Exhibit 10.27


 


PATENT AND TECHNOLOGY LICENSE AGREEMENT


 


This
TECHNOLOGY AND PATENT LICENSE AGREEMENT (this “Agreement”) is made and
entered into as of the Closing Date (as defined below) by and among Analog
Devices, Inc., a Massachusetts corporation (“Licensor”), and
Ikanos Communications, Inc. a Delaware corporation (“Licensee”).


 


W I T N E S S E T H:


 


WHEREAS,
Licensor owns or is licensed to certain valuable assets and technology related
to the Acquired Business (as defined below), which include integrated circuit
products, software, customer lists, technical expertise, patents, mask works
and other intellectual property and assets;


 


WHEREAS,
Licensor and its Affiliates are, as of the Closing Date, assigning to Licensee
all of Licensor’s and such Affiliates’ respective right, title and interest in
certain assets owned by them relating exclusively
to the Acquired Business as set forth in the Asset Purchase Agreement (the “Acquired Assets”).


 


WHEREAS, in
connection with Licensee’s purchase of the Acquired Assets, Licensor desires to
license to Licensee, and Licensee desires to obtain, certain additional
Intellectual Property Rights (as defined below) related to the Acquired
Business on the terms described in this Agreement; and


 


NOW,
THEREFORE, in consideration of the covenants, representations, warranties and
mutual agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:


 


1.                                      Definitions.  Capitalized
terms not otherwise defined have that meaning given in the Asset Purchase
Agreement.


 


“Affiliate” has that meaning given in the Asset
Purchase Agreement.


 


“Asset Purchase
Agreement” means
that certain Asset Purchase Agreement entered into by the parties to this
Agreement dated January 12, 2006.


 


“Closing Date” means “Closing Date”, as defined in the
Asset Purchase Agreement.


 


“Control” means
with respect to a Patent or technology, possession of the right, whether
arising by ownership, license or otherwise, to grant the license, right or
authorization to Licensee provided for in this Agreement without violating the
terms of any written agreement between Licensor and any third party.


 


“Deliverables”
means the items and materials described on Appendix B.


 


“Intellectual
Property Rights” has that meaning given in the Asset Purchase Agreement.


 


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“Licensed Patents” means the Patents that are listed in Appendix
A.


 


“Licensed IP” means
the Licensed Patents and Other IP.


 


“Licensee Exclusive
Field of Use” means
the use, reproduction, development (including but not limited to design and
modification), manufacture (itself or through third parties), license, import,
offer for sale, sale or other distribution (direct or indirect) of the Products
or any other integrated circuits for wired communications which are: wired DSL
solutions and/or broadband network processors and/or routers which have a
primary purpose of providing network processing and/or routing.


 


“Licensee
Nonexclusive Field of Use” means the use, reproduction, development
(including but not limited to design and modification), manufacture (itself or
through third parties), license, import, offer for sale, sale or other
distribution (direct or indirect) of the Licensed AFEs.


 


“Other IP” means the Intellectual Property Rights
(other than Licensed Patents and any Trademarks) Controlled by Licensor that
would be infringed by the operation of the Acquired Business as currently
conducted on the Closing Date or as conducted following Closing Date if
conducted in substantially the same manner, including, without limitation, the
design, development, reproduction, distribution, marketing, manufacture, use,
import and sale or license of the Products (including Products under
development as of Closing Date).


 


“Patents”
means “Patents” as defined in the Asset Purchase Agreement.


 


“Products” has that meaning given in the Asset
Purchase Agreement, and all predecessors, updates, upgrades, improvements and
substitutions thereto.  For the avoidance
of doubt Products shall also include analog front end products and materials
described in Appendix B (the “Licensed AFEs”).


 


“Trademarks”
means “Trademarks” as defined in the Asset Purchase Agreement.


 


2.                                      Grant of Rights


 


2.01                           Patent
License Grant.  Licensor hereby
grants to Licensee a royalty-free (except as provided below), fully-paid,
world-wide, perpetual, irrevocable, non-terminable, transferable (subject to Section 5.05)
right and license, with the right to grant and authorize sublicenses, under the
Licensed Patents to conduct and exploit the Acquired Business in the Licensee
Exclusive Field of Use and the Licensee Nonexclusive Field of Use, to make,
have made, use, import,
offer for sale, sell and otherwise exploit Products in the
Licensee Exclusive Field of Use and the Licensee Nonexclusive Field of
Use.  Such license shall continue until
expiration, revocation, invalidation or abandonment of the last Patent within
the Licensed Patents. The foregoing license shall be exclusive in the Licensee
Exclusive Field of Use (other than Licensed AFEs) and nonexclusive in the
Licensee Nonexclusive Field of Use, including for Licensed AFEs.


