**Exhibit 10.13**

 

**LIMITED LICENSE OF GATEWAY’S RIGHTS**

 

This Limited License of Gateway’s Rights (“Agreement”) is entered into effectiveas 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 “ProfessionalDivision” and that portion of its consumer direct division that providesbusiness-related products, is engaged in the manufacture, assembly, sale,resale and marketing of desktop computer systems, laptops, servers, networkinggear and other peripherals, and replacement parts with respect thereto, and theprovision of technical services to small to medium-sized businesses(collectively, the “Business”);

 

B.            Gateway and MPC haveentered into an Asset Purchase Agreement dated as of  September 4, 2007 (the “Asset Purchase Agreement”) pursuant towhich MPC has agreed, among other things, to purchase from Gateway certainassets and liabilities (the “Purchased Assets and Liabilities”) associated withthe Business; and

 

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

 

**Agreement**

 

In consideration of the foregoing and therespective representations, warranties, covenants, agreements and conditions hereinafterset forth and in the Asset Purchase Agreement, and intending to be legallybound hereby, the Parties hereto agree as follows:

 

**1.****             Definitions**

 

1.1           “LicensedMark” means any registered or unregistered trademark, brand or logoreferenced in Attachment A.

 

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

 

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

 

1.4           “ProprietaryDesigns” mean the form, structure, features and appearance of anyLicensed Products and the plans, drawings, sketches and other designinformation necessary to manufacture and assemble the Licensed Products. ProprietaryDesigns are limited to the extent of Gateway’s proprietary interest.

 

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

 

1.6           “Strategic Acquisition of MPC” has themeaning 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.****             LimitedLicense to Gateway’s Trademarks**

 

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

 

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

 

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

 

2.3.1        MPC will not use the Licensed Marks on newProduct models or versions that were not sold by Gateway on or before theEffective Date, unless Gateway agrees in writing to allow the use. Thisrestriction shall not prevent MPC from using the Licensed Marks onconfigure-to-order Products.

 

2.3.2        MPC may use the Licensed Marks only as theyhave been previously used by Gateway, unless Gateway agrees in writing to allowa different use.

 

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

 

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Mark on thatproduct when sold by Gateway, unless Gateway agrees in writing to allow adifferent look or placement.

 

2.3.4        Any and all uses by MPC of the Licensed Markson all Licensed Products shall be in accordance with Gateway’s trademark useguidelines. 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 theLicensed Marks or revise Gateway trademark use guidelines by sending MPC noticethereof. Such marks and guidelines shall become effective, and shall be adheredto 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-spottedboxes substantially similar to the boxes used by Gateway on the Effective Date.MPC shall not alter the appearance of these boxes, unless Gateway agrees inwriting to allow a different appearance. MPC shall only ship Gateway-brandedProduct in these boxes.

 

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

 

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

 

2.6           No Damage or Dilution. MPC agreesthat it will not use the Licensed Marks in any way that would damage or dilutethe value of, or the reputation associated with, the Licensed Marks. MPCunderstands and acknowledges that the failure to sell quality Gateway-brandedProduct or to provide quality warranty support to the customers of the Businessthat is equivalent to or better than the warranty support provided by Gatewayto its customers immediately prior to the Effective Date will damage and dilutethe value of, or reputation associated with, the Licensed Marks and willentitle Gateway to immediately seek injunctive relief under Section 7.4.

 

2.6.1        MPC shall undertake such steps as Licensor maydeem reasonable to assist Gateway in monitoring the quality of the LicensedProducts provided by Licensee under the Licensed Marks. Licensee shall permitreasonable inspection of Licensee’s operations and supply Licensor withspecimens of use of the Licensed Marks upon request. Gateway has the right totake all reasonable actions that it deems necessary to ensure that Licensee’sactivities under this Agreement and uses of the Licensed Marks are consistentwith the reputation for 

 

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quality andprestige of Products bearing the Licensed Marks which were sold by Gateway onor before the Effective Date.

