1
EXHIBIT 10.6
ASSIGNMENT OF RIGHT TO SUBLICENSE
USE OF SOFTWARE
ENTERED INTO AT MONTREAL, PROVINCE OF QUEBEC, ON NOVEMBER 8, 2000;
BETWEEN: MCE HOLDING CORPORATION, a corporation incorporated under the laws of
the State of Delaware, United States of America, having its registered
office in Dover, County of Kent, State of Delaware (U.S.A.), ("UsCo");
PARTY OF THE FIRST PART
AND: 3044016 NOVA SCOTIA COMPANY, a corporation incorporated under the laws
of Nova Scotia, having its registered office in Halifax, Nova Scotia,
("NSCo");
PARTY OF THE SECOND PART
AND: ERICSSON CANADA INC, a corporation incorporated under the laws of
Canada, having its registered office in Montreal, Quebec, ("ERICSSON");
WITNESSETH:
WHEREAS ERICSSON TELECOM A.B. has granted to Ericsson a non-exclusive license to
use the software known as "iPulse 1.5" (the "Software") and Ericsson has granted
to UsCo a non-exclusive licence to use the Software only for the purposes
provided in a license agreement entered into on November 8, 2000 between UsCo
and Ericsson, a copy of which is attached hereto as Exhibit A (the "LICENSE
AGREEMENT") to form part of this Assignment;
WHEREAS UsCo has, under the License Agreement, an assignable right to sublicense
use of the Software only as provided in the License Agreement;
WHEREAS UsCo wishes to assign to NSCo its right to sublicense use of the
Software only as provided in the License Agreement;
WHEREAS NSCo agrees to be bound by all of the terms and conditions of the
License Agreement;
WHEREAS Ericsson agrees to the assignment by UsCo to NSCo of its right to
sublicense use of the Software and undertakes to be bound toward NSCo by all of
its obligations under the License Agreement;;
NOW THEREFORE the parties hereto hereby covenant and agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS - As used in this Assignment, the following terms have the
following meaning:
1.1.1 "ASSIGNMENT" means this Assignment of Right to Sublicense Use
of the Software;
1.1.2 "LICENSE AGREEMENT" means the License Agreement entered into
on November 8, 2000 between UsCo and Ericsson, together with
all the exhibits, schedules and written instruments
supplemental thereto;
1.1.3 "NSCO SHARES" means 633,659 common shares of the capital stock
of NSCo issued to UsCo pursuant to this Assignment;
1.1.4 "SUBSIDIARY" means a company which satisfies the conditions
provided at Section 2(5) of the Canada Business Corporations
Act;
1.1.5 "TERMS & CONDITIONS" means the terms and conditions set forth
in Schedule 1 to the License Agreement.
1.2 APPLICABLE LAW - This Assignment shall be construed and enforced in
accordance with, and the rights of the parties shall be construed and
governed by, the laws of the Province of Quebec and the laws of Canada
applicable therein.
1.3 CURRENCY - In this Assignment, all money amounts are expressed in
United States dollars unless otherwise provided.
1.4 RECITALS AND SCHEDULE - The recitals and Exhibits A and B form an
integral part of this Assignment.
1.5 HEADINGS - The titles and headings in this Assignment are solely for
reference and shall not affect the scope, intention or interpretation
of the provisions hereof.
1.6 GENDER - In all cases where the context of this Assignment requires or
permits same, the singular shall include the plural and the masculine
shall include the feminine.
1.7 ENTIRE AGREEMENT - This Assignment, together with the License
Agreement, constitute the entire agreement between the parties
pertaining to the subject matter hereof and supersede all prior
agreements, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter
hereof except as specifically set forth herein and, the other documents
to be delivered pursuant hereto.
1.8 SEVERABILITY - Each provision of this Assignment shall be interpreted
separately and the nullity of any provision of this Assignment shall
not render the remaining parts of the Assignment null.
