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EXHIBIT 2.6
MASTER TRANSITIONAL SERVICES AGREEMENT
BETWEEN
MRV COMMUNICATIONS, INC.
AND
OPTICAL ACCESS, INC.
EFFECTIVE AS OF SEPTEMBER 29, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS....................................................................... 1
Section 1.1 ADDITIONAL SERVICES.................................................... 1
Section 1.2 ANCILLARY AGREEMENTS................................................... 1
Section 1.3 IMPRACTICABLE.......................................................... 1
Section 1.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT............................... 1
Section 1.5 MASTER SEPARATION AGREEMENT............................................ 1
Section 1.6 SEPARATION DATE........................................................ 1
Section 1.7 SERVICE(S)............................................................. 1
Section 1.8 SUBSIDIARY............................................................. 1
ARTICLE 2 TRANSITION SERVICE SCHEDULES...................................................... 2
ARTICLE 3 SERVICES.......................................................................... 2
Section 3.1 SERVICES GENERALLY..................................................... 2
Section 3.2 SERVICE BOUNDARIES..................................................... 2
Section 3.3 IMPRACTICABILITY....................................................... 2
Section 3.4 ADDITIONAL RESOURCES................................................... 2
Section 3.5 ADDITIONAL SERVICES.................................................... 3
Section 3.6 OBLIGATIONS AS TO ADDITIONAL SERVICES.................................. 3
ARTICLE 4 TERM.............................................................................. 3
ARTICLE 5 COMPENSATION...................................................................... 4
Section 5.1 CHARGES FOR SERVICES................................................... 4
Section 5.2 PAYMENT TERMS.......................................................... 4
Section 5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS................................. 4
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Section 5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING................................. 4
Section 5.5 PRICING ADJUSTMENTS.................................................... 4
ARTICLE 6 GENERAL OBLIGATIONS; STANDARD OF CARE............................................. 5
Section 6.1 PERFORMANCE METRICS: MRV.............................................. 5
Section 6.2 DISCLAIMER OF WARRANTIES............................................... 5
Section 6.3 PERFORMANCE METRICS: OPTICAL ACCESS................................... 5
Section 6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES............................... 5
Section 6.5 RESPONSIBILITY FOR ERRORS; DELAYS...................................... 5
Section 6.6 GOOD FAITH COOPERATION; CONSENTS....................................... 6
Section 6.7 ALTERNATIVES........................................................... 6
ARTICLE 7 TERMINATION....................................................................... 6
Section 7.1 TERMINATION............................................................ 6
Section 7.2 SURVIVAL............................................................... 6
Section 7.3 USER IDS, PASSWORDS.................................................... 7
ARTICLE 8 RELATIONSHIP BETWEEN THE PARTIES.................................................. 7
ARTICLE 9 SUBCONTRACTORS.................................................................... 7
ARTICLE 10 INTELLECTUAL PROPERTY............................................................ 7
Section 10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS........................... 7
Section 10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED................................... 7
Section 10.3 OWNERSHIP OF DEVELOPED WORKS........................................... 7
Section 10.4 LICENSE TO PREEXISTING WORKS........................................... 8
ARTICLE 11 SOFTWARE LICENSE................................................................. 8
Section 11.1 SOFTWARE DELIVERABLE/LICENSE........................................... 8
Section 11.2 DELIVERY AND ACCEPTANCE................................................ 8
Section 11.3 RIGHTS GRANTED AND RESTRICTIONS........................................ 9
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Section 11.4 AS-IS WARRANTY......................................................... 10
Section 11.5 MISCELLANEOUS.......................................................... 10
ARTICLE 12 INFRINGEMENT DEFENSE............................................................. 10
ARTICLE 13 CONFIDENTIALITY.................................................................. 11
ARTICLE 14 LIMITATION OF LIABILITY.......................................................... 11
ARTICLE 15 FORCE MAJEURE.................................................................... 11
ARTICLE 16 DISPUTE RESOLUTION............................................................... 11
Section 16.1 MEDIATION.............................................................. 11
Section 16.2 ARBITRATION............................................................ 12
Section 16.3 COURT ACTION........................................................... 12
Section 16.4 CONTINUITY OF SERVICE AND PERFORMANCE.................................. 12
ARTICLE 17 MISCELLANEOUS.................................................................... 13
Section 17.1 ENTIRE AGREEMENT....................................................... 13
Section 17.2 GOVERNING LAW.......................................................... 13
Section 17.3 DESCRIPTIVE HEADINGS................................................... 13
Section 17.4 NOTICES................................................................ 13
Section 17.5 NONASSIGNABILITY....................................................... 14
Section 17.6 SEVERABILITY........................................................... 14
Section 17.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.................. 14
Section 17.8 AMENDMENT.............................................................. 14
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MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (the "Agreement") is
effective as of September 29, 2000 (the "Effective Date"), between MRV
Communications, Inc., a Delaware corporation ("MRV"), having an office at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Optical Access, Inc., a
Delaware corporation ("Optical Access"), having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall
have the following meanings:
Section 1.1 ADDITIONAL SERVICES. Additional Services shall have the meaning set
forth in Section 3.5.
