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Exhibit 10.3
CONFIDENTIAL TREATMENT REQUESTED
PROTOTYPE DEVELOPMENT AGREEMENT
THIS PROTOTYPE DEVELOPMENT AGREEMENT ("Agreement") is made and entered
into as of the 30th day of August, 2000, ("Effective Date") by and between
General Instrument Corporation, a Delaware corporation, with its principal place
of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("MOTOROLA BCS") and
Intellon Corporation, a Florida corporation, with principal offices located at
0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 ("Intellon"). MOTOROLA
BCS and Intellon are hereinafter sometimes referred to individually as a "Party"
and collectively as the "Parties."
RECITALS
WHEREAS, MOTOROLA BCS is a leading worldwide provider of integrated and
interactive broadband access solutions, teaming with its business partners to
lead the convergence of the Internet, telecommunications and video entertainment
industries; and
WHEREAS, MOTOROLA BCS and Intellon desire to set forth their
agreements regarding the (i) the development of a prototype that will integrate
Intellon's prototype silicon chip with MOTOROLA BCS's "SURFboard DOCSIS Cable
Modem" platform and (ii) the joint promotion of MOTOROLA BCS product solutions
using Intellon's Powerline Networking Technology.
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 are hereby acknowledged, the Parties intending to be
legally bound, hereby agree as follows:
1. Definitions.
As used in this Agreement, and unless the context requires a different
meaning, the following terms have the meanings indicated (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"MOTOROLA BCS Technology" shall mean any and all Intellectual Property
Rights and Inventions originated or developed by or for MOTOROLA BCS or its
affiliates prior to the date of this Agreement and any and all enhancements,
modifications, improvements, changes, revisions and Inventions relating thereto.
"Interface Technology" shall mean any and all Intellectual Property
Rights and Inventions directly arising out of or related to the interface of any
Intellon Technology with the MOTOROLA BCS Technology and any and all
enhancements, modifications, improvements, changes, revisions and Inventions
relating thereto.
"Development Technology" shall mean any and all Intellectual Property
Rights and Inventions resulting from or arising out of MOTOROLA BCS's
development of the Prototype or MOTOROLA BCS's satisfaction of its obligations
hereunder (except Joint Technology) and any and all enhancements, modifications,
improvements, changes, revisions and Inventions relating thereto.
Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
"Intellon Technology" shall mean any and all Intellectual Property
Rights and Inventions originated or developed by or for Intellon or its
affiliates prior to the date of this Agreement and any and all enhancements,
modifications, improvements, changes, revisions and Inventions relating thereto.
"Intellectual Property Rights" shall mean all current and future
worldwide patents and other patent rights, copyrights, trade secrets, and all
other intellectual property rights, including without limitation all
applications and registrations with respect thereto.
"Invention" shall mean any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, made, solely or jointly by
one or more employees of a Party hereto.
"Joint Technology" means any Intellectual Property or Invention (other
than Interface Technology) developed with contributions from both Parties and
(i) relating to both MOTOROLA BCS Technology and Intellon Technology or (ii) not
relating to the MOTOROLA BCS Technology and not relating to the Intellon
Technology.
"Permitted Licensee" with respect to a Party means (i) each affiliate
and related company of the Party and (ii) the customers or end-users of such
Party to the extent any Joint Technology is utilized in the products or services
supplied by the Parties.
"Prototype" shall mean a prototype that integrates an Intellon
prototype silicon chip provided by Intellon with the SURFboard DOCSIS Cable
Modem Platform, which prototype is intended to demonstrate Intellon's
powerline-based home networking capability as a communication system for
potential use in MOTOROLA BCS's digital cable internetworking products,
including set-top terminals, cable modems and IP telephony devices.