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1.9 WAIVER - No supplement, modification or waiver or termination of this
Assignment shall be binding unless executed in writing by the party to
be bound thereby. No waiver of any of the provisions of this Assignment
shall be deemed or shall constitute a waiver of any other provisions
(whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
ARTICLE 2
ASSIGNMENT OF RIGHT TO SUB-LICENSE
2.1 ASSIGNMENT - UsCo hereby assigns to NSCo its right under the License
Agreement.
2.2 PRICE - As consideration for this Assignment to NSCo, NSCo shall pay to
UsCo an amount of $6,336,588.75 (the "PRICE").
2.3 PAYMENT - The Price is hereby paid to UsCo by NSCo by the delivery to
UsCo of the NSCo Shares.
2.4 The parties agree that all of the obligations of UsCo and Ericsson
under the License Agreement are incorporated herein by reference; NSCo
specifically undertakes to be bound by all of UsCo's obligations under
the License Agreement and Ericsson undertakes to be bound toward NSCo
by all of its obligations under the License Agreement.
ARTICLE 3
WARRANTIES AND REPRESENTATIONS OF USCO
UsCo warrants and represents to NSCo as follows and acknowledges that NSCo is
relying upon such representations and warranties in connection with the
assignment to NSCo of the right to sublicense use of the Software and that NSCo
would not have entered into this Assignment without the full benefit of such
warranties and representations.
3.1 CORPORATE STATUS - UsCo is a corporation duly incorporated, organized
and is validly existing under the laws of the State of Delaware (United
States of America) and is in good standing under the laws of each
jurisdiction in which it is carrying on business or in which it owns or
holds property.
3.2 POWERS AND AUTHORIZATIONS - UsCo has the capacity, power and authority
and full legal right to enter into and execute this Assignment and all
ancillary documents hereto and to perform all of its obligations
thereunder. UsCo has taken all necessary action to authorize the
execution of this Assignment and its ancillary documents on its behalf
by its officers, directors and shareholders and to authorize the
performance of all of its obligations thereunder; this Assignment and
such ancillary documents have been duly executed by a duly authorized
person on behalf UsCo and this Assignment and its ancillary documents
constitute valid and legally binding obligations of UsCo enforceable
against it in accordance with their terms, except as enforcement may be
limited by
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bankruptcy, insolvency, and other laws affecting the rights of
creditors generally and except that equitable remedies may be granted
only in the discretion of a court of competent jurisdiction.
3.3 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of NSCo or its attributes or actions, the execution
and performance of this Assignment as well as of all the documents
relating thereto shall not (i) place UsCo in a situation of default
under any agreement, contract or obligation of any kind, (ii) result in
the creation of, or require the creation of any lien upon the Software,
or (iii) result in the termination, cancellation, modification,
amendment, or renegotiations of any contract, agreement, indenture,
instrument or commitment to which the Software is subject.
3.4 TRUE AND COMPLETE REPRESENTATIONS AND WARRANTIES - The representations
and warranties of UsCo contained in this Assignment are true, accurate
and complete in all material respects and there has been no omission by
UsCo to state any fact necessary to make the statements herein not
misleading.
ARTICLE 4
WARRANTIES AND REPRESENTATIONS OF NSCO
NSCo warrants and represents to UsCo as follows and acknowledges that UsCo is
relying upon such representations and warranties in connection with the
assignment to NSCo of the right to sublicense use of the Software and that UsCo
would not have entered into this Assignment without the full benefit of such
warranties and representations.
4.1 CORPORATE STATUS - NSCo is a corporation duly incorporated, organized
and is validly existing under the laws of the Province of Nova Scotia
(Canada) and is in good standing under the laws of each jurisdiction in
which it is carrying on business or in which it owns or holds property.
