Exhibit 10.13


 


LIMITED LICENSE OF GATEWAY’S RIGHTS


 


This Limited License of Gateway’s Rights (“Agreement”) is entered into effective
as of October 1, 2007 (“Effective Date”),
by and between MPC Corporation, a Colorado corporation (“Licensee” or “MPC”) and Gateway, Inc., a Delaware corporation (“Licensor” or “Gateway”). MPC and Gateway may be referred to individually as a “Party”
or collectively as the “Parties” to this Agreement.


 


Recitals


 


A.            Gateway, through its “Professional
Division” and that portion of its consumer direct division that provides
business-related products, is engaged in the manufacture, assembly, sale,
resale and marketing of desktop computer systems, laptops, servers, networking
gear and other peripherals, and replacement parts with respect thereto, and the
provision of technical services to small to medium-sized businesses
(collectively, the “Business”);


 


B.            Gateway and MPC have
entered into an Asset Purchase Agreement dated as of  September 4, 2007 (the “Asset Purchase Agreement”) pursuant to
which MPC has agreed, among other things, to purchase from Gateway certain
assets and liabilities (the “Purchased Assets and Liabilities”) associated with
the Business; and


 


C.            As a part of the Asset Purchase Agreement,
Gateway is willing to license to MPC certain limited rights for the purpose of
facilitating the transfer of the Purchased Assets and Liabilities to MPC.


 


Agreement


 


In consideration of the foregoing and the
respective representations, warranties, covenants, agreements and conditions hereinafter
set forth and in the Asset Purchase Agreement, and intending to be legally
bound hereby, the Parties hereto agree as follows:


 


1.             Definitions


 


1.1           “Licensed
Mark” means any registered or unregistered trademark, brand or logo
referenced in Attachment A.


 


1.2           “Licensed
Product” means any Product model, version or configuration in the “List
of Licensed Products” attached hereto as Attachment B.


 


1.3           “Product”
means desktop computer systems, laptops, servers, networking gear and other
peripherals, and replacement parts with respect thereto.


 


1.4           “Proprietary
Designs” mean the form, structure, features and appearance of any
Licensed Products and the plans, drawings, sketches and other design
information necessary to manufacture and assemble the Licensed Products. Proprietary
Designs are limited to the extent of Gateway’s proprietary interest.


 


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1.5           “Shared Tooling” means the tooling for
Products (and their component parts) that will be sold both by MPC and by
Gateway after the Effective Date and listed in Attachment C. Shared Tooling is
limited to the extent of Gateway’s proprietary interest in the tooling.


 


1.6           “Strategic Acquisition of MPC” has the
meaning provided in Section 6.6.


 


1.7           “Term”
has the meaning provided in Section 6.1.


 


1.8           “Territory”
means the United States and Canada.


 


2.             Limited
License to Gateway’s Trademarks


 


2.1           Trademark License. Subject to the
terms and conditions of this Agreement, including, without limitation, the
provisions of this Article 2, Gateway hereby grants MPC, for up to one year
from the Effective Date and solely within the Territory, a non-exclusive,
non-transferable, non-sublicenseable, royalty-free license to use the Licensed
Marks on Licensed Products, on documentation related to Licensed Products, on
packaging for Licensed Products, in images that may appear on customers’
computer screens while using Licensed Products, and in manufacturing and
assembling Licensed Products, consistent with Gateway’s past practices (“Licensed
Uses”). For the avoidance of doubt, subject to the terms and conditions of this
Agreement, including, without limitation, the provisions of this Article 2, the
license granted in the immediately preceding sentence shall extend to
cross-sales of Licensed Products by MPC to MPC’s current customers.


 


2.2           Purpose. MPC understands and
acknowledges that this license is granted solely for the purposes of
facilitating the transfer of the Purchased Assets and Liabilities to MPC and
providing a stable brand image to existing Business customers. MPC further
understands and acknowledges that MPC’s uses of the Licensed Marks are limited
to uses consistent with these purposes and with Gateway’s past practices. MPC
agrees to use commercially-reasonable efforts to transition away from the use
of the Licensed Marks.


 


2.3           Use of Licensed Marks. MPC shall only
use the Licensed Marks for Licensed Uses:


 


2.3.1        MPC will not use the Licensed Marks on new
Product models or versions that were not sold by Gateway on or before the
Effective Date, unless Gateway agrees in writing to allow the use. This
restriction shall not prevent MPC from using the Licensed Marks on
configure-to-order Products.


