exv10wn






Exhibit 10(n)




Execution Copy




COLLABORATION AND LICENSING AGREEMENT




Between



NEC Corporation



and



Stratus Technologies Bermuda Ltd.



November 25, 2005








					
	 	 	 	 	 
	NEC/Stratus JD 11/25/05
	 	 
	 	CONFIDENTIAL








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1.
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	AGREEMENT TERM	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	CONDUCT OF DEVELOPMENT PROGRAM	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	COMMERCIAL DEPLOYMENT	 	 	10	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	MANUFACTURING BY STRATUS	 	 	11	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	SUPPORT AND ENHANCEMENTS	 	 	12	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	LICENSE AND OWNERSHIP OF BACKGROUND PATENTS AND KNOW-HOW	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	OWNERSHIP OF FOREGROUND TECHNOLOGY	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 9.
	 	FOREGROUND PATENT AND KNOW-HOW LICENSES	 	 	14	 
	 
	 	 	 	 	 	 
	SECTION 10.
	 	SOFTWARE LICENSES	 	 	14	 
	 
	 	 	 	 	 	 
	SECTION 11.
	 	SUBLICENSING	 	 	16	 
	 
	 	 	 	 	 	 
	SECTION 12.
	 	THIRD PARTY RIGHTS	 	 	16	 
	 
	 	 	 	 	 	 
	SECTION 13.
	 	NO OTHER LICENSES	 	 	17	 
	 
	 	 	 	 	 	 
	SECTION 14.
	 	SUBCONTRACTING	 	 	17	 
	 
	 	 	 	 	 	 
	SECTION 15.
	 	PRIOR COLLABORATION AGREEMENT	 	 	17	 
	 
	 	 	 	 	 	 
	SECTION 16.
	 	MARKETING ACTIVITIES	 	 	18	 
	 
	 	 	 	 	 	 
	SECTION 17.
	 	TRADEMARKS AND BRANDING	 	 	18	 
	 
	 	 	 	 	 	 
	SECTION 18.
	 	CONFIDENTIALITY/NON DISCLOSURE PROVISIONS	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 19.
	 	WARRANTIES	 	 	20	 
	 
	 	 	 	 	 	 
	SECTION 20.
	 	INDEMNIFICATION	 	 	21	 
	 
	 	 	 	 	 	 
	SECTION 21.
	 	NOTICES	 	 	22	 
	 
	 	 	 	 	 	 
	SECTION 22.
	 	PUBLICITY	 	 	23	 








					
	 	 	 	 	 
	 
	 	i
	 	 








 









 





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 23.
	 	TERMINATION, BREACH AND REMEDIES	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 24.
	 	FORCE MAJEURE	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 25.
	 	EXPORT CONTROL LAWS	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 26.
	 	GOVERNING LAW	 	 	28	 
	 
	 	 	 	 	 	 
	SECTION 27.
	 	ARBITRATION AND COURT PROCEEDINGS	 	 	28	 
	 
	 	 	 	 	 	 
	SECTION 28.
	 	INDEPENDENT CONTRACTORS	 	 	28	 
	 
	 	 	 	 	 	 
	SECTION 29.
	 	TRANSFER OR ASSIGNMENT	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 30.
	 	PAYMENTS	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 31.
	 	TAXES	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 32.
	 	OEM ROYALTY PAYMENTS	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 33.
	 	COMPLIANCE WITH LAWS	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 34.
	 	NON-DISTURBANCE AGREEMENT	 	 	30	 
	 
	 	 	 	 	 	 
	SECTION 35.
	 	MISCELLANEOUS	 	 	30	 






Exhibits




	 	 	 

	Exhibit A

	 	Joint Product Overview
	 
	 	 
	Exhibit B

	 	Development Project Phases
	 
	 	 
	Exhibit C

	 	Party Development Responsibilities
	 
	 	 
	Exhibit D

	 	Joint Product Roadmap
	 
	 	 
	Exhibit E

	 	Software and Hardware Support
	 
	 	 
	Exhibit F

	 	End User License Agreement Terms
	 
	 	 
	Exhibit G

	 	Licensed Sites
	 
	 	 
	Exhibit H

	 	Quality Assurance and Verification
	 
	 	 
	Exhibit I

	 	Design and Manufacturing Objects
	 
	 	 
	Exhibit J

	 	Change Management Procedures
	 
	 	 
	Exhibit K

	 	Third Party Licensed Software
	 
	 	 
	Exhibit L

	 	OEM Royalties
	 
	 	 
	Exhibit M

	 	Non-Disturbance Agreement
	 
	 	 








					
	 	 	 	 	 
	 
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COLLABORATION AND LICENSING AGREEMENT




     This Collaboration and Licensing Agreement (“Agreement”) is made and entered into as of the
25th day of November 2005, (hereinafter “Effective Date”), by and between Stratus
Technologies Bermuda Ltd., a Bermuda corporation with its principle place of business at Milner
House, 18 Parliament Street, Hamilton HM 12, Bermuda (hereinafter “Stratus”), and NEC Corporation,
a Japanese corporation, having its principle place of business at 7-1, Shiba 5-chome, Minato-ku,
Tokyo 108-8001, Japan (hereinafter “NEC”).



WITNESSETH




     WHEREAS, Stratus and NEC are engaged in the business of designing, developing, manufacturing,
selling and servicing fault tolerant computer systems;



     WHEREAS, Stratus and NEC are parties to a Collaboration and Licensing Agreement dated October
1, 2001, as amended, pertaining to the “Sonic” family of fault-tolerant computer systems (the
“Prior Collaboration Agreement”),



     WHEREAS, Stratus and NEC desire to cooperate in the development of software and hardware for
fault-tolerant computer systems on the terms and conditions set forth herein, and to grant to one
another certain licenses under their respective intellectual property rights for such purpose and
otherwise as specified herein;



     NOW, THEREFORE, in consideration of the premises and of the covenants and conditions
hereinafter set forth, the parties hereby agree as follows:



AGREEMENT




     Section 1. Definitions



     As used in this Agreement, the following terms shall have the meanings set forth
below:



     1.1 “Affiliate” means an entity, other than Stratus or NEC, now or hereafter,
controlled by, controlling or under common control with a party hereto. As used herein, the term
control means the right to vote directly or indirectly more than fifty percent (50%) of the voting
stock of an entity or the ownership of more than fifty percent (50%) of the equity interest either
directly or indirectly.



     1.2 “Commercial Readiness Date” has the meaning set forth in Section 3.3.



     1.3 “Design Objects” shall have the meaning set forth in Section 3.8.b.



     1.4 “Derivative Products” means Fault Tolerant Systems developed by or for a
party outside the scope of the Development Program.



     1.5 “Development Plan” shall have the meaning set forth in Section 3.2.



     1.6 “Development Milestones” means specified tasks to be accomplished,
deliverables to be provided or approvals to be obtained by a Party within certain timeframes as set
forth in a Development Plan hereunder.







					
	 	 	 	 	 
	 
	 	 
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     1.7 “Development Program” shall have the meaning set forth in Section 3.1.



     1.8 “Enhancement” means any improvements, modifications, adaptations,
extensions, or upgrades of a Joint Product, Derivative Product or components thereof.



     1.9 “First Commercial Shipment” or “FCS” means the first date on which a party
ships the first commercially released version of a Joint Product to a non-Affiliate customer
(excluding demonstration, test, evaluation, beta and other pre-commercial products).



     1.10 “Fault Tolerant System” means any fault-tolerant computing system or
environment implementation using hardware lockstep technology and comprised of hardware and
operating software, which fulfills the following:




	 	•	 	main components, including, but not limited to , CPU, Main Memory and chipsets, are configured in
duplicate,
	 
	 	•	 	duplicated main components operate in lock step mode,
	 
	 	•	 	utilizes a single operating system
	 
	 	•	 	operation continues without degenerating the view from software on single failure, and
	 
	 	•	 	designed for measured system availability at or in excess of 99.99%.





     1.11 “Gemini” means the Fault Tolerant System NEC is currently designing and
developing based on the Intel CPU architecture, specifically targeting Irwindale and Dempsey.



     1.12 “General Release” means the release of a product for commercial sale or
distribution, excluding demonstration units, alpha versions, beta versions, evaluation units and
other pre-commercial products.



     1.13 “Independent Derivative Product” means a Derivative Product that has not
been added as a Joint Product pursuant to Section 3.4.



     1.14 “Initial Term Expiration Date” means the tenth (10th)
anniversary of the Effective Date.



     1.15 “Intellectual Property Rights” means Patents, Know-How, copyrights,
trademarks and all other forms of intellectual and industrial property throughout the world.



     1.16 “Joint Products” means the Fault Tolerant Systems developed pursuant to
the Development Program and described in a Development Plan hereunder, together with any
Enhancements thereto developed pursuant to a Development Plan and any Derivative Products included
as Joint Products pursuant to Section 3.4. In case a Joint Product is



					
	 	 	 	 	 
	 
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embedded in other computer systems that are not a Fault Tolerant System, such as an NEC blade
server, only the embedded Joint Product shall be within the scope of this Agreement. Such non Fault
Tolerant computer systems (other than the embedded Joint Product) may also be sold to the other
party at mutually agreed prices and terms.




     1.17 “Joint Product Roadmap” shall have the meaning set forth in Section 3.4.



     1.18 “Know-How” means proprietary know-how, trade secrets and all other
confidential business or technical information.



     1.19 “Licensable” means the extent to which Intellectual Property Rights owned
by a Third Party may be licensed by a party hereunder without obtaining the consent of such Third
Party and without giving rise to any obligation to pay any royalty, license fee or other amount
which the other party has not agreed in advance to reimburse pursuant to Section 12.2.



     1.20 “Manufacturing Information” means all Know-How that is reasonably
required to enable a party or its contractor(s) to manufacture a product whether a Joint Product or
a Derivative Product, including the hardware design, design drawings, schematics, board layouts,
manuals, instructions, parts and vendors lists, bills of materials, training materials, diagnostic
and testing information, materials data sheets, safety data and standards, packaging information
and all other information relating to the manufacture, assembly and testing of such products.



