Exhibit
10.11


 


[Confidential]


 


 


SALE AND PURCHASE AGREEMENT


 


FOR VITESSE PATENTS


 


 


BETWEEN


 


 


VITESSE SEMICONDUCTOR CORPORATION


 


 


AND


 


************


 


1

















 


SALE AND PURCHASE AGREEMENT


FOR VITESSE PATENTS


 


This Sale and Purchase Agreement for Vitesse
Patents (“Agreement”) is entered into by and between Vitesse Semiconductor
Corporation, a Delaware corporation, having a place of business at 741 Calle
Plano, Camarillo, CA 93012 (“Vitesse”) and *******, a ******** corporation,
having a place of business at ********************************************
(“Purchaser”), individually a “Party” and collectively the “Parties”.


 


WHEREAS,
Vitesse is the owner of Vitesse Patents (as defined herein);


 


WHEREAS,
Purchaser desires to purchase said Vitesse Patents from
Vitesse; and


 


WHEREAS,
Vitesse is willing to sell said Vitesse Patents to
Purchaser for due consideration, subject to the terms and conditions of this
Agreement.


 


NOW, THEREFORE,
for good and valuable consideration as stated herein, the receipt and sufficiency of which are hereby
acknowledged, Vitesse and
Purchaser hereby agree as follows:


 


DEFINITIONS


 


Assignment Date
as to the Vitesse Patents (as defined herein) means the Effective Date
on which Vitesse has executed the Patent Assignment (as defined herein) for the
Vitesse Patents pursuant to Article 3.1 hereof.


 


Closing Date means the date on which Vitesse has assigned and
recorded the Patent Assignment pursuant to Article 3.2 and Purchaser has
paid Vitesse the Purchase Price (as defined herein) pursuant to Article 2.


 


Effective Date
means the date on which both Parties have signed this Agreement and Vitesse has signed the Patent Assignment
pursuant to Article 3.1.


 


Patent Assignment
means a sale and assignment by Vitesse of the Vitesse Patents to Purchaser.


 


Affiliate of a Party
means a corporation, company or other entity that controls, is controlled by,
or is under common control with a Party or its successor in interest.  “Control” for the purpose of this paragraph
means ownership of at least fifty percent (50%) of the equity or beneficial
interest of such entity.  An entity is an Affiliate of a Party to this
Agreement solely for so long as such Control exists.


 


Vitesse Patents  means
those Vitesse patents listed in Appendix 1 to this Agreement, and the patent rights to all inventions and
discoveries claimed therein plus any and all related patents, patent
applications, extensions, divisionals, continuations, continuations-in-part,
reissues, reexaminations, substitution and foreign counterparts of any of the
foregoing.  For purpose of clarification,
all future applications that claim priority, in whole or in part, to any of the
Vitesse Patents shall be solely owned by Purchaser.


 


2

















 


ARTICLE 1 – AGREEMENT FOR SALE
AND PURCHASE


 


1.1           Agreement
to Sell: Subject to the terms and conditions of
this Agreement, Vitesse hereby agrees to sell, transfer and assign to Purchaser all of Vitesse’s right, title and interest in and
to the Vitesse Patents, including, without limitation,
(a) the
right to sue and collect
for past, current and
future infringement by third parties of such
Vitesse Patents, including the right to license and to collect and receive any damages,
royalties, injunctive relief, and/or settlements for such infringements of such
Vitesse Patents, and (b) sue under any past, current or future patent
causes of actions relating to any of the inventions or discoveries described or
claimed in the Vitesse Patents.  For
purpose of clarification, with respect to the sole right to sue, which is
assigned and transferred to Purchaser herein, Vitesse hereby expressly
disclaims any and all rights to sue or otherwise enforce such Vitesse Patents.


 


1.2           Agreement
to Purchase: Subject to
the terms and conditions of this Agreement, Purchaser hereby agrees to purchase
and assume the Vitesse Patents from Vitesse.


 


ARTICLE 2 – PAYMENT


 


2.1           Price:
Subject to the
assignment of the Vitesse Patents to Purchaser pursuant to Article 3.1 on
the Effective Date and recordation of the same pursuant to Article 3.2, Purchaser
shall pay Vitesse a non-refundable price of eight million two hundred fifty
thousand United States Dollars (US$8,250,000.00) (“Purchase Price”) in
consideration for the sale, transfer and assignment of the Vitesse Patents to
Purchaser hereunder.  For the convenience
of the Parties, however, Purchaser may pay to Vitesse within fifteen (15) days of the Effective Date, provided that Vitesse must have
first assigned the Vitesse Patents to Purchaser pursuant to Article 3.1
below, record the assignment pursuant to Article 3.2 below, and issue an
invoice in the form of the invoice attached hereto as Appendix 5 to allow
Purchaser to process payment.