2. Development.
a. MOTOROLA BCS shall use commercially reasonable efforts to
develop the Prototype pursuant to a mutually acceptable project plan (the
"Development"); provided, nothing herein shall require MOTOROLA BCS to commit or
utilize any minimum level of resources and nothing herein shall require MOTOROLA
BCS to incur any minimum level of expense as part of the Development.
b. The mutually developed project plan (the "Project Plan") shall
include the following milestones:
- Milestone #1: **********
- Milestone #2: **********
- Milestone #3: **********
c. Intellon expressly consents to MOTOROLA BCS's use of
subcontractors in connection with the performance of the Development, provided;
however, that MOTOROLA BCS shall remain responsible for the performance of all
obligations performed by such subcontractors to the same extent as if such
obligations were performed by MOTOROLA BCS
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
employees.
d. Intellon will provide MOTOROLA BCS, free of charge, with all
information, resources and technical support that is necessary or reasonably
requested by MOTOROLA BCS to support the Project Plan.
e. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT
DEVELOPMENT OF THE PROTOTYPE OR ANY EFFORTS RELATED THERETO WILL BE SUCCESSFULLY
COMPLETED. NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER PARTY WITH RESPECT TO
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER AND DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE.
3. Payment.
Simultaneous with the execution of this Agreement, as payment
for initiating the Development under Section 2, Intellon shall make a
non-refundable payment to MOTOROLA BCS in the amount of Three Million
($3,000,000). This payment shall be made by wire transfer in immediately
available funds to the bank account provided to Intellon by MOTOROLA BCS in
**********. The first installment shall be payable **********. The second
installment shall be payable ********** after the date hereof. The final
installment shall be payable ********** days after the date hereof.
4. Joint Marketing and Promotion.
a. Prior to the promotion, sale or marketing (collectively,
"Marketing") of any product incorporating MOTOROLA BCS Technology and Intellon
Technology, the Parties will use commercially reasonable efforts to negotiate
the definitive terms and conditions of a mutually acceptable marketing plan.
Neither party shall have the right to engage in any Marketing efforts with
respect to the other Party's technology, products or services without a
definitive written agreement regarding such Marketing efforts.
b. Except as expressly set forth herein, nothing herein shall
grant to either Party any right, title or interest in the other Party's
trademarks. Neither Party shall have the right to use the other Party's trade or
service marks without the prior written consent of the other Party (such consent
to be at the sole discretion of such Party).
5. [Intentionally Left Blank]
6. Intellectual Property Rights.
a. Intellon acknowledges and agrees that MOTOROLA BCS and its
licensors retain the exclusive right, title and interest to the MOTOROLA BCS
Technology, the Development Technology and the Interface Technology. Except as
expressly set forth herein, Intellon is not granted any right title or interest
whatsoever in the foregoing.
b. MOTOROLA BCS acknowledges and agrees that Intellon and its
licensors retain the exclusive right, title and interest to Intellon Technology.
Except as expressly set forth herein, MOTOROLA BCS is not granted any right
title or interest whatsoever in the foregoing.
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
c. Intellon grants to MOTOROLA BCS a non-exclusive, royalty-free,
worldwide right and license to Intellon Intellectual Property to the extent
required by MOTOROLA BCS to fulfill its obligations hereunder and for other
mutually agreeable development activities.
d. Intellon and MOTOROLA BCS grant to each other a fully paid,
non-exclusive license to use the Prototype solely for bona fide demonstration
purposes including trade show, customer site, and internal demonstrations.
e. The Joint Technology shall be jointly owned by the Parties;
provided neither Party shall have any right to license or sub-license the Joint
Technology except to Permitted Licensees. MOTOROLA BCS shall retain the entire
right, title and interest in and to any enhancements, modifications and
improvements (the "MOTOROLA BCS Improvements") made by MOTOROLA BCS to the Joint
Technology and Intellon shall retain the entire right, title and interest in and
to any improvements (the "Intellon Improvements") made by Intellon to the Joint
Technology; provided, neither Party shall have any right to license or
sub-license such improvements except to Permitted Licensees.