     1.21 “Material Breach” means a material failure of a party to comply with a
material term or condition of this Agreement, which failure remains uncured [sixty (60)] days
following written notice of such failure by the other party or, if such failure is not susceptible
of cure, has not been addressed by a remedial plan that is likely, in the reasonable opinion of the
other party, to prevent such a failure from recurring and which provides adequate redress to such
other party for any damages arising from such failure.



     1.22 “NEC Background Patents” means all Patents that (a) have an effective
filing date prior to the Effective Date, (b) are owned or Licensable by NEC or any Affiliate, and
(c) are the claims of which cover one or more features of Fault Tolerant Systems or their use.



     1.23 “NEC Background Know-How” means all Know-How related to Fault Tolerant
Systems, that (a) is owned or Licensable by NEC or any Affiliate, and (b) was disclosed by them to
Stratus or an Affiliate prior to the Effective Date, whether under the Prior Collaboration
Agreement or otherwise, including but not limited to Know-How that is contained in the form of
computer programs.. For the purpose of this definition Know-How includes computer programs..



     1.24 “NEC Core Software” means the software that is incorporated in to or a
part of the existing NEC “Gemini” computer system.



					
	 	 	 	 	 
	 
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     1.25 “NEC Hardware Technology” means that current and future hardware
technology (including firmware) developed or specified by NEC for use in the Joint Products as
generally described in Exhibit A and to be specified in detail in the Development Plans, including
without limitation all Technology related to NEC’s “Gemini” product development activities, and any
NEC Independent Derivative Products.



     1.26 “NEC Foreground Know-How” means all Know-How that (a) is owned by NEC or
any Affiliate, and (b) is disclosed by them to Stratus or an Affiliate during the Term and relating
to the Development Program.



     1.27 “NEC Foreground Patents” means all Patents having an effective filing
date on or after to the Effective Date that are owned or Licensable by NEC or any Affiliate and the
claims of which cover one or more features of the Joint Products, Derivative Products, Enhancements
or any other Fault Tolerant Systems or their respective use.



     1.28 “NEC Licensed Software” means the NEC Core Software, NEC Value-Added
Products and Design Objects, provided to Stratus pursuant to Section 4.5, and all Enhancements to
the foregoing.



     1.29 “NEC Licensed Technology” means the NEC Licensed Software, the NEC
Hardware Technology and any Enhancements made by NEC to the Stratus Licensed Technology.



     1.30 “Patents” means patents, utility models, design patents, design
registrations, certificates of invention and other governmental grants for the protection of
inventions or industrial designs anywhere in the world and all reissues, renewals, counterparts,
re-examinations, continuations, continuations-in-part, divisionals, substitutions and extensions of
any of the foregoing, any applications for any of the foregoing, and any patents or registrations
which may issue on any such applications and any similar, corresponding or equivalent rights to any
of the foregoing any where in the world.



     1.31 “Person” means any person or entity, whether an individual, corporation,
partnership, limited partnership, limited liability company, trust, foundation,
unincorporated organization, business association, firm, joint venture or other legal entity.



     1.32 “Personnel” means any employee, contractor, consultant or agent of a party.



     1.33 “Prior Collaboration Agreement” has the meaning set forth in the Recitals
hereto.



     1.34 “Project Document” shall have the meaning set forth in Section 3.2.



     1.35 “Specifications” means the written specifications, including but not
limited to functional and performance specifications, for all or any portion or component of a
Joint Product as agreed by the parties, either in this Agreement or any amendment hereto, or in a
separate writing signed and dated by the parties.



					
	 	 	 	 	 
	 
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     1.36 “Stratus Background Patents” means all Patents that (a) have an effective
filing date prior to the Effective Date, (b) are owned or Licensable by Stratus or any Affiliate,
and (c) are the claims of which cover one or more features of Fault Tolerant Systems or their use.



     1.37 “Stratus Background Know-How” means all Know-How related to Fault
Tolerant Systems, that (a) is owned or Licensable by Stratus or any Affiliate, and (b) was
disclosed by them to NEC or an Affiliate prior to the Effective Date, whether under the Prior
Collaboration Agreement or otherwise. For the purpose of this definition Know-How includes computer
programs..



     1.38 “Stratus Core Software” means that core software (including relevant
Third Party Software) developed or specified by Stratus for use with the Joint Products as
generally described in Exhibit C and to be specified in detail in the Development Plans.



     1.39 “Stratus Foreground Know-How” means all Know-How that (a) is owned by
Stratus or any Affiliate, and (b) is disclosed by them to NEC or an Affiliate during the Term and
relating to the Development Program.



     1.40 “Stratus Foreground Patents” means all Patents having an effective filing
date on or after to the Effective Date that are owned or Licensable by Stratus or any Affiliate and
the claims of which cover one or more features of the Joint Products, Derivative Products,
Enhancements, and any other Fault Tolerant Systems or their respective use.



     1.41 “Stratus Licensed Software” means the Stratus Core Software, Value Added
Products and Design Objects provided to NEC pursuant to Section 4.5, and all Enhancements to the
foregoing.



     1.42 “Stratus Licensed Technology” means the Stratus Licensed Software and any
Enhancements made by Stratus to the NEC Licensed Technology.



     1.43 “Supply Agreement” means that Product Supply Agreement between the
parties of even date herewith, as it may be amended in accordance with its terms from time to time.



     1.44 “Technology” means software, hardware, designs, layouts, inventions,
processes, methods and other technology however embodied.



     1.45 “Third Party” means a Person other than a party or its Affiliates.



     1.46 “Third Party Software” means software that incorporates Intellectual
Property Rights owned by a third party.



     1.47 “Value-Add Products” shall have the meaning set forth in Section 4.5.



					
	 	 	 	 	 
	 
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     Section 2. Agreement Term



     Unless
earlier terminated pursuant to Section 23, the term of this
Agreement (“Term”) shall
commence on the Effective Date and end on the Initial Term Expiration, and shall automatically
renew on an annual basis on each subsequent anniversary of the Effective Date unless a written
notice of termination is given by either party to the other party not less than one hundred and
eighty (180) days prior to the such anniversary of the Effective Date.



     Section 3. Conduct of Development Program



     3.1 General. During the Term, the parties will undertake a comprehensive joint
development program for the development and commercialization of Joint Products, wherein Stratus
will be primarily responsible for the development of the Stratus Core Software and NEC will be
primarily responsible for the development of the NEC Hardware Technology, each for use solely in
the Joint Products and certain Derivative Products, as described more fully in this Agreement (the
“Development Program”). Exhibit C hereto defines the overall roles of the parties
in the Development Program. Stratus agrees that all Joint Products sold, leased or distributed by
Stratus or its Affiliates shall use the NEC Hardware Technology exclusively to perform the
functions that the NEC Hardware Technology is designed to perform, and Stratus and its Affiliates
shall not install, include or bundle any other hardware capable of performing such functions with
the Joint Products, or encourage the use or installation of any such other hardware in connection
with the Joint Products.



     3.2 Development Project Phases. The development of each Joint Product will
proceed in four phases: Concept Phase, Definition Phase, Development Phase and Verification Phase.
The specific activities to be conducted as part of each of these phases is described in Exhibit
B. As part of each phase, the parties will agree on certain specifications and requirements for
the Joint Products, the specific roles and responsibilities of the parties in each such phase, and
the other matters described in Exhibit B. In particular, for each Joint Product a written
“Development Plan” will be developed and agreed by the parties as part of each Development
Phase. Such
Development Plan will contain and define appropriate development tasks and activities, life
cycle, schedule, Specifications, performance requirements, approval and testing procedures,
expected upgrades, deliverables and Development Milestones. Once agreed, the Development Plan will
be signed and dated by each party. Each document, including each Development Plan, produced and
agreed upon by the parties as part of the Development Program (a “Project Document”) shall
be considered to be incorporated into and to form a part of this Agreement; provided, however, that
in the event of any discrepancy or inconsistency between the terms of this Agreement and any
Project Document, the terms of this Agreement shall control



     3.3 Quality Assurance and Verification. Prior to the announcement or release
of any specific Joint Product, the parties shall undertake the quality assurance and verification
measures described in Exhibit I and must agree that all applicable quality assurance and
verification criteria have been satisfied with respect to such Joint Product. The date on which the
parties agree in writing that a Joint Product is accepted and suitable for commercial



					
	 	 	 	 	 
	 
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release shall be termed the “Commercial Readiness Date” for such Joint Product. Except as
set forth in Sections 4.1 and 16.1, neither party shall announce, offer, market, promote, sell, or
lease any Joint Product prior to the Commercial Readiness Date, without the other party’s prior
approval, such approval not to be unreasonably withheld or delayed. However, the foregoing shall
not restrict a party from disclosing, prior to the Commercial Readiness Date, and under terms of
confidentiality, the Joint Product Road Map, Joint Products and any proposed Individual Derivative
Products to current and prospective customers, vendors, consultants, advisors, investors, as they
deem appropriate in their sole discretion.