4.2 SUBSIDIARY - NSCo is a wholly-owned subsidiary of UsCo in Canada.
4.3 CORPORATE POWERS AND AUTHORIZATIONS - NSCo has the capacity, power and
authority and full legal right to enter into and execute this
Assignment and all ancillary documents hereto and to perform all of its
obligations hereunder, including the obligations of UsCo under the
License Agreement. NSCo has taken all necessary action to authorize
execution of this Assignment and its ancillary documents on its behalf
by its officers, directors and shareholders and to authorize the
performance of all its obligations thereunder. This Assignment and such
ancillary documents have been duly executed by a duly authorized person
on behalf of NSCo and this Assignment and its ancillary documents
constitute valid and legally binding obligations of NSCo enforceable
against it in accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency, and other laws affecting the rights
of creditors generally and except that equitable remedies may be
granted only in the discretion of a court of competent jurisdiction.
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4.4 VALID ISSUANCE OF SHARES - The board of directors of NSCo has duly
authorized and issued to UsCo in accordance with all relevant and
applicable corporate and securities laws, the NSCo Shares, as fully
paid and non-assessable.
4.5 REPRESENTATIONS AND WARRANTIES - The representations and warranties of
NSCo contained in this Assignment are true, accurate and complete in
all material respects and there has been no omission by NSCo to state
any fact necessary to make the statements herein not misleading.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES - All the warranties and
representations and covenants and agreements made and given hereunder
or in any agreement contemplated hereby shall continue to have full
force and effect from the date of execution hereof.
ARTICLE 6
MISCELLANEOUS
6.1 FURTHER ASSURANCES - Each party upon the request of the other party,
whether before or after the date hereof, shall do, execute, acknowledge
and deliver or cause to be done, executed, acknowledged or delivered
all such further acts, deeds, documents, assignments, transfers
conveyances and assurances as may be reasonably necessary or desirable
to effect complete consummation of the transactions contemplated by
this Assignment.
6.2 SUCCESSORS IN INTEREST - This Assignment and the provisions hereof
shall enure to the benefit of and be binding upon the parties and their
respective successors and assigns. Neither NSCo or UsCo may assign any
of its rights and obligations hereunder without the prior consent of
the other party.
6.3 NOTICES - Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and shall be
delivered either by personal delivery or by telex, telecopier or
similar telecommunication device and addressed as follows:
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(a) in the case of UsCo, to it at:
MCE Holding Corporation
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of NSCo, to it at:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice, direction or other instrument aforesaid shall be deemed to have been
given and received, if sent by telex, telecopier or similar telecommunications
device on the next business day following receipt of such transmission or, if
delivered, to have been given and received on the date of such delivery. Any
party may change its address for service by written notice given as aforesaid.
6.4 EXPENSES - Each party shall bear and pay all costs, expenses and fees
(including, without limitation, legal counsel and accounting fees and
disbursements) incurred by it in connection with the preparation,
execution and consummation of this Assignment and the transactions
contemplated hereunder; it being understood, whether or not the
transaction contemplated in this Assignment and ancillary documentation
closes, UsCo shall not be responsible and shall not assume any of
NSCo's transaction expenses.
6.5 COUNTERPARTS - This Assignment may be executed in one or more
counterparts, each of which when so executed shall be deemed an
original, and such counterparts together shall constitute one and the
same instrument.
6.6 NO THIRD PARTY BENEFICIARIES - Except as otherwise indicated herein,
nothing in this Assignment shall confer any rights upon any person or
entity not a party or a permitted transferee of a party to this
Assignment.
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IN WITNESS WHEREOF, the parties and Ericsson have executed this Assignment on
the date and at the place first above mentioned.