 

2.7           Advertising. MPC shall not use theLicensed Marks in any advertising, except for the limited purpose of announcingthat MPC has acquired the Purchased Assets and Liabilites. Any advertising doneconsistent with this Section 2.7 shall occur no sooner than the Effective Dateand shall terminate no later than 90 days after the Effective Date. The use ofthe Licensed Marks for this limited purpose shall be consistent with Gateway’sbrand guidelines and subject to Gateway’s approval. Before any advertising campaignis launched using a Licensed Mark, MPC shall make samples and other informationavailable to facilitate Gateway’s review and approval. Gateway shall have theright to make reasonable objections to the advertising on the grounds the useis inconsistent with Gateway’s brand guidelines, will damage or dilute thevalue of, or reputation associated with, the Licensed Marks or is inconsistentwith the purpose of this Agreement. Gateway shall not unreasonably withholdapproval and shall exercise its approval rights in good faith.

 

2.8           Interest in Licensed Marks. MPCacknowledges that it has no interest in the Licensed Marks other than thelimited license granted under this Agreement and that Gateway will remain thesole and exclusive owner of all right, title and interest in and to theLicensed Marks. MPC agrees that Licensee’s use of the Licensed Marks and anygoodwill associated in the Licensed Marks resulting from Licensee’s use willinure solely to the benefit of Gateway and will not create any right, title orinterest of Licensee in the Licensed Marks. If MPC uses, registers or appliesto register any mark in violation of its obligations under this Agreement, MPCagrees, upon Licensor’s request, immediately to cease the use of that mark andto assign to Gateway all Licensee’s rights in that mark, including anyapplication or registration for that mark.

 

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

 

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

 

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2.9           Representations Regarding WarrantySupport. MPC shall inform customers purchasing Gateway-branded Productsfrom MPC that MPC, not Gateway, will be providing all customer service andsupport, including technical and warranty support (“Customer Support”). MPC shallnot represent or imply that Gateway will provide or will be in any wayresponsible for Customer Support to MPC customers purchasing Gateway-brandedProducts from MPC. Any information on the outside of, on packaging for, orwithin the software loaded on any Gateway-branded Product sold by MPC shallspecifically state that Gateway is not to be contacted for Customer Support, ineach case no later than the date that is (i) two weeks after the EffectiveDate, in the case of written materials, documentation and information containedon the outside of or on packaging for any Gateway-branded Product sold by MPCand (ii) four weeks after the Effective Date, in the case of information withinthe software loaded on any Gateway-branded Product sold by MPC.

 

2.10         Disposal of Gateway-Branded Products. Withrespect to the disposal of Gateway-branded Products, MPC agrees to comply withall applicable environmental laws. MPC accepts full responsibility for, andagrees to pay, any fees, charges, taxes, penalties, fines or other costsincurred as the result of the disposal of Gateway-branded Products (“EnvironmentalFees”) sold by MPC. If Gateway pays Environmental Fees for which MPC is inwhole or in part responsible, then MPC shall pay Gateway for its shareimmediately, but in no case later than 30 days after written notice fromGateway. In circumstances in which there is a dispute whether MPC or Gateway isresponsible for all or any portion of an Environmental Fee, the parties agreeto negotiate a resolution of the dispute in good faith.

 

2.11         IP License Fees and Royalties. Inlicensing MPC to use the Licensed Marks on Licensed Products, Gateway is notthereby agreeing to pay or become responsible for license fees and royaltiesfor which MPC is or may become liable in manufacturing, importing or sellingLicensed Products. MPC agrees that it shall be responsible for any and alllicense fees and royalties for which MPC may become liable.

 

**3.****             LimitedLicense to Gateway’s Product Designs and Shared Tooling**

 

3.1           License to Proprietary Designs and SharedTooling. Subject to the terms and conditions of this Agreement, including,without limitation, the provisions of this Article 3, Gateway hereby grants toMPC, 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 Designsand the Shared Tooling.

 

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

 

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3.3           Modification of Shared Tooling. MPCshall not modify or seek to modify the Shared Tooling without first obtainingGateway’s written consent. Gateway may in good faith reject any proposedmodification, including, but not limited to, modifications that may causepotential disruption to Gateway’s business.