     3.4 Joint Product Roadmap and Derivative Products.



          a. Attached hereto as Exhibit D is an initial high-level “roadmap” describing the
parties’ minimum requirements for evolution of the Joint Products over the Term (the “Joint
Product Roadmap”). The parties shall prepare a detailed Joint Product Roadmap consistent with
such minimum Joint Product Roadmap requirements and each such detailed Joint Product Roadmap, once
signed and dated by both parties hereto, shall become a part of this Agreement and appended to
Exhibit D hereto. The parties shall, review the detailed Joint Product Roadmap at each quarterly
Status Meeting and make any mutually- agreed revisions to reflect the availability of new or
improved technologies, new features or functionality requested by customers and the overall
competitive and market landscape. The Joint Product Roadmap will also address the expected end of
life (“EOL”) for each Joint Product.




          b. In the event that either party desires or plans to develop or have developed a Derivative
Product, it will first provide to the other party on a confidential basis, a detailed written
description of the proposed Derivative Product, including (to the extent available) its anticipated
performance, features, interoperability and functionality, estimated cost of development, testing
and manufacture, estimated development timeline, anticipated market demand, anticipated development
challenges and obstacles (including technical and intellectual property) and the means by which the
Derivative Product is expected to fit into the overall Joint Product Roadmap (the “Derivative
Proposal”). The Derivative Proposal will be provided to the other party in a time
frame that consistent with the completion of the Concept Phase for a Joint Product.




          c. The receiving party shall have a period of sixty (60) days (the “Derivative
Consideration Period”) to consider and evaluate each Derivative Proposal, during which time the
proposing party shall answer all reasonable inquiries posed by the receiving party with respect
thereto. During the Derivative Consideration Period, the receiving party shall have the right to
propose reasonable changes to the Derivative Proposal, which shall be considered by the proposing
party in good faith.




          d. Upon written notice given by the receiving party to the proposing party at any time during
the Derivative Consideration Period, the Derivative Proposal shall be added to the Joint Product
Roadmap and the associated Derivative Product shall be deemed a Joint Product for all purposes
hereunder. If a Derivative Product is not included as a Joint




					
	 	 	 	 	 
	 
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Product pursuant to this Section 3.4, then it shall be termed an “Independent Derivative Product”
and the proposing party shall have the right to develop, manufacture and sell such Independent
Derivative Product independently of the collaboration established hereby, subject to the other
party’s right to purchase such Independent Derivative Product from the proposing party under the
Supply Agreement.




     3.5 Cooperation and Technology Transfer. Throughout the Term, the parties
shall cooperate in the execution of the Development Program and their respective obligations
thereunder. In furtherance of this cooperation, each party shall provide or make available to the
other all Technology that is licensed pursuant to the terms hereof, including without limitation
the NEC Hardware Technology, NEC Licensed Software, and Stratus Licensed Software and all
Enhancements thereto. Such Technology transfer shall commence as soon as possible following the
Effective Date and shall continue throughout the term. Such Technology shall be provided, at no
charge, in the form in which it is most commonly used by the licensor party (either electronic or
digital files, or hard copy), but in any event in a form that is readily understandable and useable
by engineers skilled in the development of fault tolerant computer systems. If the other party
requests another reasonable format and the providing party agrees, any associated reasonable costs
and expenses for providing such Technology in such other format shall be paid promptly to the
providing party. In addition, each party shall make its Personnel reasonably available to explain
and instruct the other party’s Personnel with respect thereto, with a goal of enabling such other
party’s Personnel to make the most effective use thereof possible so as to facilitate the
development and deployment of the Joint Products.



     3.6 Project Management.



          a. Each party shall designate a “Project Manager” to act as its primary representative
with respect to matters relating to the Collaboration. The initial Project Managers designated by
the parties are set forth below. A party shall have the right to change its Project Manager upon
written notice to each other party. Each party
represents that its Project Manager has the authority to bind such party contractually and to
represent such party’s interests with respect to the Development Program.




	 	 	 	 	 

	          Stratus Project Manager:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	          NEC Project Manager:
	 	 	 	 
	 

	 	 	 	 





          b. The Project Managers shall meet in person or by telephone at mutually-agreed times
(“Status Meetings”) no less frequently than once per calendar quarter to assess the success
of and prospects for the Development Program and to discuss any other material issues relating to
the Development Program. A reasonable number of other representatives of each Party may also attend
such Status Meetings. The parties may invite one or more third parties to join the Status Meeting
if mutually agreed upon by both parties.




					
	 	 	 	 	 
	 
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At least one such Status Meeting during each calendar year shall be held in person. The location of
in-person Status Meetings shall alternate between Japan and the United States. Each party shall use
its best efforts to ensure that its Project Manager and other representatives attend each Status
Meeting. After each meeting, the Project Managers shall prepare a joint report for the senior
management of both parties reviewing the status of the Development Program and the Joint Product
Roadmap. The Project Manager of a party shall have the right to authorize any other employee of
said party to act on his or her behalf with respect to any action, decision or other matter he or
she is authorized or empowered to take. Any such delegated authorization shall be communicated in
writing to the other party.




     3.7 Performance under Development Plans. Each party shall use its best efforts
to perform its obligations under each Development Plan within the timeframe specified therefor, and
to meet all Development Milestones by the dates set forth in the Development Plan. It is
acknowledged that time shall be of the essence in the performance of all obligations under the
Development Plans.



     3.8 Development Platforms and Tools.



          a. NEC will sell Development Platforms to Stratus under the Supply
Agreement.




          b. NEC shall provide to Stratus, at no charge, electronic copies of hardware design objects
(“Design Objects”) and the NEC Licensed Software that are useful to facilitate Stratus’s
design and development of the Stratus Core Software, speed debug of problems, design and develop
Derivative Products, manufacture Joint Products, provide product support and sustaining service,
and otherwise to carry out activities under this Agreement. Examples of such Design Objects are set
forth in Exhibit J. Design Objects which are required only for the manufacture of Joint Products or
Derivative Products are available only if mutually agreed and such objectives are designated as
manufacturing Design Objects in Exhibit J. Design Objects and NEC Licensed Software shall
be provided by NEC no later than two (2) weeks following Stratus’s request therefor. In addition,
NEC shall provide to Stratus each revision that it
makes to any Design Object and Licensed Software previously provided to Stratus within seven
(7) days following its development. Stratus acknowledges that Design Objects provided by NEC
hereunder shall constitute Confidential Information of NEC subject to the provisions of Section 18.




          c. Stratus shall provide to NEC, at no charge electronic copies of Design Objects that are
useful to facilitate NEC’s design and development of the NEC Hardware Technology, speed debug of
problems, design and develop Derivative Products, manufacture Joint Products, provide product
support and sustaining service, and otherwise to carry out NEC’s activities under this Agreement.
Examples of such Design Objects are set forth in Exhibit J. Design Objects shall be
provided by Stratus no later than two (2) weeks following NEC’s request therefore. In addition,
Stratus shall provide to NEC each revision that it makes to any Design Objects previously provided
to NEC within seven (7) days following its




					
	 	 	 	 	 
	 
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development. NEC acknowledges that Design Objects provided by Stratus hereunder shall constitute
Confidential Information of Stratus subject to the provisions of Section 18.




     Section 4. Commercial Deployment



     4.1 Beta Programs. The parties agree, as part of a Development Plan and the
Joint Product Roadmap, that each of them shall have the right to release certain Joint Products in
pre-commercial “beta” form to certain of their respective customers prior to General Commercial
Release thereof. The parties shall agree in writing on the number of beta units to be released, and
types of customer feedback sought. All customer feedback relating to the Joint Products generated
from beta programs shall be the joint property of both parties, and each party shall promptly
disclose any such customer feedback that it or its Affiliates receives to the other.



     4.2 Software Delivery/Installation. Stratus shall supply NEC with master
copies of all Stratus Core Software in source code and object code forms, that has been tested and
approved by the parties for release with the Joint Products. Stratus shall supply such Stratus Core
Software in a form that is suitable for reproduction and installation on Joint Product hardware.
NEC, at its cost, shall be responsible for installing all Stratus Core Software on the Joint
Product hardware prior to shipment from NEC’s production facility. NEC’s license with respect to
such Stratus Core Software is set forth in Section 10.1 below.



     4.3 Supply of Products. During the Term Stratus has the right to buy all Joint
Products and NEC Independent Derivative Products, and components and spare parts therefore, to
Stratus pursuant to the Supply Agreement. If requested by Stratus, NEC further agrees to provide
Stratus with a proposal to make and sell to Stratus, Stratus Independent Derivative Products under
the Supply Agreement.



     4.4 Independent Sales by Parties. Subject to license terms and conditions and
any other requirements as may be set forth in this Agreement, each party shall be free, in its sole
and absolute discretion, to market, sell, lease, loan, rent or otherwise dispose of Joint Products
and Independent Derivative Products that it manufactures or purchases,
itself or through any distribution channel, at prices determined in its sole and absolute
discretion. Nothing in this Agreement shall require or permit any party to share or disclose
information regarding its pricing of Joint Products or Independent Derivative Products.



     4.5 Value-Add Products Development. In addition to development of the Stratus
Core Software and the NEC Hardware Technology pursuant to the Development Plans, Stratus and NEC
shall be free, in their sole discretion and at their respective expense, to develop additional
software and or hardware that may operate on or in conjunction with the Joint Products and
Enhancements, including, by way of example, rapid disk resynch and active upgrade software
(“Value-Add Products”). Neither party shall have any obligation to develop Value-Add
Products hereunder. However, if a party does elect to undertake such development of Value-Add
Products which operates on Fault Tolerant Systems, but does not operate on any other server
(“Value-Add Products for FT”), it shall notify the other party at



					
	 	 	 	 	 
	 
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least [three (3)] months prior to the commercial release of such Value-Add Products for FT, and
shall negotiate in good faith with the other party regarding the sale and/or licensing of such
Value-Add Products for FT for inclusion with Joint Products and/or Derivative Products sold and
distributed by such other party.




     4.6 Strategic Suppliers. Stratus and NEC shall cooperate to arrange meetings
periodically, but no less frequently than twice per year, with strategic suppliers of components
and Third Party Software for the Joint Products. Each party will use its best efforts to ensure
that its Project Manager, or his/her designee attends each such meeting. Prior to such meeting,
certain non-disclosure agreement among Stratus, NEC and the supplier shall be executed. The purpose
of such meetings shall be to review supplier roadmaps and joint marketing programs so as best to
position the Joint Products for future development and evolution in accordance with the Joint
Product Roadmap, and to adjust the Joint Product Roadmap to take into account market and similar
factors.