 


2.02                           Other
IP.  Licensor hereby grants to
Licensee a royalty-free (except as provided below), fully-paid, world-wide,
perpetual, irrevocable, non-terminable, transferable (subject to 


 


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Section 5.05)
right and license, with the right to grant and authorize sublicenses, under the
Other IP to conduct and exploit the Acquired Business in the Licensee Exclusive
Field of Use and the Licensee Nonexclusive Field of Use, to use, reproduce in
whole or in part, modify, create derivative works of design, develop, manufacture,
reproduce, support, market, sell, license and /or lease Products in the
Licensee Exclusive Field of Use and the Licensee Nonexclusive Field of
Use.   The foregoing license shall be
exclusive in the Licensee Exclusive Field of Use (other than Licensed AFEs) and
nonexclusive in the Licensee Nonexclusive Field of Use, including for Licensed
AFEs.


 


2.03                           Sublicense.  Licensee’s rights and licenses granted under
this Agreement include the right to grant multiple sublicenses of Other IP and
Licensed Patents in the Licensee Exclusive Field of Use to Licensee’s
Affiliates, customers, distributors and sublicensees, including the right to
grant sublicensees the right to grant sublicenses of Other IP and Licensed
Patents in the Licensee Exclusive Field of Use, within the scope of the
licenses granted above, and provided that such sublicensees are subject to Section 2.07.  Licensee’s rights and licenses granted under
this Agreement include the right to grant multiple sublicenses of Licensed  Patents and Other IP in the Licensee
Non-Exclusive Field of Use in connection with the distribution of Products,
within the scope of the licenses granted above, and provided that such
sublicensees are subject to Section 2.07.


 


2.04                           Exclusivity
Covenant.  Licensor agrees not to exercise,
authorize or assist any third parties to exercise, any of the exclusive rights
granted to Licensee under Sections 2.01 and 2.02.  Notwithstanding anything to the contrary
herein (but subject to Article IX of the Asset Purchase Agreement), (1) Licensor
shall have the right to grant licenses to the Licensed Patents, as part of a
cross license of all or substantially all of Licensor’s and its Affiliates’
Patents in substantially all fields of use; and (2) Licensor shall have
the right to make, have made and use individual stand alone components (e.g.
converters, analog front ends, digital signal processors, mixed signal
components) and bundles thereof that do not substantially comprise a product in
the Licensee Exclusive Field of Use, and may offer to sell, sell, and import
such components and bundles thereof to third parties.


 


2.05                           Consideration.  In consideration for Licensor’s grant of
rights as set forth in this Section 2 (other than the sublicense granted
in Section 2.06), Licensee shall pay Licensor the amounts as set forth in
the Asset Purchase Agreement.  In
addition but subject to the terms of the Asset Purchase Agreement, in the event
that any agreement between Licensor and a third party requires the payment of
any royalties or other amounts for the exploitation of a license to any
Licensed Patents or Other IP (“Third Party Agreement(s)”), Licensee shall pay
the amounts specified in such Third Party Agreement to Licensor in the manner
specified in such Third Party Agreement but only if Licensor provides Licensee
with accurate and complete copies of Third Party Agreements prior to or on the
Effective Date of this Agreement.  In the
event Licensor fails to comply with the obligations of Section 2.05,
Licensee shall have no such obligations to pay for third party Licensed Patents
or Other IP, and Licensor shall bear all such costs.


 


2.06                           Limitation.  Notwithstanding the foregoing, and subject to
the payment of the fees set forth below, Licensor’s grant above includes
sublicensed rights from Licensor under its Agreement with Qualcore (formerly
Virtual IP Group, Inc.) dated July 31, 2002 (“Qualcore
Agreement”) to use, reproduce, copy, modify, enhance and prepare
derivative works of all 


 


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designs,
inventions, know-how, methods, processes, techniques and solutions embodied in
the M2181 RTL Core hardware description language code or structure of the
synthesizable M2181 RTL Core developed by Qualcore and to distribute such
M2181RTL Core in connection with the manufacture of  those Products that are shipped by Licensor
in the Acquired Business as of the Closing Date.  In the event that Licensee seeks to add
additional Products, Licensee shall have the right to obtain these additional
sublicense rights by paying Licensor fifty thousand dollars ($50,000) upon the
first tapeout of each such additional Product utilizing the M2181RTL Core.


 


2.07                           Confidentiality:


 


(a)                                  “Confidential
Information” means all nonpublic proprietary information and materials,
disclosed by one party (the “Disclosing Party”) to any other party  (the “Receiving Party”) (including by former
employees, consultants or contractors of Licensor) pursuant to this Agreement,
irrespective of the manner in which the Disclosing Party disclosed such information
and irrespective of whether such information is marked as confidential.