Section 1.2 ANCILLARY AGREEMENTS. Ancillary Agreements shall have the meaning
set forth in the Master Separation Agreement.
Section 1.3 IMPRACTICABLE. Impracticable shall have the meaning set forth in
Section 3.3.
Section 1.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT. Master Confidential
Disclosure Agreement shall mean that certain Master Confidential Disclosure
Agreement between MRV and Optical Access.
Section 1.5 MASTER SEPARATION AGREEMENT. Master Separation Agreement shall mean
that certain Master Separation Agreement made by and between MRV and Optical
Access.
Section 1.6 SEPARATION DATE. Unless otherwise provided in this Agreement, or in
any agreement to be executed in connection with this Agreement, the effective
time and date of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation shall be 12:01 a.m.,
Pacific Time, October 31, 2000 or such other date as may be fixed by the Board
of Directors of MRV (the "Separation Date").
Section 1.7 SERVICE(S). Service(s) shall have the meaning set forth in Section
3.1.
Section 1.8 SUBSIDIARY. Subsidiary of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such other Person
unless such other Person controls, or has the right, power or
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ability to control, that Person. For purposes of this Agreement, Optical Access
shall be deemed not to be a subsidiary of MRV.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as requested
by Optical Access and provided by MRV, the details of which are set forth in the
Transition Service Schedules attached to this Agreement. Each Service shall be
covered by this Agreement upon execution of a transition service schedule in the
form attached hereto (a "Transition Service Schedule").
For each Service, the parties shall set forth, among other things, the
time period during which the Service will be provided if different from the term
of this Agreement determined pursuant to Article 4 hereof, a summary of the
Service to be provided; a description of the Service; and the estimated charge,
if any, for the Service and any other terms applicable thereto on the Transition
Service Schedule. Obligations regarding each Transition Service Schedule shall
be effective upon execution of this Agreement. This Agreement and all the
Transition Service Schedules shall be defined as the "Agreement" and
incorporated herein wherever reference to it is made.
ARTICLE 3
SERVICES
Section 3.1 SERVICES GENERALLY. Except as otherwise provided herein, for the
term determined pursuant to Article 4 hereof, MRV shall provide or cause to be
provided to Optical Access the service(s) described in the Transition Service
Schedule(s) attached hereto. The service(s) described on a single Transition
Service Schedule shall be referred to herein as a "Service." Collectively, the
services described on all the Transition Service Schedules (including Additional
Services) shall be referred to herein as "Services."
Section 3.2 SERVICE BOUNDARIES. Except as provided in a Transition Service
Schedule for a specific Service: (i) MRV shall be required to provide the
Services only to the extent and only at the locations such Services are being
provided by MRV for Optical Access immediately prior to the Separation Date; and
(ii) the Services will be available only for purposes of conducting the business
of Optical Access substantially in the manner it was conducted prior to the
Separation Date.
Section 3.3 IMPRACTICABILITY. MRV shall not be required to provide any Service
to the extent the performance of such Service becomes "Impracticable" as a
result of a cause or causes outside the reasonable control of MRV including
unfeasible technological requirements, or to the extent the performance of such
Services would require MRV to violate any applicable laws, rules or regulations
or would result in the breach of any software license or other applicable
contract.