     Section 5. Manufacturing By Stratus



     5.1 Manufacturing Information. In the event that Stratus notifies NEC at a
Status Meeting during the Term that Stratus desires (either itself or through one or more third
party manufacturers) to manufacture one or more Joint Products (a “Manufacturing Notice”),
NEC shall provide to Stratus, no later than twenty (20) days following Stratus’s notice, all
Manufacturing Information relating to such Joint Products. Such Manufacturing Information shall be
provided in the form in which it is most commonly used by NEC (either electronic or digital files,
or hard copy), unless Stratus requests another reasonable format, but in any event in a form that
is readily understandable and useable by personnel skilled in the manufacture of fault tolerant
computer systems. If the other party requests another reasonable format and the providing party
agrees, any associated reasonable costs and expenses for providing such Manufacturing Information
in such other format shall be paid promptly to the providing party.



     5.2 Knowledge Transfer. Following any Manufacturing Notice, NEC shall ensure
that its Personnel having technical knowledge regarding the manufacture, assembly and
testing of the Joint Products shall transfer and convey such knowledge as effectively,
completely and efficiently as possible to those Stratus Personnel designated by Stratus. Beginning
no later than [ten (10)] days following receipt of a Manufacturing Notice from Stratus, NEC shall
give Stratus Personnel access to all NEC and contractor manufacturing, assembly, testing and
warehousing facilities relevant to the Joint Products. Such Stratus Personnel shall be permitted to
observe NEC’s and its contractors’ full range of activities relating to the manufacture, assembly
and testing of the Joint Products. NEC shall permit such Stratus Personnel to work side-by-side
with its own Personnel involved in the manufacture, assembly and testing of the Joint Products. If
requested by Stratus NEC shall also conduct training classes for Stratus Personnel regarding the
manufacture of the Joint Products. The content, timing, location, cost and other details of such
training shall be mutually agreed.



					
	 	 	 	 	 
	 
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     5.3 Vendor Relationships.



          a. Following any Manufacturing Notice, NEC shall use its best efforts to ensure that its third
party vendors of hardware components for the Joint Products agree to supply such components to
Stratus on the same terms and conditions (including pricing) as they are supplied to NEC. Upon
Stratus’s request, NEC agrees that Stratus may purchase such components from NEC under the Supply
Agreement. In such event, unless prohibited under the contract with such vendors, NEC shall order
the components from such vendors on Stratus’s behalf and purchase price for such components shall
be the Actual Manufacturing Cost as defined in the Supply Agreement.




          b. NEC will authorize any vendor designated by Stratus to use NEC-owned tooling located at
such vendor’s facility to make components for purchase by Stratus and Stratus shall pay a pro-rata
share of any non recurring engineering charges for such NEC-owned tooling that has not been fully
amortized.




          c. Stratus and its Affiliates shall have the right to source the manufacture of Joint Products
and/or components thereof from the third party manufacturers used by NEC. NEC will request such
suppliers to provide the same pricing and terms to Stratus or its Affiliates.




     5.4 Charges. NEC and Stratus shall agree on the reasonable costs incurred by
NEC in providing the Manufacturing Information and conducting the Knowledge Transfer and the
payment terms therefore. Such costs shall be limited to the actual and reasonable material costs
for the preparation, reproduction and delivery of the Manufacturing Information and any travel and
lodging expenses incurred by NEC in conducting the Knowledge Transfer. Except as described above
there shall be no fees, royalties, or other payments due or owing to NEC with respect to Stratus’s
exercise of its right to manufacture the Products.



     Section 6. Support and Enhancements



     6.1 Disclosure of Enhancements. It is the intention of the parties that they
shall share and jointly benefit from Enhancements to the Joint Products that each of them may
develop during the Term. Accordingly, in the event that NEC or its Affiliates develops or
conceives of any Enhancement to any Stratus Licensed Technology during the Term, NEC shall
promptly disclose such Enhancement to Stratus, and in the event that Stratus or its Affiliates
develops or conceives of any Enhancement to any NEC Licensed Technology during the Term, Stratus
shall promptly disclose such Enhancement to NEC. Disclosures of all Enhancements will be made in a
manner and format most likely to enable the receiving party to understand and utilize such
Enhancement as rapidly as possible.



     6.2 Software Support. Stratus shall correct, update and enhance the Stratus
Core Software in the manner described in Exhibit E and shall disclose and provide all
resulting Enhancements to NEC in accordance with Section 6.1 above.



					
	 	 	 	 	 
	 
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     6.3 Hardware Support. NEC shall correct, update and enhance the NEC Hardware
Technology in the manner described in Exhibit F and shall disclose and provide all resulting
Enhancements to Stratus in accordance with Section 6.1 above.



     6.4 Change Management. The parties agree to comply with the change management
procedures set forth in Exhibit K with respect to all Enhancements and other changes that are
proposed to the Joint Products or any components thereof.



     Section 7. License and Ownership of Background Patents and Know-How



     7.1 Stratus Background Patents and Know-How. Stratus hereby grants to NEC a
nonexclusive, royalty-free, paid-up, worldwide, non-transferable, license under the Stratus
Background Patents and Stratus Background Know-How (without the right to sublicense except as
provided under Section 11) to make, have made, use, sell, offer for sale and import (directly and
through its distribution channels) Joint Products, Enhancements, Derivative Products and Gemini.



     7.2 NEC Background Patents and Know-How. NEC hereby grants to Stratus a
nonexclusive, royalty-free, paid-up, worldwide, non-transferable, license under the NEC Background
Patents and NEC Background Know-How (without the right to sublicense except as provided under
Section 11) to make, have made, use, sell, offer for sale and import (directly and through its
distribution channels) Joint Products, Enhancements, Derivative Products and Gemini.



     7.3 Ownership. Nothing in this Agreement shall affect either party’s ownership
of any Background Patents or Background Know-How, and each party shall retain all of its right,
title and interest in and to such, Background Patents and Background Know-How, whether or not
included in or covering Joint Products, Derivative Products, or Gemini



     Section 8. Ownership of Foreground Technology



     8.1 Solely-Developed Technology. Each party shall own all Technology
(including Enhancements) developed, created or reduced to practice solely by its Personnel during
the Term and all Intellectual Property Rights therein.



     8.2 Jointly-Developed Technology.



          a. Any Technology that is jointly developed by the parties as part of the Development Program
(“Jointly-Developed Technology”), and all Intellectual Property Rights therein, shall be
owned jointly by the parties, in undivided, equal shares, without any duty of accounting or
royalty. Each party shall be free to exploit the Jointly-Developed Technology in any manner.




          b. The parties shall be required to mutually agree on the filing of any patent applications
covering Jointly-Developed Technology prior to filing, and neither party shall make any such
application or filing without the other party’s prior written consent.




					
	 	 	 	 	 
	 
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          c. Either party shall be free to license the Jointly-Developed Technology and all Intellectual
Property Rights therein, to any third party without the consent of, or notice to, the other party,
and each party hereby expressly consents to such licenses.




     Section 9. Foreground Patent and Know-How Licenses



     9.1 Stratus Foreground Patents and Know-How. Stratus hereby grants to NEC a
nonexclusive, royalty-free, paid-up, worldwide, non-transferable, license under the Stratus
Foreground Patents and Stratus Foreground Know-How (without the right to sublicense except as
provided under Section 11) to make, have made, use, sell, offer for sale and import (directly and
through its distribution channels) Joint Products, Enhancements, NEC Derivative Products and
Gemini.



     9.2 NEC Foreground Patents and Know-How. NEC hereby grants to Stratus a
nonexclusive, royalty-free, paid-up, worldwide, non-transferable, license under the NEC Foreground
Patents and NEC Foreground Know-How (without the right to sublicense except as provided under
Section 11) to make, have made, use, sell, offer for sale and import (directly and through its
distribution channels) Joint Products, Enhancements, Stratus Derivative Products and Gemini.



     Section 10. Software Licenses



     10.1 Stratus Licensed Software. Stratus hereby grants to NEC a nonexclusive,
royalty-free, paid-up, worldwide, non-transferable, non-exclusive, license (without the right to
sublicense except as provided under Sections 11 and 10.4) under all Intellectual Property Rights of
Stratus:



          a. to use, reproduce and modify the Stratus Licensed Software in source code and object code
forms for the purposes of (i) designing, developing and testing hardware and software components of
the Joint Products and NEC Independent Derivative Products and (ii) providing support and
maintenance services for Joint Products and NEC Independent Derivative Products sold to end users;




          b. to reproduce and install the Stratus Licensed Software in object code form on Joint
Products and NEC Independent Derivative Products;




          c. to distribute the Stratus Licensed Software in object code form to end user customers of
Joint Products and NEC Independent Derivative Products , solely as embedded or installed on or
bundled together with the Joint Products and NEC Independent Derivative Products, and not on a
stand-alone basis, and




          d. to sublicense the use of the Stratus Licensed Software in object code form to end user
customers of Joint Products and NEC Independent Derivative Products, solely as embedded or
installed on or bundled together with the Joint Products and NEC Independent Derivative Products,
and not on a stand-alone basis, pursuant to the provisions




					
	 	 	 	 	 
	 
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of Section 10.2 below. Notwithstanding the foregoing, NEC shall have the right to sublicense and
distribute Enhancements such as but not limited to patches, fixes, updates, revisions and new
versions of the Stratus Licensed Software to end user customers of Joint Products and NEC
Independent Derivative Products.




     10.2 Use of Stratus Core Software. NEC agrees that all Joint Products sold,
leased or distributed by NEC or its Affiliates shall use the Stratus Core Software exclusively to
perform the functions that the Stratus Core Software is designed to perform, and NEC and its
Affiliates shall not install, include or bundle any other software capable of performing such
functions with the Joint Products, or encourage the use or installation of any such other software
in connection with the Joint Products.