 


(b)                                 The
Receiving Party shall maintain Confidential Information obtained from a
Disclosing Party in confidence, and shall not disclose, divulge or otherwise
communicate such Confidential Information to third parties, or use it for any
purpose, except (1) as permitted under the licenses granted herein,
provided that the Receiving Party does not disclose Confidential Information of
the Disclosing Party that is not inherently disclosed by the use of any
Products, (2) as reasonably necessary to manufacturers and suppliers
subject to confidentiality obligations consistent with this Agreement to
exercise licenses granted hereunder, (3)  to Affiliates, or (4) to
consultants and contractors providing services to such Receiving Party subject
to confidentiality obligations consistent with this Agreement. The Receiving
Party shall exercise reasonable precautions to prevent the unauthorized
disclosure of such Confidential Information by its directors, officers,
employees, consultants, contractors, subcontractors, advisors or agents.  Receiving Party agrees that it shall use the
same degree of care and means that it uses to protect its own information of a
similar nature, but in any event not less than reasonable care and means, to
prevent the unauthorized use or the disclosure of such Confidential Information
to third parties.


 


(c)                                  The
provisions of this Section 2.07 shall not apply to any Confidential
Information disclosed hereunder that: (1) is lawfully disclosed to the
Receiving Party by a third party rightfully in possession of the Confidential
Information and under no confidentiality or fiduciary obligation not to make
disclosure; (2) was in the public domain at the time it was disclosed or later
becomes published or generally known to the public through no fault or omission
on the part of the Receiving Party; (3) is developed independently by or
for the Receiving Party without use of the Confidential Information of the
Disclosing Party; or (4) is disclosed after written approval of the
Disclosing Party.


 


(d)           Notwithstanding the obligations in
this Section 2.07, in the event that any Receiving Party is required to
disclose the Disclosing Party’s Confidential Information pursuant to applicable
law, such Receiving Party may disclose Confidential Information to the extent
that the Receiving Party is legally compelled to disclose such Confidential
Information; provided, however, that the
Receiving Party shall provide prompt written notice of such requirement to the
Disclosing Party so that the Disclosing Party may seek a protective order or
other remedy; and 


 


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provided,
further, that in the event that such protective order
or other remedy is not obtained prior to the time the Receiving Party is
legally compelled to disclose such Confidential Information, the Receiving
Party shall be permitted to furnish only that portion of such Confidential
Information that it is legally required to provide and the Receiving Party
shall exercise commercially reasonable efforts to obtain assurances that
confidential treatment shall be accorded such Confidential Information.


 


(e)                                  Each
Receiving Party shall notify the Disclosing Party promptly and in writing of
the circumstances surrounding any suspected unauthorized possession, use or
knowledge of the Other Party’s Confidential Information or any part thereof at
any location or by any person or entity other than those authorized by this
Agreement.


 


2.08                           Reservation
of Proprietary Interests.  Except as
provided in Sections 2.01, 2.02 and 2.03 above, Licensor retains Licensor’s
proprietary interests in and to the Licensed Patents and Other IP.  Except as provided in Section 2.09,
nothing herein shall be construed as granting Licensor, by implication,
estoppel or otherwise, any license or other right to any Intellectual Property
Rights of Licensee.


 


2.09                           Grant
Back License.  In the event that
Licensee or Licensor makes any updates, modifications or enhancements to the
Licensed AFEs (“AFE Mods”)
during the three year period following the Closing Date, each party hereby
grants to the other party a nonexclusive, worldwide, perpetual, irrevocable,
royalty-free, fully paid-up, non-terminable, transferable right and license,
under any and all of the Intellectual Property Rights in and to such AFE Mods
to make, have made, use, offer to sell, sell and import analog front end
products utilizing such AFE Mods, provided that Licensee’s rights to distribute
shall be subject to the license rights in the Licensee Nonexclusive Field of
Use granted under this Section 2. 
Notwithstanding the foregoing, each party acknowledges and agrees that
this Section 2.09 does not grant either party any right or license to use
an AFE Mod that is licensed to them under this Section 2.09 to initiate
the design or manufacture of an AFE product that is pin-compatible with an AFE
Mod of the licensing party that constitutes a modification of the pin layout of
a Licensed AFE.


 


2.10                           Delivery.   Licensor shall promptly deliver the
materials and items described on Appendix B to Licensee, including but
not limited to documentation, instructions, formulas, drawings, and
protocols.  Commencing on the Closing
Date and for a term of three years thereafter (unless extended upon the mutual
agreement of the parties), each party shall promptly notify the other party of
any AFE Mods, and shall upon the request of such other party promptly deliver
such AFE Mods to the requesting party.


 


3.                                      Representations and Warranties


 


3.01                           Licensor.  Licensor represents and warrants that it has
the right to grant the rights and licenses granted herein.  The parties acknowledge that additional
representations and warranties between the parties are provided under the Asset
Purchase Agreement.


