NETBOSS SERVICE AGREEMENT Between HARRIS CORPORATION and HARRIS STRATEX NETWORKS, INC.
EXHIBIT
10.9
NETBOSS SERVICE AGREEMENT
Between
XXXXXX CORPORATION
and
XXXXXX STRATEX NETWORKS, INC.
Dated:
January 26, 2007
NETBOSS SERVICE AGREEMENT
NETBOSS
SERVICE AGREEMENT (this “Agreement”), dated as of
January 26, 2007, between
XXXXXX CORPORATION, a Delaware corporation (“Harris”), and XXXXXX STRATEX NETWORKS, INC., a
Delaware corporation (the “Company”).
WHEREAS,
Harris, the Company, Stratex Networks, Inc., a Delaware corporation
(“Stratex”), and Stratex Merger Corp., a Delaware
Corporation and wholly owned subsidiary of the Company, have
entered into an Amended and Restated Formation, Contribution and
Merger Agreement, dated as of December 18, 2006, as amended by
that certain letter agreement, dated January 26, 2007 (the
“Formation Agreement”), among parties thereto, pursuant to which the Company was formed to acquire Stratex
pursuant to the Merger (as defined in the Formation Agreement) and to receive the Contributed Assets from Harris in the Contribution
Transaction (as defined in the Formation Agreement), in each case on the terms and subject to the conditions set forth in the Formation
Agreement; and
WHEREAS, Harris and Stratex would not have entered into the Formation Agreement without the
undertakings contained in this Agreement and the execution and delivery of this Agreement is a
condition to closing under the Formation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants in the Agreements
the parties agree as follows:
Section 1. Certain Definitions. All capitalized terms used but not defined in this
Agreement shall have the meanings assigned to them in the Formation Agreement. In addition, the
following terms shall have the meanings specified below:
“Affiliate” shall have the meaning assigned to such term by Rule 405 under the
Securities Act; provided, however, that neither the Company nor any of its Subsidiaries shall be
deemed to be an Affiliate of Xxxxxx or any of its other Subsidiaries.
“Subsidiary” means, with respect to any Person, (i) any corporation more than 50% of
the outstanding Voting Power of which is owned, directly or indirectly, by such Person, any of its
other Subsidiaries or any combination thereof or (ii) any Person other than a corporation in which
such Person, any of its other Subsidiaries or any combination thereof has, directly or indirectly,
majority economic ownership or the power to direct or cause the direction of the policies,
management and affairs thereof; provided, however, that notwithstanding the foregoing neither the
Company nor any of its Subsidiaries shall be deemed to be a Subsidiary of Xxxxxx or any of its
other Subsidiaries for purposes of this Agreement.
Section 2. Assignment. As of the Effective Time, pursuant to the terms and conditions
of this Agreement, Xxxxxx hereby sells, assigns, transfers, conveys and delivers to the Company all
of Xxxxxx’ and any of its Subsidiaries’ right, title and interest in and to the arrangements
identified on Schedule A to this Agreement (the “Assigned Contracts”) to the extent
such rights, title and interests in and to such Assigned Contracts arise out of the provision of
goods and services relating to any NetBoss® integrated communications network management platform
to any Affiliate of Xxxxxx or any of its Subsidiaries (the “Assignment”).
Section 3. Assumption. As of the Effective Time, pursuant to the terms and conditions
of this Agreement, the Company hereby accepts the Assignment and assumes and agrees to pay, honor,
perform and discharge when due all of the obligations that otherwise would be provided by Xxxxxx or
one of its Subsidiaries under the Assigned Contracts (the “Assumed Liabilities”) arising
out of or resulting from the provision of goods and services relating to any NetBoss® integrated
communications network management platform to any Affiliate of Xxxxxx or any of its Subsidiaries.
Section 4. Payment for Goods and Services. Xxxxxx shall (or shall cause one of its
Subsidiaries to) pay to the Company promptly when due any amounts owed to the Company in connection
with the provision of goods and services relating to any NetBoss® integrated communications network
management platform to any Affiliate of Xxxxxx or any of its Subsidiaries pursuant to and, in
accordance with, the Assigned Contracts.
Section 5. No Representations and Warranties. Neither Xxxxxx nor the Company make any
representation or warranty, whether express or implied, in this Agreement with respect to the
Assumed Contracts or the Assumed Liabilities. Nothing contained in this Section 5 shall
limit any representation or warranty contained in the Formation Agreement or any Ancillary
Agreement other than this Agreement.
Section 6. Further Actions. Xxxxxx and the Company shall execute or cause to be
delivered to the other party such instruments and other documents, and shall take such other
actions, as the other party may reasonably request after the date hereof, for the purpose of
carrying out or evidencing the Assignment or the acceptance of the Assumed Liabilities pursuant to
this Agreement.