Section 3.4 ADDITIONAL RESOURCES. Except as provided in a Transition Service
Schedule for a specific Service, in providing the Services, MRV shall not be
obligated to: (i) hire
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any additional employees; (ii) maintain the employment of any specific employee;
(iii) purchase, lease or license any additional equipment or software; or (iv)
pay any costs related to the transfer or conversion of Optical Access's data to
Optical Access or any alternate supplier of Services.
Section 3.5 ADDITIONAL SERVICES. From time to time after the Effective Date, the
parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Transition Service
Schedules for such Additional Services pursuant to Article 2. Except as set
forth in Section 3.6, the parties may agree in writing on Additional Services
during the term of this Agreement.
Section 3.6 OBLIGATIONS AS TO ADDITIONAL SERVICES. Except as set forth in the
next sentence, MRV shall be obligated to perform, at a charge determined using
the principles for determining fees under Section 5.1, any Additional Service
that: (i) was provided by MRV immediately prior to the Separation Date and that
Optical Access reasonably believes was inadvertently or unintentionally omitted
from the list of Services, or (ii) is essential to effectuate an orderly
transition under the Master Separation Agreement unless such performance would
significantly disrupt MRV's operations or materially increase the scope of its
responsibility under this Agreement. If MRV reasonably believes the performance
of Additional Services required under subparagraphs (i) or (ii) would
significantly disrupt its operations or materially increase the scope of its
responsibility under this Agreement, MRV and Optical Access shall negotiate in
good faith to establish terms under which MRV can provide such Additional
Services, but MRV shall not be obligated to provide such Additional Services if,
following good faith negotiation, it is unable to reach agreement on such terms.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Separation Date and
shall remain in effect until one (1) year after the Separation Date (the
"Expiration Date"), unless earlier terminated under Article 7. This Agreement
may be extended by the parties in writing, either in whole or with respect to
one or more of the Services; provided, however, that such extension shall only
apply to the Services for which the Agreement was extended. The parties shall be
deemed to have extended this Agreement with respect to a specific Service if the
Transition Service Schedule for such Service specifies a completion date beyond
the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the date set forth in the applicable Transition Service Schedule,
subject to earlier termination as provided herein.
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ARTICLE 5
COMPENSATION
Section 5.1 CHARGES FOR SERVICES. Optical Access shall pay MRV the charges, if
any, set forth on the Transition Service Schedules for each of the Services
listed therein as adjusted, from time to time, in accordance with the processes
and procedures established under Section 5.4 and Section 5.5 hereof. Such fees
shall include the direct costs, as determined using the process described in
such Transition Service Schedule, and indirect costs of providing the Services
plus 5 %, unless specifically indicated otherwise on a Transition Service
Schedule. However, if the term of this Agreement is extended beyond the
Expiration Date as provided in Article 4, Optical Access will reimburse MRV such
costs plus 10 % for the Services unless the Transition Service Schedule for such
Service indicates it is to extend beyond the Expiration Date. The parties also
intend for charges to be easy to administer and justify and, therefore, they
hereby acknowledge it may be counterproductive to try to recover every cost,
charge or expense, particularly those that are insignificant or de minimus. The
parties shall use good faith efforts to discuss any situation in which the
actual charge for a Service is reasonably expected to exceed the estimated
charge, if any, set forth on a Transition Service Schedule for a particular
Service; provided, however, that the incurrence of charges in excess of any such
estimate on such Transition Service Schedule shall not justify stopping the
provision of, or payment for, Services under this Agreement.
Section 5.2 PAYMENT TERMS. MRV shall ▇▇▇▇ Optical Access monthly for all charges
pursuant to this Agreement. Such bills shall be accompanied by reasonable
documentation or other reasonable explanation supporting such charges. Optical
Access shall pay MRV for all Services provided hereunder within forty-five (45)
days after receipt of an invoice therefor. Late payments shall bear interest at
the lesser of 12% or the maximum rate allowed by law.
Section 5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding anything to
the contrary contained herein, Optical Access shall not be charged under this
Agreement for any obligations that are specifically required to be performed
under the Master Separation Agreement or any other Ancillary Agreement and any
such other obligations shall be performed and charged for (if applicable) in
accordance with the terms of the Master Separation Agreement or such other
Ancillary Agreement.