 


3.02                           Disclaimer.  EXCEPT AS PROVIDED IN THIS ARTICLE 3,
NEITHER PARTY MAKES ANY WARRANTIES OR CONDITIONS (EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE) UNDER THIS AGREEMENT WITH RESPECT TO THE 


 


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SUBJECT MATTER
HEREOF, AND EXCEPT AS MAY BE PROVIDED IN THE ASSET PURCHASE AGREEMENT AND
OTHER ANCILLARY AGREEMENTS, EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS.


 


4.                                      Term and Termination.


 


The Term of
this Agreement shall commence on the Closing Date and shall be perpetual,
unless terminated upon the mutual agreement of both Parties in their sole
discretion.


 


5.                                      General Provisions


 


5.01                           Notices.


 


All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,


(a)          if to Licensor:


 


Analog Devices, Inc.

Three Technology Way

Norwood, MA  02062-9106

Attention:  General Counsel

Facsimile:  (781) 461-3491


 


with a copy to:


 


Wilmer Cutler
Pickering Hale and Dorr LLP

60 State Street 

Boston, MA  02109 

Attention:  Jeffrey A. Stein, Esq. 

Facsimile:  (617) 526-5000


 


(b)         if to Licensee:


 


Ikanos
Communications

47669 Fremont Blvd.,


Fremont, CA
94538


Attention:  Chief Financial Officer

Facsimile:  (510) 979-0500


 


with a copy to:


 


Wilson,
Sonsini, Goodrich & Rosati


650 Page Mill
Road


Palo Alto, CA
94304

Attention:  Jack Sheridan. Esq.

Facsimile: (650) 493-6811


 


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All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5:00 p.m. in the place of receipt and such day is a business day in the
place of receipt.  Otherwise, any such
notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.  In the case of facsimile transmissions,
receipt shall be evidenced by written confirmation that such facsimile was
successfully transmitted.


 


5.02                           Headings.  The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


5.03                           Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provision of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. 
Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally contemplated
to the greatest extent possible.


 


5.04                           Entire
Agreement.  This Agreement and the
Appendices hereto constitute the entire agreement between the parties hereto
and any of such parties’ respective Affiliates with respect to the subject
matter and supersedes all prior communications, agreements and understandings,
both oral and written, with respect to the subject matter of this
Agreement.  In the event any provision of
this Agreement becomes or is declared by a court of competent jurisdiction to
be illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision, and the parties agree to negotiate, in good
faith, a legal and enforceable substitute provision which most nearly effects
the parties’ intent in entering into this Agreement.


 


5.05                           Assignment.  This Agreement shall not be assigned by
Licensee without the prior written consent of the Licensor, provided, however, that Licensee
may assign this Agreement without consent in connection with the sale of all or
substantially all of the its assets related to this Agreement or merger,
reorganization or change of control of Licensee; and provided, further,  that the assignee
shall agree in writing to be bound by this Agreement.


 


5.06                           No
Third-Party Beneficiaries.  This
Agreement is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.


 


5.07                           Amendments
and Waivers.   Any provision of
this Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any or other further exercise
thereof or the exercise of any other right, 


 


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power or privilege.  The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.


 


5.08                           Governing
Law; Jurisdiction and Venue.  This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the Delaware.  Sections 12.11 and
12.12 of the Asset Purchase Agreement are hereby incorporated as if fully set
forth herein.


 


5.09                           Construction
of “Licensor”.  The term “Licensor”,
wherever used in this Agreement, shall be deemed to refer to each, any and/or
all of Analog Devices, Inc. and its subsidiaries and Affiliates except
where Licensee otherwise consents or unilaterally specifies in a written notice
to Licensor.  Collective references to
Licensor will be construed as if all such entities are a single entity, so
that, for example, verbs used therewith can be as if “Licensor” referred to a
single entity, even though it refers to multiple entities.


 


5.10                           Counterparts.  This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by the other
parties hereto.  No provision of this
Agreement is intended to confer upon any person or entity other than the
parties hereto any rights or remedies hereunder.


 


(Remainder of page intentionally left blank)


 


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IN WITNESS
WHEREOF, Licensor and Licensee have caused this Agreement to be executed as of
the Closing Date by their respective officers thereunto duly authorized.


 


 


	
  “LICENSOR”

  	
  “LICENSEE”

  
	
   

  	
   

  
	
  ANALOG DEVICES, INC.

  	
  IKANOS COMMUNICATIONS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ BRIAN P. MCALOON

  	
   

  	
  By:

  	
  /s/ DANIEL K. ATLER

  
	
   

  	
  Brian P. McAloon

  	
   

  	
  Daniel K. Atler

  
	
   

  	
  Executive Vice President

  	
   

  	
  Vice President and
  Chief Financial Officer

  
					



 


 


(Signature page to
Patent and Technology License Agreement)


 


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