 


2.2           Taxes:


 


(1)           The
Price does not include any sales, use or other similar taxes that may be
applicable, which, if any, shall be paid and borne by Purchaser.


 


(2)           Notwithstanding
the foregoing, Purchaser confirms that Purchaser will not withhold taxes on the
Purchase Price unless specifically directed to do so for this specific
transaction by the ******* governmental authorities, in which case Purchaser
shall promptly provide Vitesse with tax certificate and/or receipt issued by
the relevant tax authorities showing that any such tax has been paid.


 


(3)           The
stamp taxes, if any, imposed on the original copy(ies) of this Agreement shall
be borne by Purchaser.


 


2.3           Payment:
All payments due under this Agreement shall be sent by electronic transfer to
the following bank account or to such other bank account as Vitesse may specify
in writing:


 


Wells Fargo Bank


Routing/transit #*******


Account Number: *******


Account Name: Vitesse Main Operating
Account


 


3

















 


ARTICLE 3 – ASSIGNMENT


 


3.1           Assignment:  Vitesse will, on the Effective Date of this Agreement and at
its expense, execute and deliver to Purchaser, a Patent Assignment, in the form
attached hereto as Appendix 2, for the Vitesse Patents for the benefit of
Purchaser.  For the convenience of the Parties, however,
Vitesse may deliver the foregoing assignment to the Purchaser via facsimile on
the Effective Date.  Vitesse shall deliver the original copy of the assignment agreement to
the Purchaser no later than the Closing Date.
 If there is any
inconsistency between any such Patent Assignment(s) and the terms and
conditions of this Agreement, the latter shall prevail.


 


3.2           Recordation
of Assignment: Within fifteen (15) days of the Effective Date of this Agreement,
Vitesse
shall, at its expense, apply for the recordation or other perfection of the
assignment under Article 3.1 with all relevant Government Agencies, send a copy of the foregoing application and/or
perfection to the Purchaser, and use all
diligence to complete the recordation or perfection as promptly as possible.


 


ARTICLE 4 – ADDITIONAL OBLIGATIONS


 


4.1           Further Assistance In
Effectuating Transfer Of Rights:  At the reasonable request of
Purchaser and without demanding
further consideration from Purchaser, Vitesse agrees to execute and deliver such other instruments
and perform such other acts and things as may be reasonably necessary for
effecting completely the consummation of the transfer of ownership in and to
the Vitesse Patents as contemplated hereby, including without limitation
execution, acknowledgment and recordation of other such papers, and using
reasonable efforts to obtain the same from the respective inventors, as
necessary or desirable for fully perfecting and conveying unto Purchaser the benefit of the transfer of ownership in and to
the Vitesse Patents as contemplated hereby.


 


4.2           Further Assistance In
Prosecution Matters:  Vitesse agrees, upon the reasonable
request of Purchaser, to do all things
necessary, proper, or advisable, including without limitation the execution,
acknowledgment and recordation of specific oaths, declarations and other
documents on a country-by-country basis, to assist in obtaining, perfecting, further prosecuting and/or sustaining the Vitesse Patents.  Such assistance may also include providing,
and obtaining from the respective inventors (to the extent such inventors are
then employed by Vitesse), prompt
production of pertinent facts and documents, execution of petitions, oaths,
powers of attorney, declarations or other papers and other assistance
reasonably necessary for filing patent applications, complying with any duty of
disclosure, and conducting prosecution, reexamination, reissue, interference or
other priority proceedings, opposition proceedings, cancellation proceedings,
and the like with respect to the Vitesse Patents.


 


Vitesse further agrees, that upon reasonable request, Purchaser shall be, to the extent the same are in the
possession, custody, or control of Vitesse and can be located, entitled to examine,
make copies, and/or take possession of those relevant portions of laboratory
notebooks and related documents and things as are reasonably necessary and
required to 


 


4

















 


enable Purchaser to prosecute
the application for any Vitesse Patents. 
Such documents and things referenced in this Article include, without limitation,
information relating to the conception and/or reduction to practice of any
Vitesse Patents.  To the extent such
documents and things currently exist, Vitesse further agrees to maintain
such records intact consistent with its policy for records retention.