Section 5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall reasonably
agree on a process and procedure for conducting internal audits and making
adjustments to charges as a result of the movement of employees and functions
between parties, the discovery of errors or omissions in charges, as well as a
true-up of amounts owed. In no event shall such processes and procedures extend
beyond two (2) years after completion of a Service.
Section 5.5 PRICING ADJUSTMENTS. In the event of a tax audit adjustment relating
to the pricing of any or all Services provided pursuant to this Agreement in
which it is determined by a taxing authority that any of the charges,
individually or in combination, did not result in an arm's-length payment, as
determined under internationally accepted arm's-length standards, then the
parties, including any MRV subcontractor providing Services hereunder, may agree
to make corresponding adjustments to the charges in question for such period to
the extent necessary to achieve arm's-length pricing. Any adjustment made
pursuant to this Section 5.5 at any time
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during the term of this Agreement or after termination of this Agreement and
shall be reflected in the parties' legal books and records, and the resulting
underpayment or overpayment shall create, respectively, an obligation to be paid
in the manner specified in Section 5.2, or shall create a credit against amounts
owed under this Agreement.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
Section 6.1 PERFORMANCE METRICS: MRV. Subject to Sections 3.4 and any other
terms and conditions of this Agreement, MRV shall maintain sufficient resources
to perform its obligations hereunder. Specific performance metrics for MRV for a
specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, MRV shall use reasonable efforts to provide
Services in accordance with the policies, procedures and practices in effect
before the Effective Date and shall exercise the same care and skill as it
exercises in performing similar services for itself.
Section 6.2 DISCLAIMER OF WARRANTIES. MRV MAKES NO WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
Section 6.3 PERFORMANCE METRICS: OPTICAL ACCESS. Specific performance metrics
for Optical Access for a specific Service may be set forth in the corresponding
Transition Service Schedule. Where none is set forth, Optical Access shall use
reasonable efforts, in connection with receiving Services, to follow the
policies, procedures and practices in effect before the Separation Date
including providing information and documentation sufficient for MRV to perform
the Services as they were performed before the Effective Date and making
available, as reasonably requested by MRV, sufficient resources and timely
decisions, approvals and acceptances in order that MRV may accomplish its
obligations hereunder in a timely manner.
Section 6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties acknowledge
the transitional nature of the Services and that MRV may make changes from time
to time in the manner of performing the Services if MRV is making similar
changes in performing similar services for itself and if MRV furnishes to
Optical Access sixty (60) days written notice regarding such changes.
Section 6.5 RESPONSIBILITY FOR ERRORS; DELAYS. MRV's sole responsibility to
Optical Access:
(i) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the Services, at no additional
cost or expense to Optical Access; provided, however, that Optical Access must
promptly advise MRV of any such error or omission of which it becomes aware
after having used reasonable efforts to detect any such errors or omissions in
accordance with the standard of care set forth in Section 6.1; and
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(ii) for failure to deliver any Service because of
Impracticability, shall be to use reasonable efforts, subject to Section 3.3, to
make the Services available and/or to resume performing the Services as promptly
as reasonably practicable.
Section 6.6 GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder (including by way of example, not by way of limitation,
rights to use third party software needed for the performance of Services). The
costs of obtaining such third party consents, licenses, sublicenses or approvals
shall be borne by Optical Access. The parties will maintain in accordance with
its standard document retention procedures, documentation supporting the
information relevant to cost calculations contained in the Transition Service
Schedules and cooperate with each other in making such information available as
needed in the event of a tax audit, whether in the United States or any other
country.
Section 6.7 ALTERNATIVES. If MRV reasonably believes it is unable to provide any
Service because of a failure to obtain necessary consents, licenses, sublicenses
or approvals pursuant to Section 6.6 or because of Impracticability, the parties
shall cooperate to determine the best alternative approach. Until such
alternative approach is found or the problem otherwise resolved to the
satisfaction of the parties, MRV shall use reasonable efforts, subject to
Sections 3.3 and Section 3.4, to continue providing the Service. To the extent
an agreed upon alternative approach requires payment above and beyond that which
is included in MRV's charge for the Service in question, the parties shall share
equally in making any such payment unless they otherwise agree in writing.
