Exhibit 2.15
INFORMATION TECHNOLOGY ACCESS AGREEMENT
THIS INFORMATION TECHNOLOGY ACCESS AGREEMENT (OR IT NETWORK ACCESS
AGREEMENT) (THE "AGREEMENT") IS MADE AND ENTERED INTO AS OF JULY 26, 2002, (THE
"EFFECTIVE DATE") BY AND AMONG NUEVA GENERACION MANUFACTURAS S.A. DE C.V., A
MEXICAN CORPORATION ("NGM"), AND PARALLAX POWER COMPONENTS, LLC, A DELAWARE
LIMITED LIABILITY COMPANY (THE "SERVICE PROVIDER").
BACKGROUND
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED ASSET PURCHASE
AGREEMENT, DATED AS OF APRIL 18, 2002(THE "APA"), SERVICE PROVIDER, AS BUYER,
AND AEROVOX INCORPORATED ("AEROVOX"), AS SELLER, SERVICE PROVIDER HAS ACQUIRED
CERTAIN INTANGIBLE PROPERTY WHICH IS UTILIZED IN CONNECTION WITH PROVIDING THE
SERVICES (AS DEFINED BELOW). SERVICE PROVIDER DESIRES TO PROVIDE THE SERVICES
UPON THE TERMS AND PROVISIONS HEREINAFTER SET FORTH:
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED
HEREIN, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS
FOLLOWS:
1. IT NETWORK ACCESS. DURING THE TERM OF THIS AGREEMENT (THE "SERVICE
PERIOD"), THE SERVICE PROVIDER HEREBY (A) AGREES TO PROVIDE NGM IN THE ORDINARY
COURSE OF NGM'S BUSINESS WITH: (I) INTERNET ACCESS AND CONNECTIVITY, (II) ACCESS
AND USE OF THE VIRTUAL PRIVATE NETWORK PURCHASED BY THE SERVICE PROVIDER FROM
AEROVOX PURSUANT TO THE APA AND (III) E-MAIL SERVICE; AND (B) AGREES TO PROVIDE
NGM WITH ACCESS TO AND USE OF, AND GRANTS NGM A NON-EXCLUSIVE, ROYALTY FREE
RIGHT AND LICENSE TO ACCESS AND USE, IN THE ORDINARY COURSE OF NGM'S BUSINESS,
THE PRMS DATABASE RELATING TO PRODUCTS PRODUCED AT NGM'S MEXICO CITY, MEXICO
PRODUCTION FACILITY AND ALL
RELATED SOFTWARE AND TOOLS CURRENTLY PROVIDED TO AEROVOX DE MEXICO, S.A. DE C.V.
BY AEROVOX (THE FOREGOING BEING HEREINAFTER COLLECTIVELY REFERRED TO AS THE
"SERVICES"), IN EACH CASE IN A SUBSTANTIALLY EQUIVALENT SCOPE TO THAT USED BY
SERVICE PROVIDER IN ITS BUSINESS. ALL SERVICES ARE BEING FURNISHED BY SERVICE
PROVIDER HEREUNDER ON AN "AS IS, WHERE IS" BASIS, AND WITHOUT ANY REPRESENTATION
OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED.
2. SUPPORT. DURING THE SERVICE PERIOD, THE SERVICE PROVIDER SHALL
PROVIDE SUCH COOPERATION AND SUPPORT TO NGM AS MAY BE REASONABLY REQUIRED TO
ENABLE NGM TO ACCESS AND USE THE SERVICES.
3. FEES; PAYMENT. (A) AS CONSIDERATION FOR THE SERVICES TO BE
PROVIDED TO NGM HEREUNDER, NGM SHALL PAY SERVICE PROVIDER MONTHLY
FEES IN ADVANCE AS FOLLOWS:
(I) NGM SHALL PAY SERVICE PROVIDER A FEE EQUAL TO US$3,000 PER MONTH
FOR THE SERVICES DESCRIBED IN SECTION 1(A) HEREOF; AND
(II) NGM SHALL PAY SERVICE PROVIDER A FEE EQUAL TO US$1,500 PER MONTH
FOR THE SERVICES DESCRIBED IN SECTION 1(B) ABOVE.
(B) SERVICE PROVIDER SHALL INVOICE NGM MONTHLY IN ADVANCE FOR SERVICES
RENDERED HEREUNDER. ALL FEES DUE HEREUNDER SHALL BE PAYABLE IN UNITED STATES
DOLLARS WITHIN TEN (10) DAYS AFTER INVOICE. SERVICE PROVIDER SHALL RETAIN ANY
FEES PAID BY NGM IN RESPECT OF THE MONTH DURING WHICH ANY TERMINATION HEREOF
SHALL OCCUR.