f. With respect to the Joint Technology, the Parties agree to
cooperate with each other to file worldwide patent applications for patents and
copyright registrations or any other rights with respect to the Joint Technology
and in preparing and prosecuting any patent application filed by the other
Party. MOTOROLA BCS shall have responsibility for filing and prosecuting any
such patents and applications and **********. Each Party shall cause to be
executed all instruments and documents as the other party may consider necessary
or appropriate to carry out the intent of this Section.
g. (i) During the Term and as long as MOTOROLA BCS is not in
material breach of this Agreement, Intellon shall not (A) prosecute or assist in
the prosecution of any claim, demand, action or cause of action against MOTOROLA
BCS, MOTOROLA BCS's affiliates, and/or their successors, or assigns, or any of
their respective directors, officers or employees, for, on account of, or
arising out of any intellectual property right of Intellon to the extent
required to be utilized by MOTOROLA BCS in the performance of this Agreement,
whether existing previously or acquired during the Term and (B) challenge or
interfere with the validity of any MOTOROLA BCS Technology.
(ii) During the Term and as long as Intellon is not in
material breach of this Agreement, MOTOROLA BCS shall not prosecute or assist in
the prosecution of any claim, demand, action or cause of action against
Intellon, Intellon's affiliates, and/or their successors, or assigns, or any of
their respective directors, officers or employees, for, on account of, or
arising out of any intellectual property right of MOTOROLA BCS to the extent
required to be utilized by Intellon in the performance of this Agreement,
whether existing previously or acquired during the Term. Notwithstanding the
foregoing sentence, GI shall not be limited, in any respect whatsoever, from
prosecuting or assisting in the prosecution of any claim, demand, action or
cause of action with respect to any Intellectual Property related to **********
including any divisional, continuation, reexamination or reissue and their
foreign counterparts.
7. Term and Termination.
a. Unless terminated earlier as provided in this Article 7, this
Agreement shall have a term extending from the Effective Date through the date
that is eighteen months after the
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
Effective Date (the "Term"); provided, either Party may terminate this Agreement
by providing the other Party with six (6) months prior written notice of such
termination.
b. Additionally, this Agreement may be terminated prior to the
expiration of its Term by either Party in the event of:
(i) a material breach of any provision of this Agreement where the
breaching Party fails to cure such breach within thirty (30) days following
receipt of notice of such breach from the non-breaching Party (except with
respect to the failure by either Party to pay any undisputed amounts due to the
other, where the event of default must be remedied within ten (10) days); or
(ii) either Party making an assignment 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 petition for reorganization of its indebtedness or other similar
activities.
c. Except in the event of a termination pursuant to Section
7(b)(i), neither Party shall incur any liability by reason of the termination of
this Agreement in accordance with the foregoing provisions.
8. Rights Following Termination. Upon termination of this
Agreement for any reason, all obligations of the Parties shall terminate, except
for the obligations and rights of the Parties set forth in Sections 2(e),
Article 6 and Articles 9 through 13 which shall survive any expiration or
termination of this Agreement.
