEMENT
Agreement made this day of 199__, by and between GENERAL
INSTRUMENT CORPORATION, having an office at 000 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Company") and
________________________, having an office at
_____________________________________ ("Recipient").
1. Recitals. The Company desires to disclose, and Recipient desires
to receive, information which is deemed to be confidential, secret
and/or proprietary to the Company for the purpose of enabling the
Recipient to provide services to Spyglass DSIC, Inc. in support of an
agreement with the Company.
2. Definition. "Confidential Information" shall mean any and all
information disclosed by the Company to Recipient, including, without
limitation, system concepts, electronic configurations, component
specifications, logic diagrams, equipment designs, system designs,
system architecture, protocols, software, processes, financial
matters, business matters, research programs and any information
which can be obtained by examination, testing or analysis of any
hardware, software or any component part thereof provided by Company
to Recipient.
3. Protection of Confidential Information. In consideration of the
Company disclosing from time to time at its own discretion certain of
its Confidential Information to Recipient or its officers, employees
or agents, Recipient agrees that it shall use the Confidential
Information only for the purposes stated in this Agreement and that
it will not disclose at any time, nor permit its officers, employees
or agents to disclose at any time (either during their respective
employment by Recipient or thereafter), nor appropriate or use on its
own behalf or on the behalf of others, any Confidential Information,
except as otherwise provided herein, without in each instance first
obtaining the Company's written consent thereto. Except as necessary
to fulfill the purposes of this Agreement, Recipient further agrees
not to make, or permit to be made by its officers, employees or
agents, copies, abstracts or summaries of any Confidential
Information, including, but not limited to, pictures, drawings,
specifications, plans, data, notes and reports embodying any
Confidential Information. Recipient further agrees to return to the
Company, within ten (10) days following the Company's request, all
such documents or other embodiments of any Confidential Information.
Recipient acknowledges and agrees that all Confidential Information
disclosed by the Company is provided AS IS without any warranty,
whether express or implied, as to its accuracy, completeness or use
for a particular purpose unless otherwise specifically set forth in
writing by the Company.
4. Exceptions. The obligations under this Agreement shall not
apply to Confidential Information which (a) is available to the
public by publication in a single source; (b) is rightfully received
from a third party without restriction on disclosure and without
breach of this Agreement; (c) is independently developed by the
receiving party provided that any person developing same have not had
access to the Confidential Information; (d) is approved for release
by written authorization of the Company; (e) is disclosed pursuant to
a requirement of a governmental agency or by judicial requirement.
5. No Rights Granted. This Agreement shall not be construed as
granting or conferring, either expressly or impliedly, any rights,
licenses or relationships by the furnishing of Confidential
Information specified above or pursuant to this Agreement. Without
in any way limiting the foregoing it is specifically understood and
agreed that Recipient shall in no way obtain any copyright in any
computer program furnished hereunder nor in any translation,
modification, correction or addition thereto.
6. Equitable Remedies. Recipient acknowledges and agrees that the
unauthorized use or disclosure of Confidential Information will cause
serious, irreparable and significant harm, damage or loss to the
Company, which will be difficult or impossible to ascertain.
Accordingly, Recipient agrees that the Company will have, in addition
to all other remedies at law or in equity, the right to seek
immediate injunctive relief to enforce Recipient's obligations under
this Agreement. In the event of a breach of this Agreement by
Recipient, all costs, including reasonable attorneys' fees, incurred
by the Company in enforcing this Agreement shall be borne by
Recipient.
7. Entire Agreement. This Agreement is the entire agreement
between the parties with respect to the subject matter contained
herein and supersedes all prior or contemporaneous oral or written
agreements concerning such subject matter.
8. Governing Law. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Pennsylvania and the parties
hereto agree to submit themselves to the jurisdiction of all federal
and state courts within such Commonwealth.
9. Amendments or Waivers. This Agreement may not be amended
except by written agreement signed by duly authorized representatives
of both parties. No failure to or delay in exercising any right
under this Agreement will operate as a waiver of such right.
10. No Future Obligations and Non-Exclusivity. Neither this
Agreement nor any obligation undertaken hereby shall obligate either
party to enter into any further business relationship. Except as
otherwise agreed to in writing by the parties and subject to the
terms of this Agreement, either party may meet, exchange information,
enter into agreements and conduct business of any kind with third
parties, to the exclusion of the other party hereto, relating to the
purpose or project for which Confidential Information is disclosed
hereunder.
11. Publicity. Neither party shall publicly announce or disclose
the terms of this Agreement, or advertise or release any publicity
regarding this Agreement or the fact that the parties are engaged in
discussions, without the prior written consent of the other party.
This provision shall survive the expiration, termination or
cancellation of this Agreement.