 


2.3.2        MPC may use the Licensed Marks only as they
have been previously used by Gateway, unless Gateway agrees in writing to allow
a different use.


 


2.3.3        MPC shall not alter the look or the placement
of a Licensed Mark on any Licensed Product that differs from the look or
placement of the Licensed 


 


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Mark on that
product when sold by Gateway, unless Gateway agrees in writing to allow a
different look or placement.


 


2.3.4        Any and all uses by MPC of the Licensed Marks
on all Licensed Products shall be in accordance with Gateway’s trademark use
guidelines. Copies of Gateway’s trademark use guidelines, entitled “Style Guide”
and “Product ID Style Guide”, are attached hereto as Attachments D and E,
respectively. In its sole discretion, Gateway may amend, alter or replace the
Licensed Marks or revise Gateway trademark use guidelines by sending MPC notice
thereof. Such marks and guidelines shall become effective, and shall be adhered
to by MPC, within sixty (60) days of MPC’s receipt of notice.


 


2.3.5        For up to six (6) months from the Effective Date,  MPC may ship Licensed Product in cow-spotted
boxes substantially similar to the boxes used by Gateway on the Effective Date.
MPC shall not alter the appearance of these boxes, unless Gateway agrees in
writing to allow a different appearance. MPC shall only ship Gateway-branded
Product in these boxes.


 


2.4           Additional Restrictions on MPC’s Use of
Licensed Marks. MPC shall not use the Licensed Marks in conjunction with
any direct or indirect sales to consumers. MPC shall not use the Licensed Marks
in conjunction with sales to any retailer or direct market reseller, whether or
not all or a portion of the sales made by the retailer or direct market
reseller are to businesses. Examples of these include, but are not limited to,
Best Buy, CDW, Circuit City, CompUSA, Costco, HSN, Ingram Micro, J&R
Computer World, Micro Center, Office Depot and Staples.


 


2.5           Foreign Sales. For the avoidance of
doubt, MPC’s license under this Agreement does not include the right to use the
Licensed Marks on Products for sale to end-users residing outside of the
Territory; provided, however, that MPC may ship to customers of the Business
with ship-to locations outside the United States and Canada.


 


2.6           No Damage or Dilution. MPC agrees
that it will not use the Licensed Marks in any way that would damage or dilute
the value of, or the reputation associated with, the Licensed Marks. MPC
understands and acknowledges that the failure to sell quality Gateway-branded
Product or to provide quality warranty support to the customers of the Business
that is equivalent to or better than the warranty support provided by Gateway
to its customers immediately prior to the Effective Date will damage and dilute
the value of, or reputation associated with, the Licensed Marks and will
entitle Gateway to immediately seek injunctive relief under Section 7.4.


 


2.6.1        MPC shall undertake such steps as Licensor may
deem reasonable to assist Gateway in monitoring the quality of the Licensed
Products provided by Licensee under the Licensed Marks. Licensee shall permit
reasonable inspection of Licensee’s operations and supply Licensor with
specimens of use of the Licensed Marks upon request. Gateway has the right to
take all reasonable actions that it deems necessary to ensure that Licensee’s
activities under this Agreement and uses of the Licensed Marks are consistent
with the reputation for 


 


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quality and
prestige of Products bearing the Licensed Marks which were sold by Gateway on
or before the Effective Date.


 


2.7           Advertising. MPC shall not use the
Licensed Marks in any advertising, except for the limited purpose of announcing
that MPC has acquired the Purchased Assets and Liabilites. Any advertising done
consistent with this Section 2.7 shall occur no sooner than the Effective Date
and shall terminate no later than 90 days after the Effective Date. The use of
the Licensed Marks for this limited purpose shall be consistent with Gateway’s
brand guidelines and subject to Gateway’s approval. Before any advertising campaign
is launched using a Licensed Mark, MPC shall make samples and other information
available to facilitate Gateway’s review and approval. Gateway shall have the
right to make reasonable objections to the advertising on the grounds the use
is inconsistent with Gateway’s brand guidelines, will damage or dilute the
value of, or reputation associated with, the Licensed Marks or is inconsistent
with the purpose of this Agreement. Gateway shall not unreasonably withhold
approval and shall exercise its approval rights in good faith.


 


2.8           Interest in Licensed Marks. MPC
acknowledges that it has no interest in the Licensed Marks other than the
limited license granted under this Agreement and that Gateway will remain the
sole and exclusive owner of all right, title and interest in and to the
Licensed Marks. MPC agrees that Licensee’s use of the Licensed Marks and any
goodwill associated in the Licensed Marks resulting from Licensee’s use will
inure solely to the benefit of Gateway and will not create any right, title or
interest of Licensee in the Licensed Marks. If MPC uses, registers or applies
to register any mark in violation of its obligations under this Agreement, MPC
agrees, upon Licensor’s request, immediately to cease the use of that mark and
to assign to Gateway all Licensee’s rights in that mark, including any
application or registration for that mark.