MCE HOLDING CORPORATION
By: /s/ GUNNAR THORODSSEN
-------------------------------
3044016 NOVA SCOTIA COMPANY
By: /s/ GUNNAR THORODSSEN
-------------------------------
ERICSSON CANADA INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Counsel
----------------------------------
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EXHIBIT A
LICENSE AGREEMENT
ENTERED INTO AT MONTREAL, PROVINCE OF QUEBEC, ON NOVEMBER 8, 2000;
AMONG: MCE HOLDING CORPORATION, a corporation incorporated under the laws of
the State of Delaware, United States of America, having its registered
office in Dover, County of Kent, State of Delaware (U.S.A.), ("UsCo");
AND: ERICSSON CANADA INC., a corporation incorporated under the laws of
Canada, having its registered office in Montreal, Quebec, ("ERICSSON");
WITNESSETH:
WHEREAS ERICSSON TELECOM AB owns a certain computer software known as "IPULSE
1.5", the whole as described in more detail at Exhibit A hereto (the
"SOFTWARE");
WHEREAS ERICSSON TELECOM AB has granted to Ericsson a non-exclusive license to
use the Software as provided herein;
WHEREAS Ericsson wishes to grant to UsCo a non-exclusive license to use the
Software only for the purposes provided herein.
NOW THEREFORE the parties hereto hereby covenant and agree as follows.
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS - As used in this Agreement, the following terms have the
following meaning:
1.1.1 "AGREEMENT" means this License Agreement including its
recitals, its Schedules and all written instruments
supplemental hereto signed by all the parties hereto, and any
amendment or confirmation hereof;
1.1.2 "BUSINESS DAY" means any day, other than a Saturday, Sunday,
or other day on which the majority of the branches of the
principal commercial banks located in Montreal, Quebec are not
open for business during normal banking hours;
1.1.3 "LIENS" means (i) all hypothecs, mortgages, pledges,
privileges, liens, security interests, transfers of property
in stock, security granted under the Bank Act (Canada),
charges, leases, occupation rights, restrictive covenants,
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title defects and other encumbrances or rights of others of
any nature whatsoever or however arising, and (ii) all
actions, claims or demands of any nature whatsoever or
howsoever arising; and "Lien" means any one of them;
1.1.4 "MICROCELL" means Microcell Telecommunications Inc. and
certain affiliated companies, as defined in the Terms &
Conditions;
1.1.5 "PARTIES" means Ericsson and UsCo and "Party" means any one of
them;
1.1.6 "PERSON" means an individual, a corporation, a partnership, a
trustee or any unincorporated organization;
1.1.7 "SUBSIDIARY" means a company which satisfies the conditions
provided at Section 2(5) of the Canada Business Corporations
Act;
1.1.8 "TERMS & CONDITIONS" means the terms and conditions set forth
in Schedule 1 hereto.
1.1.9 "UsCo SHARES" means 31 fully paid and non-assessable common
shares of the Capital Stock of UsCo issued to Ericsson
pursuant to this Agreement.
1.2 OTHER DEFINITIONS - Defined terms in this Agreement, not otherwise
defined herein, have the meaning ascribed thereto in Schedule 1.
1.3 APPLICABLE LAW - This Agreement shall be construed and enforced in
accordance with, and the rights of the Parties shall be construed and
governed by, the laws of the Province of Quebec and the laws of Canada
applicable therein.
1.4 CURRENCY - In this Agreement, all money amounts are expressed in United
States dollars unless otherwise provided.
1.5 RECITALS AND SCHEDULE - The recitals, Schedule 1 and Exhibits A and B
form an integral part of this Agreement.
1.6 HEADINGS - The titles and headings in this Agreement are solely for
reference and shall not affect the scope, intention or interpretation
of the provisions hereof.
1.7 GENDER - In all cases where the context of this Agreement requires or
permits same, the singular shall include the plural and the masculine
shall include the feminine.
1.8 ENTIRE AGREEMENT - This Agreement, and the agreements and other
documents to be delivered pursuant hereto, constitute the entire
agreement between the Parties pertaining to the subject matter hereof
and supersede all prior agreements, and there are no warranties,
representations or other agreements between the Parties in connection
with the subject matter hereof except as specifically set forth herein
and, the other documents to be delivered pursuant hereto.