Section 7. NetBoss Services. (a) Subject to the terms and conditions of this
Agreement, commencing on the Effective Date, Xxxxxx shall provide the following services to the
Company in the manner, amount and quality substantially similar and consistent with the manner,
amount and quality as was being provided by Xxxxxx to the MCD Business during the six-month period
immediately prior to the Closing Date:
(i) Teaming opportunities on future External Pursuits (as defined below), including the use of
Xxxxxx’ Network Operating Center (“NOC”) to support the Company’s existing or new RMS
customers. For purposes of this Section 7, “RMS” means event management, network
reporting and consulting services, and “External Pursuits” means any pursuit pursuant to
which the Company’s NetBoss business unit assumes or undertakes responsibilities in integration,
installation or device configuration. In addition, the parties shall mutually agree on the timing
and material price structure for any additional license fees, installation, integration services,
report development and any customizations pertaining to any External Pursuits with new customers;
(ii) Provide “whitepapers” or marketing data sheets or similar documented reference material
consistent with previous practice;
(iii) Showcase the NetBoss system used by Xxxxxx and host data center tours to potential
Company customers subject to reasonable request during normal business hours and consistent with
applicable security policies and procedures;
(iv) Provide Helpdesk support to the Company twenty-four hours a day and seven days each week
in connection with telephone calls from the Company’s external clients at no cost;
provided, however, to the extent the number of trouble tickets issued exceeds 300
per month for two consecutive months, then the parties shall negotiate a rate for those trouble
tickets issued in excess of 300 per month (the “Excess Amount”), and Xxxxxx shall have no
obligation to provide support with respect to the Excess Amount until such agreement is reached;
and
(v) Provide technical support and/or consultation for any new NetBoss products being developed
by participating in alpha or beta site testing for which Xxxxxx can reasonably be expected to use
such products.
(b) Subject to the terms and conditions of this Agreement, on or after the Effective Date, the
Company shall provide the following rights and services to Xxxxxx:
(i) A non-exclusive license to use internally in accordance with the Company’s standard
license terms, (x) any NetBoss software (including, without limitation, any smart agents or
applications) or third-party software (but only to the extent the Company is able to grant such
rights with respect to third-party software) that is not contemplated by Section 2.02 or
Section 4.03 of the Intellectual Property Agreement, dated as of the date hereof, entered
into by Xxxxxx and the Company or any NetBoss maintenance/support services after the Effective
Date, including without limitation future updates, upgrades, patches and fixes as further described
in the attached NetBoss Maintenance Agreement, a copy of which is attached hereto as Schedule
B, in each case at the Company’s cost;
(ii) The right to use at no cost any new NetBoss products (other than software products as
contemplated in (b)(i) above) developed by the Company after the Effective Date, but only to the
extent that such new products are used internally by Xxxxxx;
(iii) Access to professional services of integrators and program managers at rates consistent
with previous practice with such rates to be reviewed on a calendar year basis for consistency with
market rates;
(iv) NetBoss training classes based on seat availability and a mutually agreed schedule and
location at no cost to Xxxxxx; and
(v) The right to expand Xxxxxx’ internal use of the NetBoss software at no additional cost.
For purposes of this Section 7(b), “internal” means any use by (i) Xxxxxx, its
divisions, business units and any business entity of which Xxxxxx is at least 51% owner of the
voting rights, or beneficial interests in capital, (ii) any existing Xxxxxx customer,
responsibilities under which are not assigned to the Company, and in connection with products or
services being provided by Xxxxxx to such customer, (iii) any use of the NetBoss software by
Xxxxxx, including without limitation, the use by the divisions, business units or headquarters
where such use is in support of a customer and managed on a Xxxxxx-managed asset or a similar
Xxxxxx-internal environment and (iv) any Xxxxxx division customer in connection with products or
services being provided by Xxxxxx to such customer.
The parties shall negotiate a mutually acceptable fee structure to be able to continue NetBoss
licenses or services for any divested subsidiary, division, or business unit.
Notwithstanding anything to the contrary herein, the term for the services and rights provided
in this Section 7 shall commence on the Effective Date and continue for eighteen (18)
months and shall thereafter be automatically renewed for a successive eighteen (18) month period
(each, a “Successive Period”) and at the end of each Successive Period for another
Successive Period; provided, however, that during any Successive Period, this
Agreement may be terminated by either party with ninety (90) days’ notice. Notwithstanding any
termination pursuant to the immediately preceding sentence, Xxxxxx’ license rights to the then
licensed NetBoss software as well as Xxxxxx’ right to expand internal use of such NetBoss software
shall survive.