     10.3 NEC Licensed Software. NEC hereby grants to Stratus a nonexclusive,
royalty-free, paid-up, worldwide, non-transferable, non-exclusive, license (without the right to
sublicense except as provided under Section 11 and 10.4) under all Intellectual Property Rights of
NEC:



          a. to use, reproduce and modify the NEC Licensed Software in source code and object code forms
for the purposes of (i) designing, developing and testing hardware and software components of the
Joint Products and Stratus Independent Derivative Products (ii) providing support and maintenance
services for Joint Products and Stratus Independent Derivative Products sold to end users;




          b. to reproduce and install the NEC Licensed Software in object code form on Joint Products
and Stratus Independent Derivative Products; and




          c. to distribute the NEC Licensed Software in object code form to end user customers of Joint
Products and Stratus Independent Derivative Products, solely as embedded or installed on or bundled
together with the Joint Products and Stratus Independent Derivative Products, and not on a
stand-alone basis, and




          d. to sublicense the use of the NEC Licensed Software in object code form to end user
customers of Joint Products and Stratus Independent Derivative Products, solely as embedded or
installed on or bundled together with the Joint Products and Stratus Independent Derivative
Products, and not on a stand-alone basis.
Notwithstanding the foregoing, Stratus shall have the right to sublicense and distribute
Enhancements such as but not limited to patches, fixes, updates, revisions and new versions of the
NEC Licensed Software to end user customers of Joint Products and Stratus Independent Derivative
Products.




     10.4 End User Sublicenses. Each party shall ensure that each end user to whom
the other party’s software is provided receives and affirmatively assents to a legally binding end
user license agreement (“EULA”) at or prior to the time of receipt of such software. Such EULA must
be as protective as that used by the distributing party for licensing its own software of similar
nature and which must include, at least, the minimum EULA terms



					
	 	 	 	 	 
	 
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contained in Exhibit G. Should the owner of the Intellectual Property Rights in the
relevant software seek to directly enforce the terms of any such sublicense, the sublicensing party
shall, at the expense of the requesting party, take such action and provide the owner such
assistance, cooperation, and documentation as the owner of the Intellectual Property Rights may
reasonably request.




     10.5 Protection of Source Code. During the Term each party shall have the
right to make a reasonable number of copies of any source code provided to it hereunder as
necessary in its exercise of the rights granted hereunder. All such copies shall include the
software owner’s proprietary and/or copyright notices that are included in the master copies. Such
source code shall be stored and used only at the location(s) specified for each party in
Exhibit H (“Licensed Site(s)”). If a party wishes to add or change a Licensed Site,
it must notify the other party and obtain such other party’s prior written permission. Such other
party shall not unreasonably withhold or delay such permission. Each party acknowledges that the
other party’s source code, Enhancements thereof and other modifications thereto are Confidential
Information of the owning party and shall be subject to the conditions and restrictions set forth
in Section 18 of this Agreement.



     Section 11. Sublicensing



     11.1 General Prohibition. Except as expressly provided in this Agreement,
neither Stratus nor NEC, nor their respective Affiliates, shall have the right to sublicense any
rights granted to it by the other party for any purpose without the prior written consent of the
licensing party on each occasion.



     11.2 Affiliates. Notwithstanding the foregoing, each party may grant
sublicenses of the rights granted to it hereunder to any Affiliates within the scope of its license
hereunder (with no right to grant further sublicenses). All sublicenses granted pursuant to this
Agreement to a particular Affiliate of a party shall terminate on the date that the Affiliate
ceases to be an Affiliate of such party.



     Section 12. Third Party Rights



     12.1 Third Party Software. The Stratus Licensed Software and/or NEC Licensed
Software may include or depend upon Third Party Software as specified in the relevant
Development Plan. The licenses contemplated hereunder as to any such Third Party Software are
subject to any licenses, consents, terms and conditions or fees as may be required or imposed by
the Third Party owners. Both parties shall use commercially reasonable efforts to secure such
licenses and/or consents for the other party and its Affiliates and/or to assist the other party
and its Affiliates, in obtaining such licenses and consents. The parties shall set forth their
overall approach to obtaining licenses for necessary Third Party Software in the Development Plan.



     12.2 Licensable Third Party Rights. To the extent Intellectual Property Rights
owned by a Third Party would be considered Licensable as defined in Section 1.20 and would



					
	 	 	 	 	 
	 
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be subject to a license granted hereunder, except that the Party with the right to license such
Intellectual Property Rights would be required to pay a royalty, license fee or other amount to any
Third Party, such party shall, within a reasonable period after becoming aware of such obligation,
notify the other party of such obligation and, in the event such other party agrees within ten (10)
days of receiving such notice to reimburse such royalty, license fee or other amount, such
Intellectual Property Right shall be considered Licensable. Exhibit L lists all the third party
software included in the Stratus and/or NEC Licensed Software and any applicable third party
royalty fees. Exhibit L shall be updated from time to time to reflect the then current status of
third party software that is part of a party’s Licensed Software.




     Section 13. No Other Licenses



     No license, either express or implied, is granted by either party hereunder with respect to
such party’s Technology or Intellectual Property Rights, including without limitation any
Confidential Information, except as specifically stated herein. All rights not expressly granted
herein are reserved exclusively to owning party and/or the owner of the Intellectual Property
Rights in its Technology.



     Section 14. Subcontracting



     Each party shall have the right to subcontract or delegate the performance of any of its
duties, tasks, responsibilities or obligations under this Agreement to any third party (a
“Subcontractor”) without the prior written consent of the other party.. The party engaging
such Subcontractor shall remain fully liable to the other party for the performance of its duties,
tasks, responsibilities or obligations under this Agreement, notwithstanding any non-performance by
its Subcontractors. The party engaging a Subcontractor shall ensure that the Subcontractor executes
a written agreement imposing restrictions as to the protection of the other party’s Confidential
Information and Intellectual Property Rights consistent with the terms of this Agreement.



     Section 15. Prior Collaboration Agreement



     15.1 No Effect on Agreement. The parties agree that this Agreement shall not
terminate or otherwise affect their respective obligations under the Prior Collaboration
Agreement, which shall remain in force in accordance with its terms. The royalties and other
payments required pursuant to the Prior Development Agreement shall not be affected by this
Agreement, provided, however, that it is acknowledged that no such royalties or payments shall be
due under the Prior Development Agreement with respect to the Gemini product, any Joint Product, or
any Independent Derivative Product that is governed by this Agreement.



     15.2 Acknowledgement and Covenant. Each party hereby agrees and acknowledges
that, as of the Effective Date, the other party is in full compliance with its obligations under
the Prior Collaboration Agreement. Each party, on behalf of itself and each of its Affiliates,
hereby covenants and agrees that it shall not, directly or indirectly, bring or threaten any legal
or equitable claim, action, suit or litigation against the other party or its



					
	 	 	 	 	 
	 
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Affiliates in respect of any actual or alleged breach of the Prior Collaboration Agreement
occurring prior to the Effective Date.




     Section 16. Marketing Activities



     16.1 Product Announcements. With respect to each Joint Product, the Parties
shall jointly agree on the Commercial Readiness Date of such Joint Product. Neither party shall
announce a date for the General Release and/or availability a Joint Product or begin shipments of a
Joint Product to the market place or any customer generally prior to the Commercial Readiness Date
without the prior approval of the other party which approval shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, the parties acknowledge that Joint Product announcements
are not required hereunder, and that, subject to the foregoing requirements, actual announcement
dates and customer shipment dates may differ between the parties. The parties further agree that
nothing herein shall restrict the parties from making beta shipments of Joint Products or from
otherwise shipping Joint Products prior to the Commercial Readiness Date for testing, evaluation,
training and development and similar purposes in accordance with the terms of Section 4.1 above



     16.2 Marketing Statements. Each party shall advise its sales force (including
its Affiliates and third party resellers, distributors and sales agents) to represent the Joint
Products as being the result of a joint development effort with the other party. Each party shall
instruct its direct sales force (excluding third party resellers, distributors and sales agents)
and its other employees not disparage or attempt to belittle or tarnish the reputation of the other
party or its Affiliates in the marketplace in any manner, directly or indirectly. In the event a
party becomes aware of or is notified by the other party of any non-compliance with this Section
16.2, said party shall promptly take appropriate steps to correct any such non-compliance.



     Section 17. Trademarks and Branding



     17.1 Stratus Trademarks. Stratus hereby grants NEC a limited, non-exclusive,
non-transferable license to reproduce the Stratus trademarks and logos specifically identified to
NEC by Stratus in writing on Joint Products sold by NEC to Stratus pursuant
to the Supply Agreement, and for no other purpose whatsoever. NEC shall utilize bezels and
other devices for imprinting and applying such Stratus trademarks and logos to such Joint Products
as are approved in advance by Stratus in writing. All such Stratus trademarks and logos shall be
applied in locations and using colors and materials approved by Stratus in advance. Stratus may
suspend or terminate the foregoing license at any time upon written notice to NEC. Unless otherwise
expressly agreed no Stratus trademarks or logos shall be required to be used on Joint Products and
NEC Independent Derivative Products sold by NEC or with respect to NEC’ marketing or promotional
activities for such products.



     17.2 NEC Trademarks. NEC hereby grants Stratus a limited, non-exclusive,
non-transferable license to reproduce the NEC trademarks and logos specifically identified to
Stratus by NEC in writing on the “splash screen” and other display screens of the Stratus



					
	 	 	 	 	 
	 
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Licensed Software provided to NEC in the manner requested by NEC, and for no other purpose
whatsoever. Stratus shall utilize image files provided by NEC and apply such trademarks and logos
in locations and using colors and materials as instructed by NEC. NEC may suspend or terminate the
foregoing license at any time upon written notice to Stratus. Unless otherwise expressly agreed no
NEC trademarks or logos shall be required to be used on Joint Products and Stratus Independent
Derivative Products sold by Stratus or with respect to Stratus’ marketing or promotional activities
for such products.




     Section 18. Confidentiality/Non Disclosure Provisions



     18.1 “Confidential Information” means any and all data and other information
of a party or its Affiliates, or their respective customers, vendors, licensors, or other third
parties (i) which is disclosed by a party, as the case may be (“Discloser”) to the other
party (“Recipient”) in written or other tangible form and clearly marked as “Confidential”,
or (ii) which is disclosed orally or visually and designated as confidential at the time of the
oral or visual disclosure and, further, within thirty (30) days after the oral or visual disclosure
the summary of which is furnished to Recipient in writing clearly marked as “Confidential.” The
parties also acknowledge and agree that during the course of their activities under this Agreement
their respective employees, agents and subcontractors may gain access to information of the other
party and/or of said other party’s current and prospective customers, vendors, and supplier that by
its nature or kind would be considered by a reasonable person to be trade secret or confidential
information. Accordingly the parties agree that such information shall also be deemed Confidential
Information hereunder and subject to the terms and conditions of this Section 18.