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1.9 SEVERABILITY - Each provision of this Agreement shall be interpreted
separately and the nullity of any provision of this Agreement shall not
render the remaining parts of the Agreement null.
1.10 WAIVER - No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to
be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
(whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
ARTICLE 2
GRANT OF LICENSE
2.1 LICENSE - Ericsson hereby grants to UsCo a non-transferable,
non-revocable, non-exclusive license to use the Software only for the
purpose of granting a non-transferable sublicense to Microcell, only
for use in Canada on the Terms and Conditions, The right to sublicense
granted hereunder may be assigned to a wholly owned subsidiary of UsCo
in Canada, subject to such subsidiary agreeing to be bound by all of
UsCo's obligations under this Agreement. Any rights other than those
required to provide the rights expressly granted to Microcell as set
forth in the Terms and Conditions, have been retained by Ericsson
Telecom A.B. and are not included in this Agreement.
2.2 SUBLICENSE - The sublicense with Microcell shall reflect all of the
Terms and Conditions and shall be consistent therewith.
2.3 PRICE - As consideration for the license hereby granted to UsCo, UsCo
shall pay to Ericsson an amount of $6,336,588.75 (the "Price").
2.4 PAYMENT - The Price is hereby paid to Ericsson by UsCo by the delivery
to Ericsson of the UsCo Shares.
2.5 The parties agree that the obligations provided at Article 7
(Confidentiality) of the Terms and Conditions are incorporated herein
by reference to bind the parties hereto and UsCo also undertakes to
enforce compliance of its sublicensee with these obligations and with
the obligations set forth in Article 3 (Trade-marks) of the Terms and
Conditions.
ARTICLE 3
WARRANTIES AND REPRESENTATIONS OF ERICSSON
Ericsson warrants and represents to UsCo as follows and acknowledges
that UsCo is relying upon such representations and warranties in
connection with the granting of the license and that UsCo would not
have entered into this Agreement without the full benefit of such
warranties and representations.
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3.1 CORPORATE STATUS - Ericsson is a corporation duly incorporated,
organized and is validly existing under the laws of Canada and is in
good standing under the laws of each jurisdiction in which it is
carrying on business or in which it owns or holds property.
3.2 POWERS AND AUTHORIZATIONS - Ericsson has the capacity, power and
authority and full legal right to enter into and execute this Agreement
and to perform all of its obligations hereunder; Ericsson has taken all
necessary action to authorize the execution of this Agreement on its
behalf by its officers, directors and shareholders and to authorize the
performance of all of its obligations hereunder; this Agreement has
been duly executed by a duly authorized person on behalf of Ericsson
and this constitutes valid and legally binding obligations of Ericsson
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction.
3.3 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of UsCo or its attributes or actions, the execution
and performance of this Agreement as well as of all the documents
relating thereto shall not (i) place Ericsson in a situation of default
under any agreement, contract or obligation of any kind, (ii) result in
the creation of, or require the creation of any Lien upon the Software,
or (iii) result in the termination, cancellation, modification,
amendment, or renegotiations of any contract, agreement, indenture,
instrument or commitment to which the Software is subject.
3.4 TRUE AND COMPLETE REPRESENTATIONS AND WARRANTIES - The representations
and warranties of Ericsson contained in this Agreement are true,
accurate and complete in all material respects and there has been no
omission by Ericsson to state any fact necessary to make the statements
herein not misleading.
ARTICLE 4
WARRANTIES AND REPRESENTATIONS OF USCO
UsCo warrants and represents to Ericsson as follows and acknowledges that
Ericsson is relying upon such representations and warranties in connection with
the granting of the license to UsCo and that Ericsson would not have entered
into this Agreement without the full benefit of such warranties and
representations.
4.1 CORPORATE STATUS - UsCo is a corporation duly incorporated, organized
and is validly existing under the laws of the State of Delaware (United
States of America) and is in good standing under the laws of each
jurisdiction in which it is carrying on business or in which it owns or
holds property.