9. Proprietary Information.
a. Each Party acknowledges that, in the course of performing its
duties and exercising its rights under this Agreement, it may obtain information
from the other Party which is of a confidential and proprietary nature
("Proprietary Information"). Such Proprietary Information may include, without
limitation, computer codes, trade secrets, know-how, inventions, techniques,
processes, programs, algorithms, schematics and related or similar data
(collectively "Technical Information") and customer lists, financial information
and sales and marketing plans (collectively, "Business Information"). Each Party
and its respective employees and permissible contractors and agents who have
been approved pursuant to Section 9(b) below shall, at all times, both during
the Term and after its termination for a period thereafter not to exceed three
(3) years, keep in trust and confidence all such Proprietary Information of the
other Party, and shall not use such Proprietary Information other than in the
course of exercising its rights and performing its duties as expressly permitted
or provided in and for the term of this Agreement; nor shall either Party or its
respective employees or agents disclose any Proprietary Information of the other
Party to any person without the other Party's prior written consent. Proprietary
Information shall not include information that: (a) is or becomes part of the
public domain through no fault or breach on the part of the receiving Party or
any of its subsidiaries, affiliates or persons to whom Proprietary Information
is disclosed; (b) was known to the receiving Party or any of its subsidiaries,
affiliates or persons to whom Proprietary Information is disclosed free of any
obligation of confidentiality at the time of the disclosing party's
communication thereof to Recipient and such knowledge can be proven by
appropriate evidence; (c) is subsequently rightfully obtained by the receiving
Party or any of its subsidiaries or affiliates from a third party without an
obligation to keep such information confidential; (d) is independently developed
by employees of the receiving Party or any of its subsidiaries or
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
affiliates without the use of or access to any Proprietary Information or any
breach of this Agreement; or (e) is required to be disclosed by governmental or
judicial action, provided that the receiving Party has first given the
disclosing Party reasonable notice of such requirement and provides reasonable
cooperation with the disclosing Party in seeking confidential treatment for any
such disclosure.
b. Each Party shall bind in writing its (i) employees, (ii) any
sub-contractors and/or agents, and (iii) any other permissible third party who
have access to the other Party's Proprietary Information to hold such
information in confidence and not to disclose any thereof except as expressly
allowed herein.
c. In the event that either Party becomes aware of any breach in
the confidentiality of the other Party's Proprietary Information, such Party
shall have the obligation to promptly inform the other Party of the actual or
suspected breach of confidentiality.
10. Indemnification.
a. Intellon Intellectual Property Infringement Indemnity.
Intellon shall defend, indemnify, and hold harmless MOTOROLA BCS, its
subsidiaries and affiliates, and each of their respective employees, officers,
directors, attorneys, agents, and representatives, from and against any damages,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of any claims by third parties that (a) any Intellon Intellectual Property
utilized or incorporated by MOTOROLA BCS under this Agreement or (b) any
combination of MOTOROLA BCS Technology with Intellon Technology pursuant to this
Agreement infringes any Intellectual Property Right of such third party.
Notwithstanding anything to the contrary elsewhere in this Article 10, Intellon
will have no obligation under this Section with respect to any damages,
liabilities, costs and expenses arising from or in connection with any such
claim to the extent caused by actions taken by MOTOROLA BCS in breach of this
Agreement, to the extent such breach is material to the claims alleged or the
damages, liabilities, costs and expenses incurred by Intellon.
b. Indemnification Procedures. The indemnification obligations
set forth in this Article 10 will not apply unless MOTOROLA BCS:
(1) Notifies Intellon in writing within thirty (30) days of the
claim of any matters in respect of which the indemnity may apply and of which
MOTOROLA BCS has actual knowledge, in order to allow Intellon the opportunity to
investigate and defend the matter; provided, that the failure to so notify will
only relieve Intellon of its obligations under this Section if and to the extent
that Intellon is prejudiced thereby; and
(2) Gives Intellon sole control of the response thereto and the
defense thereof, including any agreement relating to the settlement thereof;
provided that, MOTOROLA BCS 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 MOTOROLA
BCS's cost and expense.
c. MOTOROLA BCS agrees to provide all reasonable assistance,
information and authority necessary for Intellon to perform its obligations
under this Section. Reasonable out-of-pocket expenses incurred by MOTOROLA BCS
in providing such assistance will be reimbursed by Intellon. Intellon will not
be responsible for any settlement or compromise made without its
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
consent.
11. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS OF INFRINGEMENT OF
A PARTY'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY AMOUNT IN EXCESS OF ********** OR 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. THIS LIMITATION SHALL APPLY
EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
PROVIDED FOR HEREIN.
12. Dispute Resolution.
a. Internal Review. Any disputes, controversies and claims that
arise between the Parties shall be resolved using the
following procedures:
(1) 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 a senior management
representative of each Party.