12. Binding Effect. This Agreement shall be binding on and
inure to the benefit of the Parties and their respective successors
and assigns, but no Party shall have the power to assign this
Agreement or any rights or obligations hereunder without the prior
written consent of the other Party hereto or as otherwise provided
herein. Notwithstanding the foregoing, a Party may, without the
consent of the other Party, assign its rights and obligations under
this Agreement to any successor entity in the event of such Party's
sale or transfer of substantially all of the assets or stock of such
Party or a division thereof responsible for the performance of such
Party's obligations hereunder, or in the event of a merger,
consolidation or reorganization; provided, however, in any such
event, such assignor shall not be relieved of any of its obligations
hereunder except to the extent performed or satisfied by the
assignee.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
General Instrument Corporation
By:__________________________
Name:
Title:
RECIPIENT:
By:___________________________
Name:
Title:
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit G
Spyglass' Severance Policies
November 3, 1997
<>
<>
<>
Dear <>:
To remain competitive in today's market, Spyglass, Inc. has found it
necessary to change its business strategies and restructure some
organizations. Because of these business decisions, it is necessary
to inform you that your employment with Spyglass will be terminated.
This letter informs you that effective today, Spyglass is giving you
a *** day notification period. During this period, you will receive
***. You are not expected ***.
At the conclusion of the notification period on December 3, 1997,
your employment with Spyglass will officially terminate. If you
agree to the terms contained in this letter agreement, you will then
be eligible for the following severance package: Employees with up
to one (1) year of service shall receive *** of severance pay.
Employees with one year or more of services shall receive *** of
severance pay for every *** worked. Your are eligible to be paid
<> Weeks of severance (through <>) at ***. Such
salary payments shall continue to be made in accordance with the
Company's normal payroll practices and be subject to all applicable
withholding requirements. Paid time leave shall continue to accrue
through December 3, 1997 and will be included in your termination
check to be paid on December 3rd.
Because the purpose of this severance package is to ease our
transition to new employment you will be provided with up to *** of
outplacement assistance; however, your outplacement assistance and
severance payments will cease upon your acceptance of other
employment. You agree that you will notify the Company promptly upon
acceptance of any employment elsewhere.
In addition, the company will pay for the medical and dental benefits
you presently c carry through <> based on your acceptance of
this agreement. You may elect to continue your medical and dental
coverage subsequent to <> at your expense, subject to the
COBRA stipulations. You will be sent further information regarding
extending these benefits upon termination.
All stock options available to be exercised as of December 3, 1997
must be executed within ninety (90) days from termination (March 3,
1998).
Acceptance of this agreement acknowledges yo0u concurrence with the
following terms.
.You acknowledge the continuing applicability of the provisions of
the Invention and Non-Disclosure Agreement executed by you, between
Spyglass and you.
.You agree that you will not make any negative or derogatory comments
or disclose any negative or derogatory information about the Company
or its management, business, personnel, products or services. The
Company agrees that it will not make any negative or derogatory
comments or disclose any negative or derogatory information about you
or your employment with the Company.
.On behalf of yourself, your agents, representatives, attorneys,
assigns, heirs executors and administrators, you hereby release and
forever discharge the company and its employees, officers, directors,
shareholder, representatives and agents from any and all claims that
you have relating to or pertaining to your employment or the
termination thereof or to your ownership of shares or options to
acquire shares in the Company, or any other claim that arose or could
have arisen on or before the date of this letter agreement, including
but not limited to claims in tort or contract, under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. s2000e et. Seq., the American
with Disabilities Act, 42 U.S. C. s12101 et. seq., the Age
Discrimination in Employment Act, 29 U.S.C. s621 et. seq., the Civil
rights Act, Mass.Gen L. c 12 xx11H11I et seq., the Equal Rights Act,
mass. Gen L. c93 s102 et seq., the Mass Gen L. c 151B x1 et seq. and
damages arising out of all employment discrimination, wrongful
discharge or other common law claims excepts any and all such claims
which may arise out of the company's nonperformance of its
obligations under this letter agreement. You represent and warrant
that you have not filed any complaints, charges or claims for relief
against the Company with any local, state or federal court or
administrative agency, with currently are outstanding.
.This letter agreement shall inure to the benefit of an be binding
upon the parties hereto and their successors and assigns.
.You acknowledge that it would be difficult to fully compensate the
Company for damages for breach by you of any of the provisions
contained in this letter agreement. Accordingly, you specifically
agree that the Company shall be entitled to equitable relief to
enforce such provisions without the necessity of proving actual
damages.
.You agree to immediately return to Spyglass, any equipment or
property owned by the Company that your are using;
.This agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
You should consult your own attorney before signing this letter and
may take up to forty-five (45) days to do so. If, after reviewing
this letter with your attorney, you find that its terms and
conditions are satisfactory to you, sign and return this letter in
the enclosed stamped envelope. If you sign this letter, you may
change your mind an revoke your agreement during the seven (7) day
period after you have signed it. If you do not so revoke, this
letter will become a binding agreement between you and the Company
upon the expiration of the seven (7) day revocation period.
Attachment A of this letter provides you with disclosures required by
federal law regarding the employees eligible for this severance
package. By your signature below, you acknowledge that you have read
Attachment A and understand its contents.
Very truly yours,
SPYGLASS, INC.
Xxxxxxx X. Xxxxxxx
President & CEO
I hereby agree to the terms and conditions set forth above. I have
been given at least 45 days to consider this letter agreement and I
have chosen to execute this letter agreement on the date indicated
below. I intend that this letter will become a binding agreement
between me and the Company if I do not revoke my acceptance within
seven (7) days.
<. Date
Attachment