4.2 CORPORATE POWERS AND AUTHORIZATIONS - UsCo has the capacity, power and
authority and full legal right to enter into and execute this Agreement
and all ancillary documents hereto and to perform all of its
obligations thereunder. UsCo has taken all necessary action to
authorize the execution of this Agreement and its ancillary documents
on its behalf by its officers, directors and shareholders and to
authorize the performance of all of its obligations thereunder; this
Agreement and such ancillary documents have been duly executed by a
duly authorized person on behalf UsCo and this Agreement and its
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ancillary documents constitute valid and legally binding obligations of
UsCo enforceable against it in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction.
4.3 VALID ISSUANCE OF SHARES - The board of directors of UsCo has duly
authorized and issued to Ericsson, in accordance with all relevant and
applicable corporate and securities laws, the UsCo Shares, as fully
paid and non-assessable, free and clear of any liens.
4.4 The minute books of UsCo and its Canadian subsidiary are complete and
accurate and contain copies of all by-laws and resolutions passed by
its stockholders and directors since the date of their incorporation;
all of which by-laws and resolutions have been duly passed. The share
certificate books, register of stockholder, register of transfer and
register of directors are complete and accurate.
4.5 REPRESENTATIONS AND WARRANTIES - The representations and warranties of
UsCo contained in this Agreement are true, accurate and complete in all
material respects and there has been no omission by UsCo to state any
fact necessary to make the statements herein not misleading.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES - All the warranties and
representations and covenants and agreements made and given hereunder
or in any agreement contemplated hereby shall continue to have full
force and effect from the date of execution hereof, notwithstanding any
verification made by any of the Parties.
ARTICLE 6
TERM
6.1 TERM - This Agreement shall terminate on the date which is three (3)
years from the date (the "Commencement Date") which is earlier of (a)
the first commercial use of the Software by Microcell and (b) May 15,
2001.
ARTICLE 7
INDEMNITY AND LIMITATION OF WARRANTY
7.1 Subject to Section 7.5 below, Ericsson will defend, at its expense, any
actions brought against UsCo to the extent that the use of the Software
infringes any third party's
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intellectual property rights and Ericsson shall indemnify and hold UsCo
harmless with respect to all resulting court costs and damages
definitely awarded against UsCo for such infringement of intellectual
property rights, except where UsCo uses the Software in conjunction
with equipment or apparatus not supplied by Ericsson and the
infringement arises from such use in conjunction with this equipment or
apparatus, the whole provided that:
7.1.1 UsCo notifies Ericsson in writing of any matter in respect of
which the foregoing may apply within five (5) Business Days of
becoming aware of such matter; and
7.1.2 Ericsson has sole control over the defense, settlement or
compromise of any such action.
7.2 Subject to Section 7.5 below, if the use of the Software is held to
constitute infringement of a third party's rights or in Ericsson's
opinion is likely to become the subject of a claim based on an alleged
infringement or breach as aforesaid, Ericsson must use commercially
reasonable efforts to accomplish, at its expense, one of the following,
at its option:
7.2.1 modify the Software so that there is no longer any
infringement or breach;
7.2.2 procure for UsCo the right to continue to use the Software as
modified;
7.2.3 replace the Software, or any part thereof with non-infringing
software or component.
The foregoing states the entire liability of Ericsson with respect to
any intellectual property claim made against UsCo.
7.3 Subject to 7.4 below, Ericsson warrants only that the Software will
perform in substantial accordance with the accompanying user manual,
documents or product descriptions for ninety (90) days following the
Commencement Date. Ericsson's and Ericsson Telecom A.B.'s entire
liability and UsCo's exclusive remedy for any claim against them shall
be, at Ericsson's option, to repair or replace the portion of the
Software which does not meet the above limited warranty; provided that
there have been no modifications to, or attempts to modify, the
Software in any manner whatsoever and the non-performing portion of the
Software is returned to Ericsson. Except as provided above, the
Software is provided "As Is" and without warranties, express or
implied, including implied warranties of merchantability or fitness for
a particular purpose. UsCo assumes all risks as to selection, quality,
installation, results and performance. Ericsson does not warrant that
the Software will meet UsCo's or its sublicensees' requirements or that
the operation of the Software will be uninterrupted or error free.