 


2.8.1        Representations Regarding Gateway or
Licensed Marks. MPC shall not represent or imply that Licensee is in fact
Gateway, or is a part of Gateway. MPC shall not represent or imply that it
holds any ownership interest in the Licensed Marks. MPC shall not challenge
Gateway’s ownership of the Licensed Marks, use any trademarks, service marks,
trade names or logos confusingly similar to the Licensed Marks, or register any
trademarks, service marks, trade names or logos identical or confusingly
similar to the Licensed Marks in any jurisdiction, whether in its own name or
otherwise. MPC shall acquire no rights by implication, estoppel or otherwise,
except as expressly granted herein. All rights not expressly granted to MPC are
reserved for Gateway.


 


2.8.2        Protection and Enforcement of Rights in the
Marks. Licensee admits the validity of, and agrees not to challenge the
Licensed Marks or Gateway’s ownership of the Licensed Marks. Gateway shall have
the exclusive right to enforce Gateway’s rights in the Licensed Marks as
Gateway believes is necessary in its sole discretion, with MPC’s reasonable
cooperation.


 


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2.9           Representations Regarding Warranty
Support. MPC shall inform customers purchasing Gateway-branded Products
from MPC that MPC, not Gateway, will be providing all customer service and
support, including technical and warranty support (“Customer Support”). MPC shall
not represent or imply that Gateway will provide or will be in any way
responsible for Customer Support to MPC customers purchasing Gateway-branded
Products from MPC. Any information on the outside of, on packaging for, or
within the software loaded on any Gateway-branded Product sold by MPC shall
specifically state that Gateway is not to be contacted for Customer Support, in
each case no later than the date that is (i) two weeks after the Effective
Date, in the case of written materials, documentation and information contained
on the outside of or on packaging for any Gateway-branded Product sold by MPC
and (ii) four weeks after the Effective Date, in the case of information within
the software loaded on any Gateway-branded Product sold by MPC.


 


2.10         Disposal of Gateway-Branded Products. With
respect to the disposal of Gateway-branded Products, MPC agrees to comply with
all applicable environmental laws. MPC accepts full responsibility for, and
agrees to pay, any fees, charges, taxes, penalties, fines or other costs
incurred as the result of the disposal of Gateway-branded Products (“Environmental
Fees”) sold by MPC. If Gateway pays Environmental Fees for which MPC is in
whole or in part responsible, then MPC shall pay Gateway for its share
immediately, but in no case later than 30 days after written notice from
Gateway. In circumstances in which there is a dispute whether MPC or Gateway is
responsible for all or any portion of an Environmental Fee, the parties agree
to negotiate a resolution of the dispute in good faith.


 


2.11         IP License Fees and Royalties. In
licensing MPC to use the Licensed Marks on Licensed Products, Gateway is not
thereby agreeing to pay or become responsible for license fees and royalties
for which MPC is or may become liable in manufacturing, importing or selling
Licensed Products. MPC agrees that it shall be responsible for any and all
license fees and royalties for which MPC may become liable.


 


3.             Limited
License to Gateway’s Product Designs and Shared Tooling


 


3.1           License to Proprietary Designs and Shared
Tooling. Subject to the terms and conditions of this Agreement, including,
without limitation, the provisions of this Article 3, Gateway hereby grants to
MPC, during the Term of this Agreement and solely within the Territory,  a non-exclusive, non-transferrable,
non-sublicenseable, royalty-free license to use Gateway’s Proprietary Designs
and the Shared Tooling.


 


3.2           Use of Proprietary Designs and Shared
Tooling. During the Term of this Agreement, MPC may use the Proprietary
Designs and Shared Tooling for Licensed Products, consistent with the trademark
license in Article 2 above, and for MPC-branded Products. MPC shall not use the
Proprietary Designs or the Shared Tooling for third-party branded Products,
even if those Products have been manufactured or assembled by MPC or at MPC’s
direction. MPC shall not use the Proprietary Designs or the Shared Tooling for
Products to be sold directly or indirectly to consumers or to any retailer or
direct market reseller.