 


Vitesse agrees and consents to Purchaser retaining Vitesse’s existing patent prosecution
counsel for the purpose of continuing such counsel’s efforts in connection with
prosecution and maintenance of the patents.


 


4.3           Further Assistance in Litigation or Other Matters:  In the event
that the validity and/or enforceability of any of the Vitesse Patents is challenged by any third party or any
competent authority, and provided the basis of the challenge relates to
information that is not otherwise publicly available and that may be in the
possession Vitesse or any inventor
listed as an inventor of such Vitesse Patents, then Vitesse shall use commercially reasonable efforts to
make such inventor available to Purchaser for consultations on such Vitesse Patents or providing declaration, testimony or other
assistance in such litigation or other matters, if the inventor is employed by
Vitesse.  In the event that the inventor no longer works for Vitesse, Vitesse
agrees to use reasonable efforts to locate such inventor’s contact information
for Purchaser upon
request.


 


4.4           Maintenance And
Other Fees:  Vitesse shall (i) pay
any maintenance fees, annuities, and the like that become due on the Vitesse
Patents after the Effective Date and up to the Closing Date and Purchaser shall reimburse Vitesse for any such
payments made by Vitesse; (ii) provide, on or before the Closing Date, a
list to Purchaser of the dates on which any
such fees, annuities and the like will become due during the two (2) month
period following the Closing Date; and (iii) shall otherwise use its
reasonable best efforts to assist Purchaser in preventing
abandonment or delay in fee payments of the Vitesse
Patents for the two (2) month period following the Closing Date.


 


Vitesse shall be responsible for
all invoices, expenses, and fees pending to outside prosecution counsel or
agents existing on the Effective Date.


 


4.5           In-House And Outside
Prosecution Files:  Vitesse shall be responsible for all
costs and expenses associated with the transfer of prosecution-related files
from Vitesse to Purchaser.


 


On the Closing Date, Vitesse shall send to Purchaser each patent prosecution (docket) file in its
possession for each of the Vitesse Patents. 
On the Effective Date, Vitesse shall also
send letters to each outside counsel then retained by Vitesse (or prior counsel
if none) responsible for the preparation and prosecution of any Vitesse Patents
informing such firm that Vitesse has assigned
all of Vitesse’s right, title
and interest in and to any files maintained by such firm for the purpose of the
preparation and prosecution of the Vitesse Patents to Purchaser and directing that such firm (i) immediately
take direction from Purchaser regarding
sending all copies of such files to Purchaser; (ii) not
retain copies of such files; and (iii) invoice Vitesse for all
pending costs and expenses pending on the Effective Date. From and after the
presentation of such letter, Purchaser shall be
responsible for all actions necessary to secure such files and Purchaser shall be 


 


5

















 


responsible for all normal and customary fees charged by such firms in
securing such files from such firms.  If
necessary, Vitesse agrees to thereafter assist
Purchaser  in
a timely fashion in procuring all such files from all such outside
counsel.


 


On the Closing Date, Vitesse shall also
send Purchaser originals of all assignment
agreements in its possession for the Vitesse Patents.


 


4.6           Assistance:  Except as expressly provided in this Agreement, Vitesse shall have no obligation to provide
Purchaser with any other assistance unless agreed otherwise by Parties hereto.


 


ARTICLE 5 – RESERVATION OF RIGHTS


 


5.1           Vitesse’s
License: Effective upon Purchaser’s acquisition of the entire right,
title and interest in and to the Vitesse Patents, Purchaser
hereby grants to Vitesse and Vitesse’s Affiliates a non-exclusive, revocable, non-assignable, non-divisible, worldwide,
fully-paid-up, royalty-free, perpetual right and license to the Vitesse Patents
for the full life of such Vitesse Patents to make, have
made, use, import, sell, offer to sell, or otherwise transfer any product encompassed by or embodying one or more
claims of the Vitesse Patents, provided, in the event Vitesse is dissolved,
liquidated, acquired by, merged into, or sells substantially all of its stocks
and/or assets to another entity, this license under Article 5.1 shall be
immediately limited to Vitesse products at the time of said dissolution, liquidation,
acquisition, merger, or sale, excluding future versions or successors that
include major functional enhancements.  Except as provided in this Agreement, Vitesse
shall have no right to sublicense, license, assign or grant any right
whatsoever to any entity under the Vitesse Patents.  This grant-back license to Vitesse and
Vitesse’s Affiliates shall continue and survive for the benefit of Vitesse and
Vitesse’s Affiliates in the event of any transfer, dissolution, or sale, in
whole or in part, of Purchaser, its assigns, and successors-in interest, and
any transfer of any enforcement rights in any of the Vitesse Patents shall be
made subject to such license.