 

3.4           Capacity Constraints. CertainProducts for which Shared Tooling will be used (“Shared Products”) areavailable from suppliers in limited quantities and may be subject to capacityconstraints. If, at any time, Gateway’s and MPC’s combined demand for a SharedProduct exceeds the amount available from the supplier, then the supply of thatShared Product will be allocated eighty percent (80%) to Gateway and twentypercent (20%) to MPC (“Allocated Percentages”). However, if a Party’s demandfor the Shared Product is less than its Allocated Percentage, then thedifference between its demand and its Allocated Percentage shall go to theother Party.

 

3.5           Interest in Proprietary Designs andShared Tooling. MPC acknowledges that it has no interest in the ProprietaryDesigns and Shared Tooling, other than the limited license granted under thisAgreement and that Gateway will remain the sole and exclusive owner of allright, title and interest in and to the Proprietary Designs and the SharedTooling. MPC will use commercially-reasonable efforts to protect Gateway’sproprietary interests and intellectual property rights in the ProprietaryDesigns and Shared Tooling.

 

3.6           ClaimsArising from Use of Proprietary Designs and Shared Tooling. MPCacknowledges and understands that Gateway assumes no liability, risk or costsarising from or associated with MPC’s use of the Proprietary Designs or SharedTooling, including, but not limited to, the risk that the Proprietary Designsor Shared Tooling or the Products assembled or manufactured therefrom, infringethe patents of a third party, are defective or are lacking in quality orperformance. Gateway shall not be liable to MPC for any claim for damagesarising from or associated with MPC’s use of the Proprietary Designs or SharedTooling, including, but not limited to, claims for indemnification or claimsfor general, special, incidental or consequential damages.

 

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

 

**4.****            ****Limited Assignment of PatentLicenses**

 

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

 

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termination of the license granted to Gatewayunder the Active English Agreement or in the event of a StrategicAcquisition of MPC, and at suchtime all rights, if any, that MPC receives from this limited assignment shallrevert to Gateway.

 

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

 

4.3           Compression Labs. To the extent permitted by Article 9 of thePatent License and Settlement Agreement among Forgent Networks, Inc. and itswholly-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 productline,” Gateway grants MPC a limited assignment of the license granted under theCompression Labs Agreement to make, use, sell, import or offer for saleLicensed Products under this Agreement.  The limited assignment grantshall survive termination of this Agreement and shall expire upon the earlierof the termination of the license granted to Gateway under the Compression LabsAgreement or in the event of a Strategic Acquisition of MPC, and at such time all rights, if any, that MPCreceives from this limited assignment shall revert to Gateway.

 

**5.****             Representationsand Warranties**

 

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

 

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

 

5.1.2        Gateway has the requisite corporate power andauthority to enter into this Agreement and to consummate the transactionscontemplated thereby.

 

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

 

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

 

5.2.2        MPC has the requisite corporate power andauthority to enter into this Agreement and to consummate the transactionscontemplated thereby.

 

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**6.****             Termand Termination**

 

6.1           Term. Subject to Sections 6.1.1 and6.1.2, this Agreement is effective as of the Effective Date and shall continuein full force and effect for a term of five (5) years from the Effective Date,unless earlier terminated or otherwise limited in accordance with theprovisions of this Article 6 (the “Term”).

 

6.1.1        Terminationof License to Use Licensed Marks. Subject to Section 6.1.2, the license touse the Licensed Marks granted in Article 2 shall terminate one (1) year afterthe Effective Date.

 

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

 

6.2           Termination of the Asset PurchaseAgreement. If the Asset Purchase Agreement is terminated, then thisAgreement shall terminate automatically, unless otherwise agreed by the Partiesin writing.

 

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

 

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

 

6.5           Cease Use of Licensed Marks. In theevent 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 willterminate automatically. In any case, MPC’s use of the Licensed Marks shallcease no later than one (1) year after the Effective Date. In the event MPCceases to use, with the intent not to resume, the Proprietary Designs, then thelicense granted under this Agreement to use the Proprietary Designs willterminate automatically.