ARTICLE 7
TERMINATION
Section 7.1 TERMINATION. Optical Access may terminate this Agreement, either
with respect to all or with respect to any one or more of the Services provided
to Optical Access hereunder, for any reason or for no reason, at any time upon
sixty (60) days prior written notice to MRV. In addition, subject to the
provisions of Article 16 below, either party may terminate this Agreement with
respect to a specific Service if the other party materially breaches a material
provision with regard to that particular Service and does not cure such breach
(or does not take reasonable steps required under the circumstances to cure such
breach going forward) within sixty (60) days after being given notice of the
breach; provided, however, that the non-terminating party may request that the
parties engage in a dispute resolution negotiation as specified in Article 16
below prior to termination for breach.
Section 7.2 SURVIVAL. Those Sections of this Agreement that, by their nature,
are intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
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Section 7.3 USER IDS, PASSWORDS. The parties shall use good faith efforts at the
termination or expiration of this Agreement or any specific Service hereto to
ensure that all applicable user IDs and passwords, if any, are canceled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement is
that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. MRV will be solely responsible
for any employment-related taxes, insurance premiums or other employment
benefits respecting its personnels' performance of Services under this
Agreement. Optical Access agrees to grant MRV personnel access to sites, systems
and information (subject to the provisions of confidentiality in Article 13
below) as necessary for MRV to perform its obligations hereunder. MRV personnel
agree to obey any and all security regulations and other published policies of
Optical Access.
ARTICLE 9
SUBCONTRACTORS
MRV may engage a "Subcontractor" to perform all or any portion of MRV's
duties under this Agreement, provided that any such Subcontractor agrees in
writing to be bound by confidentiality obligations at least as protective as the
terms of Article 13 regarding confidentiality below, and provided further that
MRV remains responsible for the performance of such Subcontractor. As used in
this Agreement, "Subcontractor" will mean any individual, partnership,
corporation, firm, association, unincorporated organization, joint venture,
trust or other entity engaged to perform hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
Section 10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS. This Agreement and
the performance of this Agreement will not affect the ownership of any
copyrights or other intellectual property rights allocated in the Ancillary
Agreements.
Section 10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED. Neither party will gain, by
virtue of this Agreement, any rights of ownership of copyrights, patents, trade
secrets, trademarks or any other intellectual property rights owned by the
other.
Section 10.3 OWNERSHIP OF DEVELOPED WORKS. Except as set forth in Section 10.2,
MRV will own all copyrights, patents, trade secrets, trademarks and other
intellectual property rights subsisting in the Software Deliverables (as defined
in Section 11.1 below) and other works developed by MRV for purposes of this
Agreement.
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Section 10.4 LICENSE TO PREEXISTING WORKS. Optical Access grants MRV a
non-exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit Optical Access's
pre-existing copyrighted works or other intellectual property rights solely to
the extent necessary to perform its obligations under this Agreement.
ARTICLE 11
SOFTWARE LICENSE
Section 11.1 SOFTWARE DELIVERABLE/LICENSE. Unless otherwise agreed by the
parties under the Ancillary Agreements or any separate license or technology
agreement, if MRV supplies Optical Access with a deliverable that in whole or in
part consists of software, firmware, or other computer code (referred to as a
"Software Deliverable") as indicated in a Transition Service Schedule, such
Software Deliverables will be supplied in object code form only and will be
subject to the terms of this Article 11. In the event that such Software
Deliverables are licensed to MRV by third parties, Optical Access agrees to be
bound by any different or additional conditions that are required by such third
parties and are communicated in writing by MRV to Optical Access.
Section 11.2 DELIVERY AND ACCEPTANCE.
(a) DELIVERY. MRV agrees to deliver to Optical Access one (1): (i)
master copy of the Software in object code form only (as specified on the
relevant Transition Service Schedule of the Agreement) on the media described on
the relevant Transition Service Schedule and (ii) Documentation for the Software
on the media described in the relevant Transition Service Schedule ((i) and (ii)
are collectively referred to as a "Complete Copy") as listed in the relevant
Transition Service Schedule no later than ten (10) days after the Effective Date
(or any other start date as specifically indicated in the relevant Transition
Service Schedule). If Source Code is licensed under this Agreement, MRV agrees
to deliver one (1) copy of such Source Code no later than ten (10) days after
the Effective Date (or any other start date as specifically indicated in the
relevant Transition Service Schedule). Additional Software or Source Code may be
added to this Agreement from time to time by execution by the parties of a
Transition Service Schedule.
