Seller Restrictions. 8.1 Except as provided in clause 8.2, the license to the Seller Licensees in sub-clause7.1 shall be subject to and Seller, as a constituent part of the agreement for the transfer of the Transferred Assets and license of the Transferred Technology, hereby covenants with the Purchaser and each other member of the Purchaser’s Group that: (A) During the period commencing on the date of this Agreement and ending on (i) the second (2nd) anniversary of the earlier to occur of (1) the First Amber Trigger Event and (2) the Amber Termination Event, in respect of any Seller Clone IC incorporating or including Amber Technology, and (ii) the second (2nd) anniversary of the Completion Date otherwise, the Seller shall not (and shall procure that no member of the Selling Group shall) grant to an AP Company a license or sublicense of, or transfer, any right with respect to, any Seller Clone IC for use or otherwise in the Mobile Field. (B) During the period commencing on the Completion Date and ending on the fourth (4th) anniversary of the Completion Date, the Seller shall not (and shall procure that no member of the Selling Group shall) Sell Bluetooth, Wi-Fi or FM Non-AP Products (other than GPS Non-AP Products which also contain Bluetooth, Wi-Fi and/or FM where the use of such Bluetooth, Wi-Fi and/or FM functions is substantially to support location services) to any Person for use in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device) where the Seller has any knowledge that such Non-AP Products will be used in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device). Without limiting the generality of the foregoing, the Seller shall (and shall procure that each member of the Selling Group shall) only sell or distribute such Non-AP Products pursuant to a written contract of sale which includes terms prohibiting the use of such Non-AP Products in Mobile Devices (other than Common Tablets, Laptops or New Mobile Devices). (C) During the period commencing on the Completion Date and ending on the tenth (10th) anniversary of the Completion Date, the Seller shall not (and shall procure that no member of the Selling Group shall) Sell AP Products to any Person where the Seller has any knowledge that such AP Products will be used in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device). Without limiting the generality of the foregoing, the Seller shall (and shall procure that each member of the Selling Group shall) only sell or distribute such AP Products pursuant to a written contract of sale which includes terms prohibiting the use of such AP Products in Mobile Devices (other than Common Tablets, Laptops or New Mobile Devices). (D) Unless terminated earlier in accordance with sub-clause 9.3, the restrictions on the Seller set out in sub-clauses 8.1 (A) to 8.1(C) above shall terminate on the tenth (10th) anniversary of the Completion Date. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. 8.2 Notwithstanding anything to the contrary set forth herein including in clause 8.1: (A) the restriction in sub-clause 8.1(B) will not apply solely in respect of the business of any company, or any business, acquired after the Completion Date by any member of the Selling Group until the expiry of a period of six (6) months from the date of the completion of such acquisition; (B) the Seller and any other member of the Selling Group may: (i) Sell any product or device for use in any product that is not in the Mobile Field, including any product that includes both Wi-Fi and Bluetooth based upon the Amber Technology; (ii) continue to Sell the Products (including for the avoidance of doubt, patches, bug fixes, error corrections, updates and similar types of modifications to such Products) into any market and for any application; (iii) Sell any product or device for use in any Permitted Device or any Excluded Device; (iv) Sell any product or device for use in any Personal Navigation Device, even if such device is similar in form factor to a Mobile Device; (v) Sell any GPS discrete IC into any market and for any application or product provided that any such application or product does not include Bluetooth, Wi-Fi or FM functions (other than where the use of such Bluetooth, Wi-Fi or FM functions is substantially to support [***]); (vi) license the Semiconductor IP and software for GPS to any third party, including any AP Company, provided the license is to, and distribution is in, object code only (not specifically customized for the licensee in any material respect) although it is recognized that certain portions of the source code may be required solely for integration and interfacing with the licensee’s product; (vii) license the Semiconductor IP and software for GPS to any third party, including any AP Company in source code form provided that such licensed GPS design is not the Latest Generation; (viii) notwithstanding any limitation on Seller selling AP Products, Seller may Sell [***] ICs that include a processor that may be an AP class processor into any market and for any application provided that the use of such AP class processor is substantially for the performance of [***]; and (ix) Sell or license any location-based service, software or data into any market and for any application or product. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.