     18.2 Recipient shall use Discloser’s Confidential Information solely for the purposes
contemplated under this Agreement (hereinafter referred to as “Purpose”). Recipient shall make no
other use of Discloser’s Confidential Information without Discloser’s prior written approval in
each instance. Stratus and NEC agree that when their Personnel are on the premises of the other
party, and they desire to move outside
such premises, physically or electronically, any Confidential Information of the other party,
they must obtain prior written permission of the other party.



     18.3 Recipient shall treat Discloser’s Confidential Information as proprietary
property of Discloser and maintain such Confidential Information in strict confidence. Recipient
shall not disclose any of Discloser’s Confidential Information to any third party except the
employees or contractors (under written nondisclosure agreements with substantially the same
confidentiality obligations as this Agreement) of Recipient or its Affiliates who have a legitimate
need to know such Confidential Information for the Purpose. Recipient shall take appropriate action
by instruction or agreement with its Personnel who are permitted access to Discloser’s Confidential
Information to satisfy its obligations hereunder.



     18.4 Recipient may make copies, in whole or in part, of Discloser’s Confidential
Information only to the extent necessary for the use thereof by Recipient in accordance with this
Agreement, provided that Recipient shall reproduce and include such proprietary and



					
	 	 	 	 	 
	 
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confidentiality notice and other restrictive legends or marks of the Discloser or third party
owner, on each such copy.




     18.5 The obligations of the Recipient under this Agreement with respect to the
Discloser’s Confidential Information shall survive the expiration or earlier termination of this
Agreement.



     18.6 The confidentiality and restricted use obligations imposed by this Agreement upon
Recipient shall not extend to any information which: (i) is publicly available or becomes publicly
available through no fault of Recipient; (ii) is already in the lawful possession of Recipient
without restriction prior to disclosure to Recipient hereunder; (iii) is rightfully obtained by
Recipient without restriction from a source other than Discloser; or (iv) is at any time developed
independently by employees of Recipient or its Affiliates who had no access to the Discloser’s
Confidential Information. The obligations of Recipient hereunder with respect to Discloser’s
Confidential Information, other than source code, shall continue for five (5) years after the
termination of this Agreement, and then shall be extended automatically for three (3) years unless
a request for review of the confidentiality period is made by either party to the other party in
writing at least ninety (90) days prior to the expiration of the confidentiality period and
likewise on an each-three-year basis thereafter. In case a request for review of the
confidentiality period is made by either party to the other party in writing by the expiration of
the confidentiality period, the parties will discuss in good faith the issue of extension of the
confidentiality period. Unless the parties agree not to extend the confidentiality period pursuant
to the review process described above, the confidentiality period will be automatically extended as
provided above. Notwithstanding anything to the contrary in this Agreement, obligations of
confidentiality with respect to source code shall be perpetual.



     18.7 The Recipient agrees that the unauthorized disclosure or use of the Discloser’s
Confidential Information will result in irreparable harm to the Discloser, and that Discloser shall
be entitled to obtain, in addition to monetary damages, equitable relief, including injunctive
relief for any such violation of this Agreement.



     Section 19. Warranties



     19.1 Each party warrants and represents to the other that it has the right and
authority to enter into this Agreement and to grant to the other the rights and licenses as herein
provided. Each party further warrants and represents to the other, that its performance under this
Agreement and the transactions contemplated hereby do not and will not conflict with any other
agreement or document to which it or its Affiliates are a party



     19.2 Stratus represents and warrants as of the Effective Date, that with the exception
of the security interest granted by Stratus Technologies, Inc. and Stratus Technologies
International, S.A.R.L. (the “Borrowers”), pursuant to the Revolving Credit Agreement, dated as of
November 18, 2003 and the related Collateral Agreement of even



					
	 	 	 	 	 
	 
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date, the Borrowers have not assigned, hypothecated or otherwise encumbered the Intellectual
Property Rights of the Borrowers in connection with securing any other indebtness .




     19.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY STRATUS WORK, ASSISTANCE,
CONSULTATION, SERVICES, TECHNOLOGY OR INFORMATION FURNISHED BY STRATUS TO NEC IN CONNECTION WITH
THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.



     19.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY NEC WORK, ASSISTANCE,
CONSULTATION, SERVICES, TECHNOLOGY OR INFORMATION FURNISHED BY NEC TO STRATUS IN CONNECTION WITH
THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT.



     19.5 Stratus and NEC shall cause their respective Affiliates, subcontractors and
contractors to observe their respective obligations and responsibilities under the Agreement. Each
party shall remain responsible to the other party for failure by their respective Affiliates,
subcontractors and contractors to observe such obligations and responsibilities.



     Section 20. Indemnification



     20.1 By Stratus. Stratus agrees to defend NEC and its Affiliates against, and
pay the amount of any adverse final judgment (or settlement) resulting from a third party claim,
that the Stratus Licensed Technology (excluding Third Party Software) infringes any patent,
copyright or trade secret, provided Stratus is notified promptly in writing of the claim and has
the sole control of the defense and settlement of said claim and that NEC provides Stratus
reasonable assistance in the defense of any such claim. Stratus
shall have no liability for indemnification respecting any claim that is based on or arises
out of (i) the combination of the Stratus Licensed Technology with products or services not
provided by Stratus, (ii) adaptations or modification of the Stratus Licensed Technology not made
by Stratus, (iii) Stratus’ compliance with NEC’s designs, specifications or requirements, or (iv)
any use by NEC or its Affiliates of the Stratus Licensed Technology in a manner not contemplated by
this Agreement. The foregoing states Stratus’ entire liability for the infringement by Stratus
Licensed Technology of a third party patent, copyright, or trade secret. Stratus shall have no
liability for indemnification hereunder respecting any claim that is based on or arises out of the
Jointly Developed Technology or NEC Licensed Technology or is otherwise attributable to NEC.



     20.2 By NEC. NEC agrees to defend Stratus and its Affiliates against, and pay
the amount of any adverse final judgment (or settlement) resulting from a third party claim, that



					
	 	 	 	 	 
	 
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the NEC Licensed Technology (excluding Third Party Software) infringes any patent, copyright or
trade secret, provided NEC is notified promptly in writing of the claim and has the sole control of
the defense and settlement of said claim and that Stratus provides NEC reasonable assistance in the
defense of any such claim. NEC shall have no liability for indemnification respecting any claim
that is based on or arises out of (i) the combination of the NEC Licensed Technology with products
or services not provided by NEC, (ii) adaptations or modification of the NEC Licensed Technology
not made by NEC, (iii) NEC’s compliance with Stratus’ designs, specifications or requirements, or
(iv) any use by Stratus or its Affiliates of the NEC Licensed Technology in a manner not
contemplated by this Agreement. The foregoing states NEC’s entire liability for the infringement by
NEC Licensed Technology of a third party patent, copyright, or trade secret. NEC shall have no
liability for indemnification hereunder respecting any claim that is based on or arises out of the
Jointly Developed Technology or Stratus Licensed Technology or is otherwise attributable to
Stratus.




     20.3 Mutual. Each party shall defend and hold the other party harmless from
and against any and all costs, expenses, damages or liabilities arising out of such party’s breach
of the terms and conditions of this Agreement.



     20.4 Conditions. As conditions of the indemnifying party’s obligation
hereunder, the indemnified party must provide prompt written notification of the claim. The
indemnifying party shall have sole control of the defense and settlement of said claim and the
indemnified party must provide all reasonable assistance to the indemnifying party on its defense
of any such claim.



     Section 21. Notices



     Any notice, request or instruction, given or permitted hereunder shall be in writing and shall
be deemed given when delivered personally, upon receipt of a transmission confirmation, if sent by
facsimile or like transmission, and on the next business day is sent via a reputable overnight
courier as follows:



	 	 	 

	     If to Stratus:

	 	Stratus Technologies Bermuda Ltd.
	 

	 	Milner House, 18 Parliament Street, Hamilton HM 12, Bermuda
	 
	 	 
	     Copy to:

	 	Stratus Technologies, Inc.
	 

	 	111 Powdermill Rd.
	 

	 	Maynard, MA. USA, 01754
	 

	 	Attn: General Counsel
	 
	 	 
	     If to NEC:

	 	NEC Corporation
	 

	 	1-10, Nisshin-cho, Fuchu, Tokyo
183-8501, Japan 
	 

	 	Attention: General Manager, Client and Server Division






					
	 	 	 	 	 
	 
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     Section 22. Publicity



     Neither party shall disclose the terms and conditions of this Agreement without the prior
written consent of the other party except (i) as may be required by court order or country,
federal, state or local law, rules or regulations (ii) to its accountants and to its financial,
legal and other professional advisors, (iii) or pursuant to a prospective merger consolidation or
acquisition of the disclosing party.



     Section 23. Termination, Breach and Remedies



     23.1 No Other Termination. Except as expressly provided in this Section 23,
neither party shall have the right to terminate this Agreement for any reason, even after an actual
or alleged Material Breach of this Agreement by the other party.



     23.2 Termination for Cause. The parties acknowledge and agree that compliance
with the Joint Product Roadmap Basic Requirements set forth in Exhibit D, is fundamental to the
success of the Development Program. Accordingly if a Material Breach by one party (the
“Defaulting Party”) is a direct cause of the failure of the parties to meet the General
Release date for a Joint Product conforming with the requirements and by the applicable date set
forth on the then current detailed Joint Product Roadmap developed by the parties pursuant to
Section 3.4 hereof, then the other party (the “Terminating Party”) shall have the right, at
its option, to notify the Defaulting Party in writing (the “Termination Notice”) of its
intention to terminate this Agreement “for Cause” under this Section 23.2. Following receipt of
such Termination Notice, the Defaulting Party shall use its best efforts to take all actions
necessary to ensure the release of such Joint Product within six (6) months of its originally
scheduled release date set forth in the detailed Joint Product Roadmap. If such Joint Product is
not released by the end of such six-month period, then the Defaulting Party shall have one (1)
additional month to develop and deliver to the Terminating Party a recovery plan acceptable to the
Terminating Party. If the Defaulting Party fails to deliver a recover plan with such one month or
if the Terminating Party does not accept the recovery plan then, the Terminating Party shall have
the right to terminate this Agreement for Cause upon written notice to the Defaulting Party, which
notice may be given any time prior to the
actual General Release of such Joint Product. Termination shall be effective upon the
Defaulting Party’s receipt of the Terminating Party’s written termination notice.