(b) ACCEPTANCE OF SOFTWARE (NON-SOURCE CODE). Optical Access will have
thirty (30) days from the date of receipt of a Complete Copy of the Software to
evaluate the Software for conformity with the manuals and other documentation
that MRV makes available with the Software to end users or which are reasonably
necessary to use the Software licensed herein, including those items listed and
described in the relevant Transition Service Schedule hereto (the
"Documentation") and specifications, and either accept, return for rework
(provided the Software has not previously been reworked), or reject the
Software. Optical Access shall accept the Software if it substantially conforms
with Documentation and specifications. Optical Access will be entitled to test
and evaluate the Software and MRV hereby grants to Optical Access the right to
use and reproduce the Software only to the extent necessary for Optical Access
to perform its evaluation. Such license will include the right of Optical Access
to use third party subcontractors bound by the relevant restrictions herein
solely as necessary to achieve the foregoing. If Optical Access returns the
Software for rework, MRV will use reasonable commercial efforts to correct the
identified defects and resubmit the Software for re-evaluation
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under the same acceptance procedure. In the event Optical Access rejects the
Software a second time, this Agreement will terminate with respect to that
Software. Payment due from Optical Access to MRV under a Transition Service
Schedule that includes Software to be licensed shall be reduced by the pro rata
portion of compensation attributable to the Software unless the Software has
been accepted by Optical Access in writing or Optical Access fails to reject the
Software within such 30 day period.
(c) ACCEPTANCE OF SOURCE CODE. The Source Code is provided for Optical
Access's reference only and subject to the limitations below in Section 11.3.
The Source Code may not be accepted or rejected according to the provisions
above in Section 11.2(b). If Optical Access rejects the Source Code, Optical
Access must destroy all copies of such rejected Source Code and promptly furnish
evidence of such rejection and destruction to MRV.
Section 11.3 RIGHTS GRANTED AND RESTRICTIONS.
(a) LICENSE TO SOFTWARE. Subject to the terms and conditions of this
Agreement, MRV hereby grants to Optical Access, under MRV's intellectual
property rights in and to the Software, a non-exclusive, nontransferable
worldwide license to (i) use and display the Software for its own internal
information processing services and computing needs, and to make sufficient
copies as necessary for such use, and (ii) use the Documentation in connection
with the permitted use of the Software and make sufficient copies as necessary
for such use.
(b) LICENSE TO SOURCE CODE. Subject to the terms and conditions of this
Agreement, MRV hereby grants to Optical Access, under MRV's intellectual
property rights in and to the Software, a non-exclusive, nontransferable
worldwide license to (i) use and reproduce (for archival and back-up purposes
only), and prepare derivative works of the Source Code, for the sole purpose of
supporting the object code version of the Software (if such object code exists),
or, if no object code exists, for the sole purpose of its own internal
information processing services and computing needs and (ii) to use Source Code
Documentation in connection with the permitted use of the Source Code and make
copies for archival and back-up purposes only.
(c) RESTRICTIONS. Optical Access shall not itself, or through any
Subsidiary, affiliate, agent or third party: (i) sell, lease, license or
sublicense the Software, the Source Code, the Documentation or the Source Code
Documentation; (ii) decompile, disassemble, or reverse engineer the Software or
Source Code, in whole or in part, except to the extent such restriction is
prohibited by applicable law; (iii) allow access to the Software or Source Code
by any user other than Optical Access; (iv) write or develop any derivative
software or any other software program based upon the Software or Source Code;
(v) use the Software or Source Code to provide processing services to third
parties, or (vi) otherwise use the Software or Source Code on a "service bureau"
basis; or provide, disclose, divulge or make available to, or permit use of the
Software or Source Code by any third party without MRV's prior written consent.
(d) CONFIDENTIALITY. The Source Code and Source Code Documentation are
hereby deemed "Confidential Information" and subject to the terms and procedures
of the Master Confidential Disclosure Agreement. The period of disclosure shall
be one (1) year from the Effective Date of this Agreement, and the period of
confidentiality shall be perpetual.
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(e) TRADEMARKS. Neither party is granted any ownership in or license to
the trademarks, marks or trade names (collectively, "Marks") of the other party
with respect to this Software.