Appears in 1 contract
Sources: Asset and Share Transfer and Technology License Agreement (CSR PLC)
Seller Restrictions. 8.1 Except as provided in clause 8.2, the license to the Seller Licensees in sub-clause7.1 shall be subject to and Seller, as a constituent part of the agreement for the transfer of the Transferred Assets and license of the Transferred Technology, hereby covenants with the Purchaser and each other member of the Purchaser’s Group that:
(A) During the period commencing on the date of this Agreement and ending on (i) the second (2nd) anniversary of the earlier to occur of (1) the First Amber Trigger Event and (2) the Amber Termination Event, in respect of any Seller Clone IC incorporating or including Amber Technology, and (ii) the second (2nd) anniversary of the Completion Date otherwise, the Seller shall not (and shall procure that no member of the Selling Group shall) grant to an AP Company a license or sublicense of, or transfer, any right with respect to, any Seller Clone IC for use or otherwise in the Mobile Field.
(B) During the period commencing on the Completion Date and ending on the fourth (4th) anniversary of the Completion Date, the Seller shall not (and shall procure that no member of the Selling Group shall) Sell Bluetooth, Wi-Fi or FM Non-AP Products (other than GPS Non-AP Products which also contain Bluetooth, Wi-Fi and/or FM where the use of such Bluetooth, Wi-Fi and/or FM functions is substantially to support location services[***]) to any Person for use in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device) [***] where the Seller has any knowledge that such Non-AP Products will be used in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device)[***]. Without limiting the generality of the foregoing, the Seller shall (and shall procure that each member of the Selling Group shall) only sell or distribute such Non-AP Products pursuant to a written contract of sale which includes terms prohibiting the use of such Non-AP Products in Mobile Devices (other than Common Tablets, Laptops or New Mobile Devices)[***].
(C) During the period commencing on the Completion Date and ending on the tenth (10th) anniversary of the Completion Date, the Seller shall not (and shall procure that no member of the Selling Group shall) Sell AP Products to any Person where the Seller has any knowledge that such AP Products will be used in a Mobile Device (other than a Common Tablet, Laptop or New Mobile Device). Without limiting the generality of the foregoing, the Seller shall (and shall procure that each member of the Selling Group shall) only sell or distribute such AP Products pursuant to a written contract of sale which includes terms prohibiting the use of such AP Products in Mobile Devices (other than Common Tablets, Laptops or New Mobile Devices)[***].
(D) Unless terminated earlier in accordance with sub-clause 9.3, the restrictions on the Seller set out in sub-clauses 8.1
(A) to 8.1(C) above shall terminate on the tenth (10th) anniversary of the Completion Date. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.
8.2 Notwithstanding anything to the contrary set forth herein including in clause 8.1:
(A) the restriction in sub-clause 8.1(B) will not apply solely in respect of the business of any company, or any business, acquired after the Completion Date by any member of the Selling Group until the expiry of a period of six (6) months from the date of the completion of such acquisition;
(B) the Seller and any other member of the Selling Group may:
(i) Sell any product or device for use in any product that is not in the Mobile Field, including any product that includes both Wi-Fi and Bluetooth based upon the Amber Technology;
(ii) continue to Sell the Products (including for the avoidance of doubt, patches, bug fixes, error corrections, updates and similar types of modifications to such Products) into any market and for any application;; [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.