7.4 Neither Ericsson nor Ericsson Telecom A.B. nor any of their suppliers
shall be liable for any special, incidental, indirect, or consequential
damages whatsoever (including without limitation loss of business or
profits, business interruption or delay, or loss or inability to use
data), even if they or any of their suppliers have been advised of the
possibility of such damages. Regardless of whether any remedy set forth
in this Agreement fails of its essential purpose, UsCo shall have no
other recourse in connection with its use of the Software.
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7.5 Any recourse which UsCo might otherwise have against Ericsson pursuant
to Section 7.1 and 7.2 will not apply to any portion of the Software
which was created, developed or supplied to Ericsson by ▇▇.▇▇▇ or any
related company under the terms of the General Cooperation and
Development Agreement between Ericsson Radio Systems AB and ▇▇.▇▇▇ ("OZ
Software"), and where any action for infringement arises in connection
with the use of OZ Software, Ericsson shall have no obligation to UsCo
or any sublicensee and UsCo renounces to any rights or recourses it may
have against Ericsson and agrees that the sole recourse available to it
or its licensees shall be against ▇▇.▇▇▇.
7.6 The provisions of this Article 7 shall survive the termination or
expiration of this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 FURTHER ASSURANCES - Each Party upon the request of the other Party,
whether before or after the date hereof, shall do, execute, acknowledge
and deliver or cause to be done, executed, acknowledged or delivered
all such further acts, deeds, documents, assignments, transfers
conveyances and assurances as may be reasonably necessary or desirable
to effect complete consummation of the transactions contemplated by
this Agreement.
8.2 SUCCESSORS IN INTEREST - This Agreement and the provisions hereof shall
enure to the benefit of and be binding upon the Parties and their
respective successors and assigns. UsCo and Ericsson may not assign
this Agreement or any of its rights and obligations hereunder without
the prior consent of the other Party, save and except that UsCo may
assign this Agreement as specifically provided herein or to ▇▇.▇▇▇
pursuant to a merger or any other type of reorganization.
8.3 NOTICES - Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and shall be
delivered either by personal delivery or by telex, telecopier or
similar telecommunication device and addressed as follows:
(a) in the case of Ericsson, to it at:
ERICSSON CANADA INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Town of Mount Royal, Quebec
H4P 2N2
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) in the case of UsCo, to it at:
MCE Holding Corporation
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Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice, direction or other instrument aforesaid shall be deemed to
have been given and received, if sent by telex, telecopier or similar
telecommunications device on the next Business Day following receipt of
such transmission or, if delivered, to have been given and received on
the date of such delivery. Any Party may change its address for service
by written notice given as aforesaid.
8.4 EXPENSES - Each party shall bear and pay its respective costs, expenses
and fees (including, without limitation, legal counsel and accounting
fees and disbursements) incurred by it in connection with the
preparation, execution and consummation of this Agreement and the
transactions contemplated hereunder; it being understood, whether or
not the transaction contemplated in this Agreement and ancillary
documentation closes, Ericsson shall not be responsible and shall not
assume any of UsCo's transaction expenses.
8.5 COUNTERPARTS - This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an
original, and such counterparts together shall constitute one and the
same instrument.
8.6 NO THIRD PARTY BENEFICIARIES - Except as otherwise indicated herein,
nothing in this Agreement shall confer any rights upon any Person or
entity not a party or a permitted transferee of a party to this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at
the place first above mentioned.
ERICSSON CANADA INC.
By: ____________________________________
MCE HOLDING CORPORATION
By: ____________________________________