 


Purchaser agrees that
any subsequent transfer (including the grant of exclusive licenses) of any
Vitesse Patents by Purchaser or its direct or indirect successors and assigned
(including exclusive licensees) shall be made subject to such right and
license.


 


5.2           No
Need for Maintenance of Patents: The
provisions of Articles 5.1 shall not be construed to obligate Purchaser to
maintain any of the Vitesse Patents in force or to defend any action, suit or
other proceeding brought by a non-Party which challenges or concerns the scope,
term, validity or enforceability of any of the Vitesse Patents.


 


5.3           No
Implied License: Except as
specifically set forth in this Agreement, no license or other right is granted
or implied, either directly or indirectly, by implication or estoppel or
otherwise by this Agreement, to either Party under any
patent, copyright or other intellectual property right of the other Party.


 


6

















 


ARTICLE 6 – WARRANTIES,
INDEMNIFICATION AND


LIMITATION OF LIABILITY


 


6.1           Vitesse hereby
represents and warrants to Purchaser as follows:


 


(1)           Authority.  Vitesse has the full,
sole, and exclusive right and authority to enter into this Agreement and to carry out its obligations hereunder.


 


(2)           Title and
Contest.  Vitesse has good and
marketable title to the Vitesse Patents, including without limitation all
rights, title, and interest in the Vitesse Patents to sue for infringement
thereof, and prior to the Closing Date the Vitesse Patents will be free and
clear of all liens, mortgages, or security interests  which would
restrict, in whole or in part, the transfer of the Vitesse Patents.  Prior
to the Closing Date, Vitesse will provide Purchaser with a copy of an executed
lien release for the lien on the Vitesse Patents and Vitesse Patents will be
free and clear of any and all liens, mortgages or securities interests.  Vitesse has not received notice of
(and Vitesse is not aware of any facts
or circumstances which could reasonably be expected to give rise to) any other
actions, suits, investigations, claims or proceedings threatened, pending or in
progress relating in any way to the Vitesse Patents.


 


(3)           Encumbrances. The Vitesse Patents will be, upon assignment and
transfer, free of any encumbrance or licenses (including, without limitation,
covenants not to sue, government grants, identifications to standard committees,
or any other restriction on the rights relating to the Vitesse Patents)
*************************.


 


(4)           Conduct.  To Vitesse’s knowledge,
none of Vitesse or its representatives has
engaged in any conduct, or omitted to perform any necessary act, the result of
which would invalidate any of the Vitesse Patents.


 


(5)           Patent Office Proceedings.  None of the Vitesse Patents have been or, to
Vitesse’s Knowledge (as defined herein), are currently involved in any
reexamination, reissue, interference proceeding, or any similar proceeding and
that no such proceedings are pending or threatened. As used in this Article 6.1, the term “Knowledge”
is defined to mean Vitesse will be deemed to have “Knowledge” of a particular
fact or other matter if Vitesse is actually aware of that fact or matter or a
prudent entity could be expected to discover or otherwise become aware of that
fact or matter in the course of conducting a reasonably comprehensive
investigation.


 


(6)           Fees.  All maintenance fees, annuities, and the like
due on the Vitesse Patents have been timely paid through the Closing Date.


 


(7)           Validity
and Enforceability. 
To  Vitesse’s knowledge,
the Vitesse Patents have never been found invalid or unenforceable for any
reason in any administrative, arbitration, judicial or other proceeding.


 


(8)           Other.  Vitesse agrees: (i) not to challenge the validity
or enforceability of the issued patents or, if any, presently pending
applications for patents comprising the Vitesse 


 


7

















 


Patents; and (ii) not
to assist any third party (except as necessary to comply with any court order,
statute, or regulation requiring production of documents or testimony or absent
Purchaser’s express written consent) in any analysis concerning
the infringement or non-infringement of the Vitesse Patents, or to challenge
the validity or enforceability of the Vitesse Patents.