(iii) Sell any product or device for use in any Permitted Device or any Excluded Device;
(iv) Sell any product or device for use in any Personal Navigation Device, even if such device is similar in form factor to a Mobile Device;
(v) Sell any GPS discrete IC into any market and for any application or product provided that any such application or product does not include Bluetooth, Wi-Fi or FM functions (other than where the use of such Bluetooth, Wi-Fi or FM functions is substantially to support [***]);
(vi) license the Semiconductor IP and software for GPS to any third party, including any AP Company, provided the license is to, and distribution is in, object code only (not specifically customized for the licensee in any material respect) although it is recognized that certain portions of the source code may be required solely for integration and interfacing with the licensee’s product;
(vii) license the Semiconductor IP and software for GPS to any third party, including any AP Company in source code form provided that such licensed GPS design is not the Latest Generation;
(viii) notwithstanding any limitation on Seller selling AP Products, Seller may Sell [***] ICs that include a processor that may be an AP class processor into any market and for any application provided that the use of such AP class processor is substantially for the performance of [***]; and
(ix) Sell or license any location-based service, software or data into any market and for any application or product.
8.3 Subject to sub-clause 8.1 and except for the restrictions set out in sub-clause 8.1(A), the Seller and any other member of the Selling Group may license or transfer any Technology or Intellectual Property Rights to any third party.
8.4 Each party hereby acknowledges and agrees that:
(A) given the wider commercial benefit to the Selling Group, the Purchaser’s Group and their respective customers and suppliers as well as other unconnected third parties which can be achieved as a result of the Purchaser taking primary responsibility for the development of the Amber Technology with effect from Completion and the subsequent commercialisation of that technology by both parties on the terms of this Agreement and considering the cross-licenses contained herein, the restrictions contained in this clause 8 are fair, reasonable and necessary in the circumstances in light of the amount of the Cash Consideration being paid by the Purchaser under this Agreement, the significant additional amounts which the Purchaser’s Group will be required to invest to successfully complete the development of the Amber Technology over a number of years and each party’s desire to enable the Purchaser to sufficiently develop and commercialize the Transferred Technology and to integrate the Transferred Technology into its business;
(B) the provisions of this clause 8 are no greater than is reasonable and are necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement, but, if any such restriction shall be held to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable; and
(C) the breach of any of the provisions of this clause 8 by a Seller Licensee may result in irreparable harm to the Purchaser’s Group for which monetary damages would be inadequate. In the event that any Seller Licensee breaches any of the provisions in this clause 8, the Purchaser shall have the right to seek from any court of competent jurisdiction injunctive relief to restrain any breach of or otherwise to specifically enforce this clause 8 against such Seller Licensee (including enforcing against the Seller for such Seller Licensee breach in accordance with sub-clause 43.5) according to applicable law (without prejudice to the right for the Purchaser to seek such relief in respect of any other provision of this Agreement).
8.5 Each undertaking contained in this clause 8 shall be construed as a separate undertaking and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade, the remaining undertakings shall continue to bind the Seller Licensees. If the Seller or any member of the Selling Group makes any allegation before any court or tribunal that any of the undertakings contained in this clause 8 are unenforceable, invalid or illegal and any of the undertakings are subsequently found by a court or tribunal to be void or unenforceable, then the corresponding restrictions on the Purchaser contained in sub-clause 6.1 shall forthwith terminate be deleted or modified in the same way. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.
8.6 Prior to Completion, the Seller will (and will procure that each other member of the Selling Group will), at the request of the Purchaser, enter into one or more separate deeds of covenant (governed by New York law, English law or the laws of such other jurisdictions as the Purchaser may reasonably require) with the Purchaser (and any other appropriate member of the Purchaser’s Group) in which it agrees to be bound by restrictions corresponding to those restrictions in this clause 8 (or such of those restrictions as may be appropriate).
8.7 The Seller will, at the reasonable request of Purchaser, procure that any Person who becomes a member of the Selling Group after the date of this Agreement executes a deed of covenant in accordance with clause 8.6 and delivers it to the Purchaser.
Appears in 1 contract
Sources: Asset and Share Transfer and Technology License Agreement (CSR PLC)