 


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3.3           Modification of Shared Tooling. MPC
shall not modify or seek to modify the Shared Tooling without first obtaining
Gateway’s written consent. Gateway may in good faith reject any proposed
modification, including, but not limited to, modifications that may cause
potential disruption to Gateway’s business.


 


3.4           Capacity Constraints. Certain
Products for which Shared Tooling will be used (“Shared Products”) are
available from suppliers in limited quantities and may be subject to capacity
constraints. If, at any time, Gateway’s and MPC’s combined demand for a Shared
Product exceeds the amount available from the supplier, then the supply of that
Shared Product will be allocated eighty percent (80%) to Gateway and twenty
percent (20%) to MPC (“Allocated Percentages”). However, if a Party’s demand
for the Shared Product is less than its Allocated Percentage, then the
difference between its demand and its Allocated Percentage shall go to the
other Party.


 


3.5           Interest in Proprietary Designs and
Shared Tooling. MPC acknowledges that it has no interest in the Proprietary
Designs and Shared Tooling, other than the limited license granted under this
Agreement and that Gateway will remain the sole and exclusive owner of all
right, title and interest in and to the Proprietary Designs and the Shared
Tooling. MPC will use commercially-reasonable efforts to protect Gateway’s
proprietary interests and intellectual property rights in the Proprietary
Designs and Shared Tooling.


 


3.6           Claims
Arising from Use of Proprietary Designs and Shared Tooling. MPC
acknowledges and understands that Gateway assumes no liability, risk or costs
arising from or associated with MPC’s use of the Proprietary Designs or Shared
Tooling, including, but not limited to, the risk that the Proprietary Designs
or Shared Tooling or the Products assembled or manufactured therefrom, infringe
the patents of a third party, are defective or are lacking in quality or
performance. Gateway shall not be liable to MPC for any claim for damages
arising from or associated with MPC’s use of the Proprietary Designs or Shared
Tooling, including, but not limited to, claims for indemnification or claims
for general, special, incidental or consequential damages.


 


3.7           Return of Proprietary Designs on
Termination. Within thirty (30) days of the termination of this Agreement,
MPC agrees, unless otherwise directed by Gateway in writing, to return to
Gateway all Proprietary Design information and documentation provided to MPC
under this Agreement, including plans, drawings, sketches and other design
information.


 


4.             Limited Assignment of Patent
Licenses


 


4.1           Active English. To the extent permitted by Section 5 of the
License Agreement between Active English Information Systems, Inc. and Gateway,
dated May 18, 2001 (the “Active English Agreement”), and the provisions therein
applying to “the sale or transfer ... of an entire line of business,” Gateway
grants MPC a limited assignment of the license granted under the Active English
Agreement to make, use, sell, import or offer for sale Licensed Products under
this Agreement.  The limited assignment grant shall survive termination of
this Agreement and shall expire upon the earlier of the 


 


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termination of the license granted to Gateway
under the Active English Agreement or in the event of a Strategic
Acquisition of MPC, and at such
time all rights, if any, that MPC receives from this limited assignment shall
revert to Gateway.


 


4.2           American Video Graphics. To the extent permitted by Section 7 of the
Settlement, Release and License Agreement among American Video Graphics, L.P.,
AV Graphics, L.L.C. and Gateway, among others (the “AVG Agreement”), and the
provisions therein applying to “the acquirer of all or substantially all of ... a
business unit,” Gateway grants MPC a limited assignment of the license granted
under the AVG Agreement to make, use, sell, import or offer for sale Licensed
Products under this Agreement.  The limited assignment grant shall survive
termination of this Agreement and shall expire upon the earlier of the
termination of the license granted to Gateway under the AVG Agreement or in
the event of a Strategic Acquisition of MPC,
and at such time all rights, if any, that MPC receives from this limited
assignment shall revert to Gateway.


 


4.3           Compression Labs. To the extent permitted by Article 9 of the
Patent License and Settlement Agreement among Forgent Networks, Inc. and its
wholly-owned subsidiary, Compression Labs, Inc., and Gateway, among others (the
“Compression Labs Agreement”), and the provisions therein applying to the sale,
transfer or disposal “to a third-party any subsidiary, business or product
line,” Gateway grants MPC a limited assignment of the license granted under the
Compression Labs Agreement to make, use, sell, import or offer for sale
Licensed Products under this Agreement.  The limited assignment grant
shall survive termination of this Agreement and shall expire upon the earlier
of the termination of the license granted to Gateway under the Compression Labs
Agreement or in the event of a Strategic Acquisition of MPC, and at such time all rights, if any, that MPC
receives from this limited assignment shall revert to Gateway.