(f) OWNERSHIP. MRV hereby reserves all rights to the Software, Source
Code and Documentation, and any copyrights, patents, or trademarks, embodied
therein or used in connection therewith, except for the rights expressly granted
herein.
(g) COPYRIGHT NOTICES. Optical Access agrees that it will not remove any
copyright notices, proprietary markings, trademarks or trade names from the
Software, Source Code, Documentation, or Source Code Documentation.
(h) TECHNICAL ASSISTANCE AND TRAINING. MRV agrees to provide technical
assistance and training to Optical Access personnel only if such assistance is
set forth in the relevant Transition Service Schedule.
Section 11.4 AS-IS WARRANTY.
(a) AS-IS WARRANTY. THE SOFTWARE AND SOURCE CODE PROVIDED HEREUNDER IS
LICENSED ON AN "AS-IS" BASIS ONLY, WITHOUT ANY EXPRESS WARRANTIES OF ANY KIND.
(b) IMPLIED WARRANTY DISCLAIMER. MRV MAKES NO WARRANTIES WHATSOEVER,
EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR SOURCE CODE (INCLUDING
DOCUMENTATION AND SOURCE CODE DOCUMENTATION), ITS MERCHANTABILITY OR ITS FITNESS
FOR ANY PARTICULAR PURPOSE.
Section 11.5 MISCELLANEOUS.
NO OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR OBLIGATIONS
WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH
IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES.
ARTICLE 12
INFRINGEMENT DEFENSE
Notwithstanding anything to the contrary in Article 13 below or the
Master Confidential Disclosure Agreement, to the extent MRV delivers or licenses
any intellectual property to Optical Access after the Separation Date in
performance of this Agreement, MRV agrees to defend Optical Access and its
directors, officers, employees and agents against any and all claims, actions or
suits (any of the foregoing, a "Claim") incurred by or asserted against Optical
Access based upon infringement of a third party patent or other intellectual
property right. Optical Access agrees to notify MRV promptly of any Claim and
permit MRV at MRV's expense to defend such Claim and will cooperate in the
defense thereof. MRV agrees to pay any awards or settlement amounts arising from
a Claim. Neither MRV nor Optical Access will enter into or permit any settlement
of any such Claim without the express written consent of the other
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party. Optical Access may, at its option and expense, have its own counsel
participate in any proceeding that is under the direction of MRV and will
cooperate with MRV and its insurer in the disposition of any such matter.
ARTICLE 13
CONFIDENTIALITY
The terms of the Master Confidential Disclosure Agreement between the
parties shall apply to any Confidential Information (as defined therein) which
is the subject matter of this Agreement.
ARTICLE 14
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT. THE FOREGOING LIMITATION WILL NOT LIMIT MRV'S OBLIGATIONS WITH
RESPECT TO PAYMENT OF DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF
A THIRD PARTY CLAIM UNDER ANY INDEMNITY OR INFRINGEMENT DEFENSE PROVISIONS
SPECIFIED HEREIN.
ARTICLE 15
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of
its obligations under this Agreement, other than the obligations of Optical
Access to make certain payments to MRV pursuant to Article 5 hereof for services
rendered, if such failure or delay is caused by Force Majeure. "Force Majeure"
means any act of God or the public enemy, any accident, explosion, fire, storm,
earthquake, flood, or any other circumstance or event beyond the reasonable
control of the party relying upon such circumstance or event.
ARTICLE 16
DISPUTE RESOLUTION
Section 16.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement or the Ancillary
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Agreements, or the grounds for the termination hereof, appropriate senior
executives of each party who shall have the authority to resolve the matter
shall meet to attempt in good faith to negotiate a resolution of the Dispute
prior to pursuing other available remedies. The initial meeting between the
appropriate senior executives shall be referred to herein as the "Dispute
Resolution Commencement Date." Discussions and correspondence relating to trying
to resolve such Dispute shall be treated as confidential information developed
for the purpose of settlement and shall be exempt from discovery or production
and shall not be admissible. If the senior executives are unable to resolve the
Dispute within thirty (30) days from the Dispute Resolution Commencement Date,
and either party wishes to pursue its rights relating to such Dispute, then the
Dispute will be mediated by a mutually acceptable mediator appointed pursuant to
the mediation rules of JAMS/Endispute within thirty (30) days after written
notice by one party to the other demanding non-binding mediation. Neither party
may unreasonably withhold consent to the selection of a mediator or the location
of the mediation. Both parties will share the costs of the mediation equally,
except that each party shall bear its own costs and expenses, including
attorney's fees, witness fees, travel expenses, and preparation costs. The
parties may also agree to replace mediation with some other form of non-binding
or binding ADR.