Section 8. Governing Law and Venue; Waiver Of Jury Trial. (a) THIS AGREEMENT SHALL
BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the jurisdiction of the courts of the State of
Delaware and the Federal courts of the United States of America located in the State of Delaware
(collectively, the “Delaware Courts”) solely in respect of the interpretation and
enforcement of the provisions of this Agreement and of the documents referred to in this Agreement,
and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of
any such document, that it is not subject thereto or that such action, suit or proceeding may not
be brought or is not maintainable in any Delaware Court or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in any Delaware Court; provided, however, that notwithstanding the
foregoing each party agrees that any claim which primarily seeks injunctive relief and related
monetary claims that cannot be brought in any Delaware Court for jurisdiction reasons may be
commenced, heard and determined in any other court having proper jurisdiction over such claim. The
parties hereby consent to and grant any
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Delaware Court jurisdiction over the person of such parties and, to the extent permitted by
law, over the subject matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided
in Section 13 or in
such other manner as may be permitted by law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.
Section 9. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, that provision will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend
this Agreement to replace the unenforceable language with enforceable language which as closely as
possible reflects such intent.
Section 10. Amendment. The terms of this Agreement can only be changed, modified,
released or discharged pursuant to a written agreement executed by each of the parties hereto. No
failure or delay by any party to take any action with respect to a breach by another party of this
Agreement or a default by another party hereunder shall constitute a waiver of the former party’s
right to enforce any provision of this Agreement or to take action with respect to such breach or
default or any subsequent breach or default. Waiver by any party of any breach or failure to
comply with any provision of this Agreement by another party shall not be construed as, or
constitute, a continuing wavier of such provisions, or a waiver of any other breach of or failure
to comply with any other provisions of this Agreement.
Section 11. Binding Effect; Assignment. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and permitted assigns,
but may not be assigned by one party without the prior written consent of the other parties. Any
attempted assignment that does not comply with this Section 9 shall be void ab initio.
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Section 12. No Third-Party Beneficiaries. This Agreement is intended to be for the
sole and exclusive benefit of the parties hereto and their respective successors and permitted
assigns. Nothing contained in this Agreement is intended or shall be construed to give any other
Person any legal or equitable right, remedy, or claim under or in respect to this Agreement or any
provision herein contained.
Section 13. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered personally or sent by
registered or certified mail or by overnight courier, postage prepaid, or by facsimile:
| if to Harris: Xxxxxx Corporation 0000 Xxxx XXXX Xxxx. Xxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxx fax: (000) 000-0000 with a copy to (which shall not constitute notice): Xxxxxxxx & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 fax: (000) 000-0000 Attention: Xxxxxx X. XxXxxxxxx if to the Company: Xxxxxx Stratex Networks, Inc. 000 Xxxx Xxxxxxx Xxx Xxx Xxxx, XX 00000 Attn: General Counsel fax: (000) 000-0000 with a copy to (which shall not constitute notice): Xxxxxx Stratex Networks, Inc. NetBoss Business Unit 0000 Xxxx XXXX Xxxx., Xxxxxxxx X-00X Xxxxxxxxx, XX 00000 Fax: (000) 000-0000 Attention: Xxxx Xxxxxxx, Contracts Manager |
Section 14. Entire Agreement; Controlling Provisions. This Agreement and any
Schedules attached hereto constitute the entire agreement between the parties relating to the
subject matter hereof and thereof and any and all prior arrangements, representations, promises,
understandings and conditions in connection with said matters and any representations, promises or
conditions not expressly incorporated herein or therein or expressly made a part hereof or thereof
shall not be binding upon any party.
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Section 15. Headings. The headings in this Agreement are included for convenience of
reference only and shall not in any way limit or otherwise affect the meaning or interpretation of
this Agreement.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same instrument.
Section 17. Construction. This Agreement has been negotiated by the parties and their
respective counsel in good faith and will be fairly interpreted in accordance with its terms and
without any strict construction in favor of or against any party. Time shall be of the essence of
this Agreement.
Section 18. Effectiveness. This Agreement shall become effective only when one or
more counterparts shall have been signed by each party and delivered to each other party.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties as of
the date first above written.
| XXXXXX CORPORATION |
||||
| By: | /s/ R. Xxxx Xxxxxxxx | |||
| Name: | R. Xxxx Xxxxxxxx | |||
| Title: | Vice President, Corporate Technology and Development | |||
| XXXXXX STRATEX CORPORATION |
||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
SCHEDULE
A
Assumed Contracts
Assumed Contracts
[omitted]
SCHEDULE
B
NetBoss Maintenance Agreement
NetBoss Maintenance Agreement
[omitted]