 


5.             Representations
and Warranties


 


5.1           Representations and Warranties of Gateway.
Gateway represents and warrants that:


 


5.1.1        Gateway owns the Licensed Marks and has the
right to grant the rights given to MPC in this Agreement; and


 


5.1.2        Gateway has the requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated thereby.


 


5.2           Representations and Warranties of MPC.
MPC represents and warrants that:


 


5.2.1        MPC’s uses of the Licensed Marks will be
limited to, and consistent with, the purpose of this Agreement; and


 


5.2.2        MPC has the requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated thereby.


 


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6.             Term
and Termination


 


6.1           Term. Subject to Sections 6.1.1 and
6.1.2, this Agreement is effective as of the Effective Date and shall continue
in full force and effect for a term of five (5) years from the Effective Date,
unless earlier terminated or otherwise limited in accordance with the
provisions of this Article 6 (the “Term”).


 


6.1.1        Termination
of License to Use Licensed Marks. Subject to Section 6.1.2, the license to
use the Licensed Marks granted in Article 2 shall terminate one (1) year after
the Effective Date.


 


6.1.2        Termination
of License to Use Cow-Spotted Box. The license to use the cow-spotted boxes
in shipment of Licensed Product, as provided in Section 2.3.5, shall terminate
six (6) months after the Effective Date.


 


6.2           Termination of the Asset Purchase
Agreement. If the Asset Purchase Agreement is terminated, then this
Agreement shall terminate automatically, unless otherwise agreed by the Parties
in writing.


 


6.3           Breach. In the event MPC breaches any
of its obligations under this Agreement, or any of its obligations under the
Asset Purchase Agreement, Gateway may terminate this Agreement and the licenses
granted herein by giving notice in writing to MPC of the breach. In the event
MPC does not correct or eliminate the breach within thirty (30) days from the
date of receipt of such notice, this Agreement, including the licenses to use
the Licensed Marks and Proprietary Designs, shall terminate automatically.


 


6.4           Insolvency. This Agreement and the
licenses granted herein shall terminate automatically if any of the following
shall occur:  (i) MPC dissolves,
liquidates or ceases business; (ii) MPC is insolvent; (iii) MPC files a
petition for bankruptcy protection, is bankrupt or otherwise seeks relief under
or pursuant to any bankruptcy, insolvency or reorganization statute or
proceeding; (iv) if a petition in bankruptcy is filed against MPC and is not
discharged within sixty (60) days thereafter; (v) if MPC makes an assignment
for the benefit of creditors; or (vi) if a custodian, receiver or trustee is
appointed for MPC or for a substantial portion of MPC’s business or assets and
such appointment is not discharged within sixty (60) days thereafter.


 


6.5           Cease Use of Licensed Marks. In the
event MPC ceases to use, with the intent not to resume, the Licensed Marks,
then the license granted under this Agreement to use the Licensed Marks will
terminate automatically. In any case, MPC’s use of the Licensed Marks shall
cease no later than one (1) year after the Effective Date. In the event MPC
ceases to use, with the intent not to resume, the Proprietary Designs, then the
license granted under this Agreement to use the Proprietary Designs will
terminate automatically.


 


6.6       Change
of Control.   Gateway may, in its sole discretion, immediately
terminate this Agreement, in whole or in part, in the event of a Strategic
Acquisition of MPC. A “Strategic Acquisition of 


 


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MPC” shall
mean an acquisition of MPC by a third party, unless such third party is a
Financial Buyer.  An acquisition of MPC shall be deemed to occur upon any
of (a) a merger, consolidation or other reorganization to which MPC is a party
if the individuals and entities who were stockholders of MPC immediately prior
to the effective date of such merger, consolidation or other reorganization
have “beneficial ownership” (as defined in Rule 13d-3 under the Securities and
Exchange Act of 1934) of less than fifty percent (50%) of the total combined
voting power for the election of directors (or their equivalent) of the
surviving entity following such effective date, (b) the acquisition by any
entity or group of direct or indirect “beneficial ownership” in the aggregate
of MPC securities then issued and outstanding representing fifty percent (50%)
or more of the total combined voting power of MPC, (c) the sale of all or
substantially all of the assets of MPC, (d) the liquidation of MPC, or (e) a
change in the composition of a majority of MPC’s board of directors following
an election contest if such change results in the effective control of MPC’s 
board of directors by a third party. The term “Financial Buyer” shall mean
a private equity fund, hedge fund, pooled investment vehicle or similar person
or entity that is primarily engaged in investment activities as opposed to
direct or indirect operations of a commercial nature.