4. TERM; TERMINATION. (A) THE TERM OF THIS AGREEMENT SHALL COMMENCE
ON THE DATE HEREOF AND CONTINUE FOR A PERIOD OF (I) SIX (6) MONTHS HEREAFTER
WITH RESPECT TO THE SERVICES DESCRIBED IN SECTION 1(A) ABOVE, AND (II) THREE (3)
MONTHS WITH RESPECT TO THE SERVICES
DESCRIBED IN SECTION 1(B) ABOVE (IN EACH CASE WITHOUT ANY EXTENSION OR RENEWAL
PERIOD), UNLESS SOONER TERMINATED AS HEREINAFTER PROVIDED.
(B) NGM MAY TERMINATE THIS AGREEMENT AS TO THE SERVICES PROVIDED
PURSUANT TO EITHER SECTION 1(A) OR SECTION 1(B) ABOVE OR AS TO ALL SERVICES
PROVIDED HEREUNDER AT ANY TIME BY GIVING WRITTEN NOTICE OF TERMINATION TO THE
SERVICE PROVIDER NOT LESS THAN FIVE (5) DAYS PRIOR TO THE EFFECTIVE DATE OF
TERMINATION OF THE APPLICABLE SERVICES.
(C) EITHER PARTY MAY TERMINATE THIS AGREEMENT IF THE OTHER PARTY
BREACHES THIS AGREEMENT IN ANY MATERIAL RESPECT AND FAILS TO REMEDY SUCH BREACH
WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT OF WRITTEN NOTICE FROM THE
NON-BREACHING PARTY SPECIFYING IN REASONABLE DETAIL THE NATURE OF THE BREACH. IN
ADDITION, SERVICE PROVIDER MAY TERMINATE THIS AGREEMENT IF EITHER NGM OR XXXXXXX
XXXXXXX XXXXXXXX ("XXXXXXX") BREACHES THE NONCOMPETITION AGREEMENT TO WHICH
SERVICE PROVIDER, NGM AND XXXXXXX ARE PARTIES OF EVEN DATE HEREWITH IN ANY
MATERIAL RESPECT AND FAILS TO REMEDY SUCH BREACH WITHIN THIRTY (30) DAYS
FOLLOWING RECEIPT OF WRITTEN NOTICE FROM THE SERVICE PROVIDER SPECIFYING THE
NATURE OF THE ALLEGED BREACH.
5. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing, and shall be delivered by hand or sent
by reputable overnight courier service or electronic facsimile transmission
(with a copy sent by first class mail, postage prepaid) or mailed by first class
certified or registered mail, return receipt requested, postage prepaid, to the
parties at their respective addresses set forth on the signature page of this
Agreement. Notices provided in accordance with this Section shall be deemed
delivered (i) if personally delivered or sent by electronic facsimile
transmission, when received, or (ii) if sent by overnight courier service, 24
hours after deposit with such courier service, or (iii) if sent by certified or
registered mail, return receipt requested, 48 hours after deposit in the mail.
Either party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
6. Assignment. This Agreement may not be assigned by NGM without the
prior written consent of the Service Provider , provided, however, that NGM may
assign this Agreement and its rights and obligations hereunder to a successor of
such party by way of merger, consolidation or acquisition of all or
substantially all of the assets or business of such assigning party so long as
such successor shall agree to be bound by all of the terms and provisions
hereof. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
7. Entire Agreement; Amendment. This Agreement constitutes the
entire Agreement among the parties with respect to the subject matter hereof
and, unless otherwise provided herein, supersedes all prior agreements or
understandings written or oral in respect thereof. This Agreement may be
amended, modified, superseded, canceled, renewed, or extended, and the terms or
covenants hereof may be waived, only by a written instrument signed by all the
parties hereto, or in the case of a waiver, by the party waiving compliance.
8. Waiver of Breach. The failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect that
party's right at a later time to enforce the same. No waiver by any party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant contained in this Agreement.
9. Headings. The paragraph headings contained herein are for
convenience and reference only, and shall be given no effect in the
interpretation of any term or condition of this Agreement.
END OF TEXT
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF the parties have executed this IT Network Access
Agreement as of the day and year first above written.
NGM: Nueva Generacion Manufacturas S.A. de C.V.
By: /s/ XXXXXXX XXXXXXX A.
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Address for Notice: _____________________________
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SERVICE PROVIDER Parallax Power Components, LLC
By: /s/ XXXXXX X. XXXXXXX
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Address for Notice: _____________________________
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