 

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

 

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MPC” shallmean an acquisition of MPC by a third party, unless such third party is aFinancial Buyer.  An acquisition of MPC shall be deemed to occur upon anyof (a) a merger, consolidation or other reorganization to which MPC is a partyif the individuals and entities who were stockholders of MPC immediately priorto the effective date of such merger, consolidation or other reorganizationhave “beneficial ownership” (as defined in Rule 13d-3 under the Securities andExchange Act of 1934) of less than fifty percent (50%) of the total combinedvoting power for the election of directors (or their equivalent) of thesurviving entity following such effective date, (b) the acquisition by anyentity or group of direct or indirect “beneficial ownership” in the aggregateof 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 orsubstantially all of the assets of MPC, (d) the liquidation of MPC, or (e) achange in the composition of a majority of MPC’s board of directors followingan 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 meana private equity fund, hedge fund, pooled investment vehicle or similar personor entity that is primarily engaged in investment activities as opposed todirect or indirect operations of a commercial nature.

 

6.7           Effect of Termination. In the eventof the termination of this Agreement or the Asset Purchase Agreement, MPC shalldiscontinue immediately any and all uses of the Licensed Marks or theProprietary Designs.

 

7**.****             Miscellaneous**

 

7.1           Confidentiality. Each Party agreesnot to disclose any term or condition of this Agreement to any third partywithout the prior written consent of the other Party. This obligation issubject to the following exceptions:

 

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

 

7.1.2        Disclosure is permissible if otherwise requiredby law;

 

7.1.3        Disclosure is permissible if required toenforce rights under this Agreement;

 

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

 

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

 

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

 

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

 

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

 

7.4           Specific Performance and InjunctiveRelief. Given the critical importance of the Licensed Marks and ProprietaryDesigns to Gateway’s business, MPC acknowledges and agrees that irreparableharm will result if MPC were to breach the covenants made in connection withthe licenses granted to MPC under this Agreement. MPC agrees that Gateway mayseek 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. Theprevailing party in any action to enforce this Agreement will be entitled torecover its attorneys’ fees and costs in connection with such action.

 

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

 

7.7           Severance. Whenever possible, eachprovision of this Agreement will be interpreted in such manner as to be effectiveand valid under applicable law, but if any provision of this Agreement is heldto be prohibited by or invalid under applicable law, such provision will beineffective only to the extent of such prohibition or invalidity, withoutinvalidating the remainder of such provisions or the remaining provisions ofthis Agreement.

 

7.8           Independent Contractor. In fulfillingits obligations under this Agreement, each Party will be acting as anindependent 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 bytelecopier, facsimile transmission or other electronic means of transmittingwritten documents; or (c) 

 

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sent to theparties at their respective addresses indicated herein by registered orcertified U.S. mail, return receipt requested and postage prepaid, or byprivate overnight mail courier service. The respective addresses to be used forall 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 communicationshall be deemed delivered upon actual receipt; if electronically transmittedpursuant to this paragraph, such communication shall be deemed delivered thenext business day after transmission (and sender shall bear the burden of proofof delivery); if sent by overnight courier pursuant to this paragraph, suchcommunication shall be deemed delivered upon receipt; and if sent by U.S. mailpursuant to this paragraph, such communication shall be deemed delivered 

 

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as of the dateof 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 suchfailure or refusal. Any Party may change its address for the purposes of noticeby giving notice of the change in accordance with this Section 7.9.

 

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

 

7.11         Headings. The headings in thisAgreement are inserted for convenience only and shall not constitute a parthereof.

 

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

 

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**IN WITNESS WHEREOF**, the Parties have executedthis 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’sRights]*

 

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**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 (UnitedStates Patent and Trademark Office Registration No. 2494636; CanadianIntellectual Property Office Registration No. TMA564454).

 

(2)         Any and of all Seller’strademarks, both registered and unregistered, enforceable against third partiesin the United States and Canada, but only to the extent necessary for Buyer touse the following on Products:

 

 

 

 

 

(3)          Any and all of Seller’s trademarks, bothregistered and unregistered, enforceable against third parties in the UnitedStates and Canada, but only to the extent necessary for Buyer to sell Productsin cow-spotted boxes substantially similar to the boxes used by Seller on theEffective Date.

 

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**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       |

 

GatewayFlat Panel Display Height Adjustable

Standw/4 port 2.0 USB

GatewayUSB Monitor Speaker Bar for

GatewayLCD 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                    |

 

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**ATTACHMENT D**

 

----

 

**ATTACHMENT E**

 

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