 


6.7           Effect of Termination. In the event
of the termination of this Agreement or the Asset Purchase Agreement, MPC shall
discontinue immediately any and all uses of the Licensed Marks or the
Proprietary Designs.


 


7.             Miscellaneous


 


7.1           Confidentiality. Each Party agrees
not to disclose any term or condition of this Agreement to any third party
without the prior written consent of the other Party. This obligation is
subject to the following exceptions:


 


7.1.1        Disclosure is permissible if required by
government or court order, provided that, to the extent permitted by applicable
law, rule or regulation, the Party required to disclose first gives the other
Party prior written notice to enable it to seek a protective order;


 


7.1.2        Disclosure is permissible if otherwise required
by law;


 


7.1.3        Disclosure is permissible if required to
enforce rights under this Agreement;


 


7.1.4        Each Party may disclose the terms and
conditions of this Agreement to the extent necessary, on a confidential basis
to accountants, attorneys, financial advisors, present or future providers of
venture capital and/or potential investors in or acquirers of such Party or
product lines; or


 


7.1.5        Each Party may disclose this Agreement to
present or future suppliers, developers, assemblers or licensees, or other
entities with business related to the development of the Party’s products.


 


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Notwithstanding the foregoing, each Party may disclose that, in
conjunction with the sale of the Business to MPC, MPC has acquired a limited
right to use Gateway’s trademarks for up to one (1) year.


 


7.2           Survival. Section 2.8 (“Interest in
Licensed Marks”) and Article 7 (“Miscellaneous”) will survive termination of
this Agreement regardless of the reason for such termination.


 


7.3           Governing Law; Venue. This Agreement
shall be construed and interpreted according to the internal laws of the State
of Delaware (the “State”), excluding any choice of law rules that may direct
the application of laws of a jurisdiction other than the State. The federal and
state courts within the State shall have exclusive jurisdiction to adjudicate
any dispute arising out the Agreement. All Parties expressly consent to the
personal jurisdiction of the federal and state courts within the State and
service of process being effected upon them by registered or certified mail
sent to the addresses in Section 7.9.


 


7.4           Specific Performance and Injunctive
Relief. Given the critical importance of the Licensed Marks and Proprietary
Designs to Gateway’s business, MPC acknowledges and agrees that irreparable
harm will result if MPC were to breach the covenants made in connection with
the licenses granted to MPC under this Agreement. MPC agrees that Gateway may
seek injunctive relief and/or specific performance to enforce these covenants,
in addition to any other relief to which Gateway may be entitled.


 


7.5           Prevailing Party’s Attorneys’ Fees. The
prevailing party in any action to enforce this Agreement will be entitled to
recover its attorneys’ fees and costs in connection with such action.


 


7.6           Assignment. MPC may not assign this
Agreement (whether by operation of law or otherwise) without the prior written
consent of Gateway. Any assignment, without the prior written consent of
Gateway, will be null and void. This Agreement will bind and inure to the
benefit of the parties hereto and their successors and assigns.


 


7.7           Severance. Whenever possible, each
provision of this Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement is held
to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.


 


7.8           Independent Contractor. In fulfilling
its obligations under this Agreement, each Party will be acting as an
independent contractor. This Agreement does not make either party the employee,
agent or legal representative of the other.


 


7.9           Notice. All notices, requests,
demands and other communications hereunder shall be given in writing and:  (a) personally delivered; (b) sent by
telecopier, facsimile transmission or other electronic means of transmitting
written documents; or (c) 


 


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sent to the
parties at their respective addresses indicated herein by registered or
certified U.S. mail, return receipt requested and postage prepaid, or by
private overnight mail courier service. The respective addresses to be used for
all such notices, demands or requests are as follows:


 


As to Gateway:


 


Gateway, Inc.


Attn: 
Chief Financial Officer


7565 Irvine Center Drive


Irvine, CA 
92618


Facsimile: 
(949) 471-7014


 


with a copy to:


 


Mischa Travers


Davis Polk & Wardwell


1600 El Camino Real


Menlo Park, CA 94025


Facsimile: 
(650) 752-2111


 


or to such other person or address as Gateway shall furnish in writing.


 


As to MPC:


 


MPC Corporation


906 East Karcher Road


Nampa, Idaho 
83687


Attention: 
Chief Financial Officer


Facsimile: 
(208) 893-7218


 


with a copy to:


 


Brian T. Hansen


Holland & Hart LLP


101 S. Capitol Blvd., Suite 1400


Boise, ID 
83702


Facsimile: 
(208) 343-8869


 


or to such other person or address as MPC shall furnish in writing.