Section 16.2 ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days of the Dispute Resolution Commencement Date,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Los Angeles County,
California. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall be
entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior negotiation or mediation). The decision
of the arbitrator shall be final and non-appealable and may be enforced in any
court of competent jurisdiction. The use of any ADR procedures will not be
construed under the doctrine of laches, waiver or estoppel to adversely affect
the rights of either party.
Section 16.3 COURT ACTION. Any Dispute regarding the following is not required
to be negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others.
Section 16.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article 16 with respect
to all matters not subject to such dispute, controversy or claim.
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ARTICLE 17
MISCELLANEOUS
Section 17.1 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement
and the other Ancillary Agreements and the Exhibits and Schedules referenced or
attached hereto and thereto constitute the entire agreement between the parties
with respect to the subject matter hereof and thereof and shall supersede all
prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof and thereof.
Section 17.2 GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Los Angeles County and/or the United States District Court for the Central
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Article 16 above.
Section 17.3 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 17.4 NOTICES. Notices, offers, requests, or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to MRV:
MRV Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
if to Optical Access:
Optical Access, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
Fax: 818-___-____
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent
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by fax, confirmed by first class mail. All notices shall be deemed to have been
given and received on the earlier of actual delivery or three (3) days from the
date of postmark.
Section 17.5 NONASSIGNABILITY. Except as specifically permitted under Article 10
above, neither party may, directly or indirectly, in whole or in part, whether
by operation of law or otherwise, assign or transfer this Agreement, without the
other party's prior written consent, and any attempted assignment, transfer or
delegation without such prior written consent shall be voidable at the sole
option of such other party. Notwithstanding the foregoing, each party (or its
permitted successive assignees or transferees hereunder) may assign or transfer
this Agreement as a whole without consent to an entity that succeeds to all or
substantially all of the business or assets of such party. Without limiting the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
Section 17.6 SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement will nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 17.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. If any term
or other provision of this Agreement or the Exhibits or Schedules attached
hereto is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
Section 17.8 AMENDMENT. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duly authorized representatives.
MRV COMMUNICATIONS, INC.,
a Delaware Corporation
By:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
OPTICAL ACCESS, INC.,
a Delaware Corporation
By:
--------------------------------------
▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
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FORM OF TRANSITION SERVICE SCHEDULE TO MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #:____________ (To be inserted by
responsible individual or department.)
2. Functional Area:_______________
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between MRV Communications, Inc. ("MRV")
and Optical Access, Inc. ("Optical Access") to which this Transition
Service Schedule is attached and end on _________, ____ unless otherwise
indicated below.
Indicate below if other start/end date:
Start Date:_______________________
End Date:_________________________
If Start and End dates vary by service and/or country, please indicate
in Section 5 below.
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
------------ -----------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
Country Site Service(s) Start Date End Date
------- ---- ---------- ---------- --------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
7. Estimated Total Compensation: __________________________
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8. Describe cost methodology and cost drivers affecting Estimated Total
Compensation (Describe on an individual service basis if necessary):
9. Describe the process by which the cost of services will be adjusted in
the instance of an increase/reduction in the services provided:
(Describe on an individual service basis if necessary.)
10. Software: Will software be used or included with the Services to be
provided under this Transition Service Schedule: ____ Yes ____ No
If yes, will source code be provided: ____ Yes ____ No
List software to be provided:
Software Application Number of Licenses to be Provided
-------------------- ---------------------------------
------------------------------------- ----------------------------------------
------------------------------------- ----------------------------------------
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Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between MRV Communications,
Inc. and Optical Access, Inc.
MRV COMMUNICATIONS, INC.,
a Delaware Corporation
By:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
OPTICAL ACCESS, INC.,
a Delaware Corporation
By:
--------------------------------------
▇▇▇ ▇▇▇▇▇▇,
Chief Executive Officer
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