     23.3 Termination without Cause. This Agreement may be terminated by either
party (the “Canceling Party”) prior to the Initial Term Expiration Date if it elects to
exit the Fault Tolerant Systems business upon two (2) full years prior written notice (the
“Cancellation Notice”) to the other party (the “Non-Canceling Party”), provided
that the effective date of such termination (“Cancellation Date”) may occur no earlier than
the fifth (5th) anniversary of FCS of the first Joint Product developed under this
Agreement.



     23.4 Termination Upon Mutual Agreement. The parties may terminate this
Agreement at any time upon mutual written agreement.



					
	 	 	 	 	 
	 
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     23.5 Effects of Termination. Upon any termination or expiration of this
Agreement, all rights and obligations of the parties shall terminate, except as expressly set forth
herein:



          a. Termination for Cause. If this Agreement is terminated for Cause pursuant to Section 23.2
above then:




               i. All licenses granted hereunder to the Terminating Party shall survive in accordance with
their terms except that the licenses and rights granted to the Terminating Party shall (i) continue
in perpetuity, (2) automatically be expanded to cover all Derivative Products of such Defaulting
Party and (3) automatically include the right to make Derivative Products without approval of the
Defaulting Party;



               ii. All licenses granted to the Defaulting Party shall (1) continue until the Initial Term
Expiration Date, provided, however, that such licenses shall be limited solely to the manufacture,
use, and sale of only the Joint Products, Gemini and Independent Derivative Products in each case
Generally Released prior to the date of termination, and (2) continue in perpetuity respecting such
activities reasonably necessary for the support and maintenance of Joint Products, Gemini and such
party’s Independent Derivative Products distributed or sold by it or its Affiliates. For the
avoidance of doubt the Defaulting Party’s licenses after the date of termination shall exclude the
right to make Derivative Products;



               iii. The Defaulting Party shall not, for a period extending from the effective date of
termination until the Initial Term Expiration Date (the “Termination Excluded Period”),
directly or indirectly, itself or through any Affiliate, agent, distributor or other entity,
develop, design, manufacture, market, promote, sell, offer for sale, lease, license, repair,
maintain or service any Fault Tolerant System, except and limited (1) to the manufacture, use, and
sale of (a) the Joint Products, Gemini and Independent Derivative Products in each case Generally
Released prior to the date of termination, (2) to the extent reasonably necessary for the support
and maintenance of Joint Products, Gemini and Independent Derivative Products distributed or sold
by it or its Affiliates prior to the date of termination, or (3) to the extent that it resells or
services Joint Products and Independent Derivative Products that it purchases from the Terminating
Party. Except as
expressly provided above in this Section 23.5.a., during the Termination Excluded Period the
Defaulting Party shall purchase all Fault Tolerant System requirements it may have only from the
Terminating Party; and



               iv. If NEC is the Defaulting Party NEC shall, within thirty (30) days of the date of
termination (a) transfer such development, design and manufacturing Know How and Manufacturing
Information, (b) conduct such engineering and manufacturing training for Stratus Personnel and (c)
deliver to Stratus such tools, test equipment, fixtures, prototypes, and other equipment, to enable
Stratus to design, develop, manufacture, support and service Joint Products and Derivative Products
that are Generally Released as of the date of Termination or are in any stage of design or
development as of the date of termination. The foregoing shall be provided to Stratus without
charge.



					
	 	 	 	 	 
	 
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          b. Cancellation. If this Agreement is terminated by a Canceling Party pursuant to Section 23.3
above, then:




               i. All licenses granted hereunder to the Non-Canceling Party shall survive in accordance with
their terms except that such licenses shall (1) continue in perpetuity (2) automatically be
expanded to cover all Derivative Products of such Non-Canceling Party and (3) automatically
include the right to make Derivative Products without approval of the Canceling Party;



               ii. Following the giving of a Cancellation Notice, the licenses granted to the Canceling Party
hereunder shall (1) continue until the Initial Term Expiration Date, provided, however, that such
licenses shall be limited solely to the manufacture, use, and sale of the Joint Products, Gemini
and Independent Derivative Products in each case Generally Released prior to the Cancellation Date,
and (2) continue in perpetuity respecting such activities reasonably necessary for the support and
maintenance of Joint Products, Gemini and such party’s Independent Derivative Products distributed
or sold by it or its Affiliates. For the avoidance of doubt the Canceling Party’s licenses after
the Cancellation Date shall exclude the right to make Derivative Products;



               iii. The Canceling Party shall continue to comply with each and every one of its obligations
under this Agreement, including all obligations respecting development of Joint Products during the
Cancellation Period and disclosure of Technology to the Non-Canceling Party;



               iv. The Canceling Party agrees that it shall not, for a period extending from the Cancellation
Date and until the Initial Term Expiration Date (the “Cancellation Excluded Period”),
directly or indirectly, itself or through any Affiliate, agent, distributor or other entity,
develop, design, manufacture, market, promote, sell, offer for sale, lease, license, repair,
maintain or service any Fault Tolerant System, except and limited (1) to the manufacture, use, and
sale of the Joint Products, Gemini and Independent Derivative Products in each case Generally
Released prior to the Cancellation Date, (2) to the extent reasonably necessary for the support and
maintenance of Joint Products, Gemini and Independent Derivative Products distributed or sold
by it or its Affiliates prior to the Cancellation Date, or (3) to the extent that it resells or
services Joint Products or Independent Derivative Products that it purchases from the Non-Canceling
Party. Except as provided above, during the Cancellation Excluded Period the Canceling Party shall
purchase all Fault Tolerant System requirements it may have only from the Non-Canceling Party; and



               v. In the case where Stratus is the Non Cancellation Party, and at Stratus sole written
election, NEC agrees to continue to manufacture and sell to Stratus under the Supply Agreement such
Products as were available for purchase by Stratus under the Supply Agreement immediately prior to
the Cancellation Date so long as NEC continues to manufacture (or has manufactured), such Products
for its resale purpose, directly or indirectly, subject to end of life notifications or through the
Initial Term Expiration Date whichever



					
	 	 	 	 	 
	 
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occurs first.. In such case the licenses granted NEC by Stratus shall survive to the extent
necessary to allow NEC to manufacture and sell the Products to Stratus.




          c. Mutual Termination and Expiration. If this Agreement is terminated by mutual agreement of
the parties pursuant to Section 23.4, or terminates due to expiration on the Initial Term
Expiration Date or at the expiration of any renewal term without further renewal, then:




               i. The licenses granted to each party under this Agreement shall survive in perpetuity (1) but
solely with respect to the manufacture, use, and sale of the Joint Products, Gemini and Independent
Derivative Products in each case that are Generally Released or determined to be Commercially Ready
for General Release as of the effective date of termination and (2) respecting such activities
reasonably necessary for the support and maintenance of Joint Products, Gemini and Independent
Derivative Products distributed or sold by it or its Affiliates.



          d. Any Termination or Expiration. In addition to the foregoing, the following provisions shall
apply to any termination or expiration of this Agreement:




               i. Any end user sublicenses granted by the a party or its Affiliates with respect to software
licensed hereunder and distributed in connection with Joint Products and Independent Derivative
Products shall continue in full force and effect provided such end users are not in default under
the relevant EULA;



               ii. Within thirty (30) days of such termination or expiration, each party shall destroy all
Confidential Information of the other party and all copies thereof as may be in its possession or
control. Each party shall provide the other with a written certification signed by a duly
authorized officer certifying to the effect that it or any Person claiming through it, no longer
has in its possession and/or control, any material or Confidential Information of the other party.
Notwithstanding the foregoing provisions of this clause (ii), each party may retain and continue to
use Confidential Information of the other party solely to the extent necessary to exercise the
licenses set forth in this Section 23, that survive any such termination or expiration;



               iii. To the extent it has not already done so, within twenty (20) days of such termination or
expiration, NEC shall provide to Stratus all Manufacturing Information for each Joint Product and
Derivative Product manufactured by or for NEC in the form in which it is most commonly used by NEC
(either electronic or digital files, or hard copy), unless Stratus requests another reasonable
format, and NEC shall comply with the provisions of Section 5.2 as though the relevant notice of
termination constituted a “Manufacturing Notice” thereunder. In the case Stratus is the Terminating
Party pursuant to Section 23.2 or Stratus is the Non-Canceling Party pursuant to Section 23.3, the
Manufacturing Information shall be provided to Stratus without any charge; and



					
	 	 	 	 	 
	 
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               iv. Notwithstanding the survival of any license following the termination or expiration of
this Agreement, (1) except as expressly provided in this Section 23, neither party shall be
required to transfer or disclose any Confidential Information or Technology (including software) to
the other party following the termination or expiration of this Agreement and (2) licenses under
any patents shall be limited to patents issued and licensed by the licensing party hereunder as of
the date of termination or expiration.



               v. Notwithstanding
any thing to the contrary contained in this Agreement, the obligations of
each party for providing software and hardware support as set forth in Exhibit E shall continue
until the earlier of the EOS date of a Product or five (5) years from the effective date of
termination or cancellation of this Agreement. All licenses shall continue beyond the effective
date of termination or cancellation respecting such activities reasonably necessary for the support
and maintenance of such Products.



     23.6 Remedies. In the event of a Material Breach of this Agreement by a party,
the other party shall be entitled to seek any and all legal and equitable remedies other than
termination of this Agreement (except as described in Section 23.2 above).