 


If personally delivered, such communication
shall be deemed delivered upon actual receipt; if electronically transmitted
pursuant to this paragraph, such communication shall be deemed delivered the
next business day after transmission (and sender shall bear the burden of proof
of delivery); if sent by overnight courier pursuant to this paragraph, such
communication shall be deemed delivered upon receipt; and if sent by U.S. mail
pursuant to this paragraph, such communication shall be deemed delivered 


 


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as of the date
of delivery indicated on the receipt issued by the relevant postal service, or,
if the addressee fails or refuses to accept delivery, as of the date of such
failure or refusal. Any Party may change its address for the purposes of notice
by giving notice of the change in accordance with this Section 7.9.


 


7.10         Entire Agreement. This Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof, superseding all previous agreements, proposals, representations,
or understandings, whether oral or written. No delay or failure by either party
to exercise any right or remedy hereunder will be held to constitute a waiver
of such right or remedy. Modifications of this Agreement must be in writing and
signed by an authorized representative of both parties.


 


7.11         Headings. The headings in this
Agreement are inserted for convenience only and shall not constitute a part
hereof.


 


7.12         Counterparts; Electronic Signatures. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Signatures delivered by facsimile transmission or e-mail
transmission of an Adobe® file format document (also known as a PDF file) by
and on behalf of any party shall be fully effective and shall be deemed to be
original signatures delivered in person. Any party delivering an executed
counterpart of this Agreement within five (5) business days, but the failure to
do so shall not affect the validity, enforceability, and binding effect of this
Agreement.


 


12

















 


IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the Effective Date.


 


 


	
  GATEWAY, INC.

  	
  MPC CORPORATION

  	
   

  
	
  (“Licensor”)

  	
  (“Licensee”)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ John Goldsberry

  	
   

  	
  By: 

  	
  /s/ Curtis Akey

  	
   

  	
   

  
	
   

  	
  Name: John Goldsberry 

  	
  Name: 

  	
  Curtis Akey 

  	
   

  
	
   

  	
  Title: SVP & CFO

  	
  Title: 

  	
  Chief Financial Officer, Secretary

  	
   

  
								



 


[Signature Page to Limited License of Gateway’s
Rights]


 

















 


ATTACHMENT A


 


Subject to the provisions of the Limited License of Gateway’s Rights,
Buyer’s license to use Seller’s trademarks shall extend to the following:


 


(1)        The word mark GATEWAY (United
States Patent and Trademark Office Registration No. 2494636; Canadian
Intellectual Property Office Registration No. TMA564454).


 


(2)         Any and of all Seller’s
trademarks, both registered and unregistered, enforceable against third parties
in the United States and Canada, but only to the extent necessary for Buyer to
use the following on Products:


 





 





 





 





 


(3)          Any and all of Seller’s trademarks, both
registered and unregistered, enforceable against third parties in the United
States and Canada, but only to the extent necessary for Buyer to sell Products
in cow-spotted boxes substantially similar to the boxes used by Seller on the
Effective Date.


 

















 


ATTACHMENT B


 


	
  Servers

  	
   

  	
  Codename

  	
   

  	
  Description

  
	
  E-9422R

  	
   

  	
  Mako
  1

  	
   

  	
  1U
  AMD 2P DC/QC Rack Server

  
	
  E-9425R

  	
   

  	
  Mako
  2

  	
   

  	
  1U
  Intel 2P DC/QC Rack Server

  
	
  E-9522R

  	
   

  	
  Hammerhead
  1

  	
   

  	
  2U
  AMD 2P DC/QC Rack Server

  
	
  E-9525R

  	
   

  	
  Hammerhead
  2

  	
   

  	
  2U
  Intel 2P DC/QC Rack Server

  
	
  E-9722R

  	
   

  	
  Orca

  	
   

  	
  3U
  AMD 4P DC/QC Rack Server

  
	
  E-9232T

  	
   

  	
  Bobcat

  	
   

  	
  AMD
  1P / DC Tower Server

  
	
  E-9520T

  	
   

  	
  Cougar

  	
   

  	
  5U
  Convertible Intel 2P DC/QC Tower Server

  
	
  E-9415R

  	
   

  	
   

  	
   

  	
   

  
	
  E-9510T

  	
   

  	
   

  	
   

  	
   

  
	
  E-9515R

  	
   

  	
   

  	
   

  	
   

  
	
  9715

  	
   

  	
   

  	
   