(2) Such senior management representatives will meet
within ten (10) business days of their receipt of the
notice for the purpose of resolving the dispute,
controversy or claim and will discuss the relevant
issues and will attempt to negotiate a mutually
satisfactory resolution in good faith, without using
formal proceedings.
(3) 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.
(4) 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; provided, however, that
notwithstanding anything to the contrary, either
Party may at any time seek injunction or other
equitable relief from any court of competent
jurisdiction.
(5) In the event that the Parties cannot resolve a
dispute pursuant to this Section 12(a), either party
shall be free to pursue all available remedies.
b. Continuation of Obligations. Except for failure to make
payment of disputed amounts or where clearly prevented by the
nature of the dispute, both Parties agree to continue
performing their respective obligations under this Agreement
while the dispute is being actively discussed unless and until
such obligations are terminated or expire in accordance with
the provisions of this Agreement.
13. General.
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
a. Notices. Wherever one Party is required or permitted to give
written notice to the other under this Agreement, such notice will be Motorola
given by hand, by certified U.S. mail, return receipt requested, by overnight
courier, or by fax and addressed as follows:
If to MOTOROLA BCS: with a copy to:
General Instrument Corporation General Instrument Corporation
000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Executive VP, Business Development Attn: Senior VP and General Counsel
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to Intellon: with a copy to:
Intellon Intellon
Intellon Corporation Xxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx Xxxxxxx Xxxx. 000 Xxxxx Xxxxxx Xxxxxx
Xxxxx XX 00000 Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Financial Officer Attn: Xxxx X. Xxxxxx
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.
b. Press Releases. All press releases and other communications
regarding or relating to this Agreement or the existence of this Agreement shall
be subject to mutual approval by the Parties, such approval not to be
unreasonably withheld or delayed. Notwithstanding the foregoing, (i) MOTOROLA
BCS may notify its customers in confidence of the existence of this Agreement
for purposes of assessing customer interest in products utilizing Intellon
Technology (ii) nothing herein shall make any disclosure to the extent required
by applicable law and (iii) to any lawyers, accountants, tax advisors or other
professionals which are bound by professional rules of conduct regarding
confidential information.
c. Relationship of the Parties. Notwithstanding anything to the
contrary contained herein:
(1) Except to the extent expressly agreed to in the Alliance
Agreements, MOTOROLA BCS shall not incur, or be subject to, any cost, expense,
liability or obligation hereunder, including, without limitation, MOTOROLA BCS's
participation in the Alliance or its participation on the Alliance Board.;
(2) MOTOROLA BCS is and shall at all times during the Term remain,
an
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
independent contractor. Intellon is and shall at all times during the Term
remain, an independent contractor.
(3) This Agreement and the Party's actions relating to or arising
out of this Agreement shall not be construed (i) to give either Party the power
to direct or control the activities of the other Party, (ii) to constitute the
Parties as, or subject the Parties to any obligations or liabilities as,
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking that would impose any liability or impose any or (iii) to
permit any Party to create or assume any obligation on behalf of the other Party
for any purpose whatsoever.
(4) 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.
(5) MOTOROLA BCS and Intellon agree that this Agreement does not
create any exclusivity. MOTOROLA BCS and Intellon may meet, exchange
information, enter into agreements and conduct business relationships of any
kind with third parties, to the exclusion of the other party hereto relating to
projects similar to the project contemplated hereby. This Agreement shall not
serve to impair the right of either party to develop, make, use, procure, and/or
market products or services now or in the future that may be competitive with
those offered by the other, nor to develop and provide products to competitors
of the other party, nor require either party to disclose any planning or other
information to the other.