     Section 24. Force Majeure



     Excluding a party’s obligation to make payments hereunder, neither party shall be in breach of
its obligation hereunder or liable for damages for any delay or failure to perform under this
Agreement arising out of causes beyond its reasonable control and without its fault or negligence,
including without limitation, acts of God, acts of civil or military authority, strikes, fires,
riots, wars or embargoes. The party whose performance of this Agreement is affected by such force
majeure shall give prompt notice to the other party upon becoming aware of such force majeure and
any times for performance shall be deemed extended by a period of time equal to the delay directly
attributable to such force majeure.



     Section 25. Export Control Laws



     25.1 The Stratus Licensed Technology, the NEC Licensed Technology, and all Joint
Products, or any other technical information or any product produced therefrom is subject to any
law, regulation, order or other restriction on export or re-export, as may be imposed from time to
time by the United States and Japanese government or any agency thereof, or any other country
having jurisdiction.



     25.2 Neither party will knowingly export or re-export or cause to be exported or
re-exported, directly or indirectly, any technology or other technical information or software
provided to it hereunder, or any product thereof to any country for which the United States and
Japanese government, or any agency thereof, or any other country having jurisdiction, requires an
export or re-export license or other government approval at the time of export or re-export without
first obtaining any required license or approval.



					
	 	 	 	 	 
	 
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     Section 26. Governing Law



     The parties agree that this Agreement and the rights and obligations of the parties hereunder
shall not be governed by the United Nation Convention on Contracts for the International Sale of
Goods; rather the parties agree that this Agreement shall be construed in accordance with the
internal laws of the State of New York, U.S.A., without reference to its conflict of laws
principles.



     Section 27. Arbitration and Court Proceedings



     27.1 Except as noted in subsection 27.3 below, in the event of any dispute,
controversy or difference which may arise between the parties hereto out of or in connection with
or in relation to this Agreement, or the breach thereof, the parties hereto shall in the first
instance do their utmost to settle such dispute amicably.



     21.2 Where the parties fail to reach an amicable settlement within Thirty (30) days of
the written notice of its existence, given by either party to the other, then the dispute,
controversy or difference shall be finally settled by arbitration in accordance with the Rules of
the American Arbitration Association in New York, New York. All documents and proceedings shall be
in the English language. The award of the arbitration shall be final and shall be binding upon the
parties and shall not be subject to appeal to any court, and may be entered into the court of
competent jurisdiction for its execution forthwith.



     27.3 The parties acknowledge and agree that the foregoing binding arbitration
requirement shall not apply to any dispute, controversy, difference or claim concerning
Intellectual Property Rights or the rights and licenses granted hereunder (“Reserved Claims”). With
respect to the Reserved Claims, the parties shall be free to enforce their respective rights and
seek all available remedies in any court of competent jurisdiction, including claims for damages,
injunctive relief or similar equitable remedies. The parties further acknowledge and agree that
with respect to any dispute, controversy, difference or claim arising out of Section 18,
Confidential Information, the foregoing binding arbitration shall not preclude either party from
seeking any injunctive or similar equitable relief in any court of competent jurisdiction. The
parties further acknowledge and agree that neither this Section 27 nor any other provision of this
Agreement shall limit or
prevent a party from seeking in any court of competent jurisdiction the remedy of specific
performance.



     Section 28. Independent Contractors



     Each party represents that its relationship to the other as provided in this Agreement will be
as an independent contractor. Nothing contained herein or done pursuant to this Agreement will
constitute the parties as entering into a partnership or joint venture, or will constitute any
party as the agent of the other for any purpose or in any sense whatsoever.



					
	 	 	 	 	 
	 
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     Section 29. Transfer or Assignment



     Neither party shall have the right to assign this Agreement or its rights hereunder or
delegate its duties hereunder to a third party, without the prior written consent of the other
party, except either party shall have the right to assign this Agreement and its rights hereunder
and to delegate its obligations hereunder in connection with the transfer of all or substantially
all of its assets pursuant to a merger, consolidation or sale.



     Section 30. Payments



     30.1 Expenses. Each party is responsible for all its own costs for its own
work undertaken pursuant to the Development Program and this Agreement unless expressly stated
otherwise in this Agreement or any Exhibit hereto.



     30.2 Payment Terms. All amounts due hereunder shall be paid in United States
Dollars to a bank account specified in writing by the payee, by wire transfer of immediately
available funds. Any amount not paid when due shall bear interest at the rate of 1.5% per month or
the highest rate allowed by applicable law, whichever is lower. A party shall be entitled to
recover all costs of collection (including attorneys’ and collection agents’ fees) incurred to
collect amounts past due hereunder.



     Section 31. Taxes



     Each party shall be responsible for taxes assessed on the net income of such party.



     Section 32. OEM Royalty Payments



     In consideration of the licenses granted by each party to the other, the parties agree that
royalties shall accrue and be due and payable to the other party, for
each Royalty Unit sold,
leased or other wise transferred by a party or its Affiliates (the
“Selling Party”), directly or
indirectly, to a Royalty OEM, as set forth in Exhibit L.



     Section 33. Compliance With Laws



     33.1 Each Party agrees that it shall comply with all applicable federal, state, local,
national and international, laws, treaties, regulations and orders of any court or administrative
agency in connection with its performance under this Agreement including without limitation
environmental laws, rules, regulations, orders, and permits.



     33.2 NEC warrants that the Products as designed, developed and supplied by NEC under
this Agreement shall comply with applicable environmental law or regulation, including but not
limited to the Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances
in Electrical and Electronic Equipment, O.J. (L 19) (Jan. 27, 2003), as amended, and applicable
European Union Member State implementing legislation and regulation (“RoHS Directive). NEC hereby
further warrants to Stratus that the Products shall not contain any RoHS Restricted Substance in
concentrations in excess of the Maximum Concentration Values in any Homogenous Material, or are
exempt from coverage under an



					
	 	 	 	 	 
	 
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exemption to the RoHS Directive and otherwise are free of any Hazardous Substances as these terms
are defined by the RoHS Directive and any implementing regulations, and present no hazard to
persons or the environment.




     33.3 Each party shall indemnify and hold harmless the other party and its Affiliates
from and against any and all losses, liabilities, damages, claims, costs and expenses, including
but not limited to attorney fees, arising directly or indirectly from any failure to comply with
the requirements of this Section 33 or the any inaccuracy, misrepresentation or incompleteness of
any information furnished as part of compliance with this Section 33.



     Section 34. Non-Disturbance Agreement



     Promptly following the execution of this Agreement Stratus shall use its best effort to obtain
JP Morgan’s agreement to the Non Disturbance Agreement, substantially in the form attached hereto
as Exhibit M. The foregoing shall not be a condition to closing and Stratus shall not be in breach
of this Agreement nor shall it have any liability to NEC hereunder should it fail to obtain JP
Morgan’s agreement to the Non Disturbance Agreement provided it has used its best efforts to do so.
Best efforts shall not include (i) the payment of any fees or other sums, other than any reasonable
legal fees as may be incurred by JP Morgan in its review and consideration of the Non Disturbance
Agreement or (ii) the amendment of the Credit Agreement or the making of any other agreement with
JP Morgan that imposes on Stratus any material obligations, liabilities or commitments in addition
to those set forth in the Credit Agreement.



     Section 35. Miscellaneous



     35.1 Exhibits. All exhibits, appendices, or other attachments, referenced in
this Agreement shall be deemed to be incorporated herein and made a part hereof, provided that if
there is any inconsistency between this Agreement and the provisions of any exhibit, appendices, or
attachment, the provisions of this Agreement shall control.



     35.2 Enforceability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity and enforceability of any other provisions of this
Agreement, each of which shall remain in full force and effect. In addition, any such
invalid or unenforceable provision shall be deemed amended or replaced with a provision that
is valid and enforceable which achieves, to the fullest extent possible, the original intent and
objectives of the parties as reflected in the offending provision.



     35.3 Waivers, Amendments and Preservation of Remedies. This Agreement may not
be amended, superseded or canceled, and the terms hereof may not be waived, except by written
instrument signed by each of the parties hereto, or in the case of a waiver, by the party waiving
compliance. The failure of any party at any time or times to require performance of any provision
hereof shall in no manner affect the right of such party at a later time to enforce the same or any
other provision of this Agreement. No waiver of any condition or of the breach of any term
contained in this Agreement in one or more instances shall be deemed to



					
	 	 	 	 	 
	 
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be or construed as a further or continuing waiver of such condition or breach or waiver of any
condition or of the breach of any other term of this Agreement. Unless expressly set forth in this
Agreement, the rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies that any party may have at law or in equity, including but not limited to the
remedy of specific performance.




     35.4 Official Text. The official text of this Agreement shall be the English
language, and any interpretation or construction of this Agreement shall be based solely on the
English language official text.



     35.5 Headings. The heading and captions of this Agreement are for convenience
of reference only and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.



     35.6 Entire Agreement. This Agreement (including the documents and instruments
referenced herein) constitutes the entire agreement between the parties with respect to the subject
matter hereof, and there are no understandings or representations of any kind except as expressly
set forth herein.



     IN WITNESS WHEREOF, the authorized representatives of Stratus Technologies Bermuda Ltd. and
NEC Corporation have caused this Agreement to be executed in two originals as of the dates
indicated below



	 	 	 	 	 	 	 	 	 	 	 	 

	NEC CORPORATION	 	STRATUS TECHNOLOGIES BERMUDA LTD.
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Masahzko Yamamoto	 	By:	 	/s/ David Lauvello
	 	 	 	 	 	 	 
	 

	 	Name:
	 	MASAHZKO YAMAMOTO
	 	 	 	Name:
	 	David Lauvello
	 

	 	Title:
	 	SENIOR VICE PRESIDENT
	 	 	 	Title:
	 	Duly Authorized Representative
	 

	 	Date:
	 	November 25, 2005
	 	 	 	Date:
	 	November 25, 2005






					
	 	 	 	 	 
	 
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