  	
   

  



 


	
  Storage

  	
   

  	
  Codename

  	
   

  	
  Description

  
	
  E-842R

  	
   

  	
   

  	
   

  	
  2U
  SAS/SATA II SAN, 12 Drives, 6TB SATA

  
	
  E-826R

  	
   

  	
   

  	
   

  	
  2U
  LTO-3 SuperLoader 16 Tape - 12.8TB Max

  
	
  E0824R

  	
   

  	
   

  	
   

  	
  2U
  DLT-V4 SuperLoader 16 Tape 4.8TB

  



 


	
  Notebooks

  	
   

  	
  Codename

  	
   

  	
  Description

  
	
  E-100M

  	
   

  	
  Cyclops

  	
   

  	
  12.1"
  Ultraportable

  
	
  E-155C

  	
   

  	
  Phoenix

  	
   

  	
  12.1"
  Ultraportable Convertible

  
	
  M-285-E

  	
   

  	
  Viper

  	
   

  	
  14.1"
  Convertible

  
	
  E-295C

  	
   

  	
  Viper
  SR

  	
   

  	
  14.1"
  Convertible

  
	
  M-255

  	
   

  	
   

  	
   

  	
  14.1"
  Notebook

  
	
  E-265M

  	
   

  	
  Orion

  	
   

  	
  14.1"
  Notebook

  
	
  M465-E

  	
   

  	
  Mystique

  	
   

  	
  15.4"
  Notebook

  
	
  E-475M

  	
   

  	
  Phantom

  	
   

  	
  15.4"
  Notebook

  
	
  M685-E

  	
   

  	
  Sonic

  	
   

  	
  17"
  Notebook

  



 

















 


	
  Desktop

  	
   

  	
  Codename

  	
   

  	
  Description

  
	
  Profile
  6

  	
   

  	
   

  	
   

  	
  All-in-one
  Serviceable LCD PC

  
	
  E-1500

  	
   

  	
   

  	
   

  	
  Entry
  Bid Box - uATX 6-bay

  
	
  E-2600

  	
   

  	
   

  	
   

  	
  3-Bay
  uBTX & 6-Bay uBTX

  
	
   

  	
   

  	
   

  	
   

  	
  3-Bay
  nBTX 11 Liter, 3-Bay uBTX & 6-Bay

  
	
  E-2610

  	
   

  	
   

  	
   

  	
  uBTX

  
	
  E-4610

  	
   

  	
   

  	
   

  	
  3-Bay
  uBTX & 6-Bay uBTX

  
	
  E-6610

  	
   

  	
   

  	
   

  	
  7-Bay
  BTX / i975X Performance Desktop

  
	
  E-4610D

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E-4610S

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E-6610D

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E-6610Q

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E-2610D

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E2610S

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  E2610N

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  
	
  Profile
  6

  	
   

  	
   

  	
   

  	
  Energy
  Pro

  



 


	
  Monitors

  	
   

  	
   

  
	
  15
  sq

  	
   

  	
  FPD1565

  
	
  17
  sq

  	
   

  	
  FPD1760/65

  
	
  17
  sq premium

  	
   

  	
  FPD1785

  
	
  17W

  	
   

  	
  FPD1775W

  
	
  19
  sq

  	
   

  	
  FPD1965

  
	
  19
  sq premium

  	
   

  	
  FPD1985

  
	
  19W

  	
   

  	
  FPD1975W

  
	
  21W

  	
   

  	
  FPD2185W

  
	
  22W

  	
   

  	
  FPD2275W
  TN

  
	
  22W

  	
   

  	
  HD2200

  
	
  22W

  	
   

  	
  HD2200E

  
	
  24W

  	
   

  	
  FPD2485W
  PVA

  
	
  24W
  TN

  	
   

  	
  FHD2400

  



 


Gateway
Flat Panel Display Height Adjustable


Stand
w/4 port 2.0 USB


Gateway
USB Monitor Speaker Bar for


Gateway
LCD Monitors


 

















 


ATTACHMENT C


 


 


	
  Notebooks

  	
   

  	
  Codename

  	
   

  	
  Description

  
	
  E-155C

  	
   

  	
  Phoenix

  	
   

  	
  12.1"
  Ultraportable Convertible

  
	
  E-295C

  	
   

  	
  Viper
  SR

  	
   

  	
  14.1"
  Convertible

  
	
  M685-E

  	
   

  	
  Sonic

  	
   

  	
  17"
  Notebook

  



 

















 


ATTACHMENT D


 

















 


ATTACHMENT E