d. Negotiation of Definitive Agreements. The Parties hereby agree
that certain arrangements referenced herein (including, without limitation the
Project Plan pursuant to Section 2(b)) are subject to the negotiation and
execution of definitive agreements which will contain the essential terms and
conditions of such arrangements. Each Party agrees that the other Party shall
have no liability, and shall make no claim for any damage of any nature,
relating to the failure of such other Party to finalize or enter into such
definitive agreements, unless such other Party fails to negotiate such
definitive agreements in good faith.
e. 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 (and only all) of its
rights and obligations under this Agreement to:
(1) another entity that acquires all or substantially all of its
assets;
(2) an affiliate; which for purposes of this reference and this
Agreement shall mean any entity that, directly or indirectly, controls, is
controlled by or is under common control with a Party, with control having the
meaning ascribed to it under the Securities Act of 1933, as amended; or
(3) a successor in a merger, acquisition or divestiture of all or
a substantially all of such Party.
Such assignment shall not relieve the assigning Party of any
obligations surviving
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
termination 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.
f. 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.
g. 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.
h. Compliance with Laws. Both Parties' performance under this
Agreement, shall comply in all material respects with all applicable U.S.
federal, state and local laws and ordinances, and all orders, rules, regulations
and requirements thereunder. 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.
i. Governing Law and Jurisdiction.
(1) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CHOICE OF
LAW PROVISIONS.
(2) EACH OF THE PARTIES CONSENTS AND SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA AND OF
THE COURTS OF THE UNITED STATES FOR A JUDICIAL DISTRICT WITHIN THE TERRITORIAL
LIMITS OF THE COMMONWEALTH OF PENNSYLVANIA FOR ALL ACTIONS BROUGHT BY INTELLON
RELATING TO OR ARISING OUT OF THIS OF THIS AGREEMENT, AND FURTHER AGREE THAT
SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY US REGISTERED MAIL TO THE
ADDRESS SET FORTH IN THE NOTICE PROVISIONS HEREOF SHALL BE EFFECTIVE SERVICE OF
PROCESS. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE
LAYING OF VENUE IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA OR IN THE
COURTS OF THE UNITED STATES IN EACH CASE LOCATED IN THE COMMONWEALTH OF
PENNSYLVANIA AND FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(3) EACH OF THE PARTIES CONSENTS AND SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF FLORIDA AND OF THE COURTS
OF THE UNITED STATES FOR A JUDICIAL DISTRICT WITHIN THE TERRITORIAL LIMITS OF
THE STATE OF FLORIDA FOR ALL ACTIONS BROUGHT BY GI RELATING TO OR ARISING OUT OF
THIS OF THIS AGREEMENT, AND
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
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CONFIDENTIAL TREATMENT REQUESTED
FURTHER AGREE THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY US
REGISTERED MAIL TO THE ADDRESS SET FORTH IN THE NOTICE PROVISIONS HEREOF SHALL
BE EFFECTIVE SERVICE OF PROCESS. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION TO THE LAYING OF VENUE IN THE COURTS OF THE STATE OF
FLORIDA OR IN THE COURTS OF THE UNITED STATES IN EACH CASE LOCATED IN THE STATE
OF FLORIDA AND FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(4) THE PARTIES HERETO WAIVE TRIAL BY JURY IN CONNECTION
WITH ANY ACTION UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM THE RELATIONSHIP
BETWEEN THE PARTIES.
j. 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.
k. 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.
l. 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.
m. 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 (defined, below), 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. "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.
n. Suspension of Performance. If either Party is prevented by
Force Majeure from
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
12
CONFIDENTIAL TREATMENT REQUESTED
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.
o. 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.
p. Entire Agreement. This Agreement and the Stock Purchase
Agreement between General Instrument and Intellon dated August 30, 2000
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.
[Signature Page Follow]
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Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
13
CONFIDENTIAL TREATMENT REQUESTED
IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed by their duly authorized representatives.
GENERAL INSTRUMENT CORPORATION INTELLON CORPORATION
By: By:
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Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ ------------------------
Date: Date:
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13
Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