 


6.2           Purchaser hereby
represents and warrants to Vitesse as follows:


 


(1)           Authority.  Purchaser has the full,
sole, and exclusive right and authority to enter into this Agreement and to carry out its obligations hereunder.


 


6.3           Except as expressly provided
in this Article 6, nothing in this Agreement shall be construed as:


 


(1)  A warranty or representation by any Party as to the validity,
enforceability, or scope of any patent; or


 


(2)  A warranty or representation that anything made, used, sold
or otherwise disposed of under any license granted herein is or will be free
from infringement of patents of third persons or parties; or


 


(3)  A requirement that any Party shall file any patent
application, secure any patent, or maintain any patent in force (except as
provided in Article 4 of this Agreement); or


 


(4)  An obligation to bring or prosecute actions or suits against
third parties for infringement of any patent; or


 


(5)  An obligation to furnish any manufacturing or technical
information (except as provided in Article 4 of this Agreement); or


 


(6)  Conferring a right to use in advertising, publicity, or
otherwise any trademark or trade name.


 


6.4           AS TO THE SUBJECT MATTER OF
THIS AGREEMENT, AND EXCEPT AS EXPRESSLY
PROVIDED IN THIS ARTICLE 6, NO PARTY
MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, OR ASSUMES ANY RESPONSIBILITIES WHATSOEVER WITH RESPECT TO THE
COMMERCIAL SUCCESS, USE, SALE, OR OTHER DISPOSITION BY OR FOR ANY OTHER PARTY
(OR ITS AFFILIATES) OF THE VITESSE PATENTS OR
PRODUCTS INCORPORATING OR MADE BY THE USE OF INVENTIONS OF THE VITESSE PATENTS.


 


6.5           Indemnification
by Vitesse:
Vitesse
agrees to indemnify, defend and hold Purchaser, its Affiliates and their
respective officers, directors, employees, distributors, agents, successors and
assigns harmless from (i) any third party
claims against Purchaser, its Affiliates and their respective
officers, directors, employees, distributors, agents, successors and assigns arising
out of, or related to, the transactions contemplated by this Agreement; and/or (ii) any breach by Vitesse of any
terms and conditions of this 


 


8

















 


Agreement, including,
without limitation, the representations and warranties as set forth under Article 6.1.


 


6.6           Limitation
of Liability: EXCEPT FOR BREACHES OF THE CONFIDENTIALITY
OBLIGATIONS UNDER ARTICLE 7, IN NO EVENT SHALL
EITHER PARTY
BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RELATE IN ANY WAY TO THIS AGREEMENT,
WHETHER IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHER, VITESSE’S MAXIMUM AND AGGREGATE LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE PRICE ACTUALLY PAID BY
PURCHASER TO VITESSE PURSUANT TO ARTICLE 2.1. 
FOR THE PURPOSES OF THIS SECTION, EACH
PARTY SHALL BE DEEMED TO INCLUDE ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, AGENTS, AND SUBCONTRACTORS.


 


ARTICLE 7 – CONFIDENTIALITY


 


7.1           Confidentiality:
Other than by recordation of the Patent Assignment, the Parties each
shall not disclose the existence, subject matter or terms of this Agreement to
any third party except: (a) with the prior written consent of the other
Party; (b) as otherwise may be required by law, legal process,
governmental or stock exchange regulations, FASB rules, or requested by an
administrative agency, or in accordance with generally accepted accounting
principles, including in confidence to legal, financial advisors (including
outside auditors), and insurers in their capacity of advising the Party in such
matters; (c) during the course of litigation, so long as the disclosure of
such terms are restricted in the same manner as is the confidential information
of other litigating parties or to the extent necessary to enforce the Vitesse
Patents; or d)
in confidence to its legal counsel, accountants, auditors, advisors, brokers,
insurers, banks and financing sources, and potential acquirers of the party, in
whole or in part, and their advisors, provided that in (b), (c) and (d) above,  the disclosing party (i) shall use all
legitimate and legal means available to minimize the disclosure to third
parties, including without limitation seeking a confidential treatment request
or protective order whenever appropriate or available; and (ii) shall, to
the extent practical, provide the other party with at least ten (10) days
prior written notice of such disclosure.


 


ARTICLE 8 – EFFECTIVE DATE AND
TERMINATION


 


8.1           Effective
Date: This Agreement shall become effective
as of the Effective Date.


 


8.2           Termination
for Breach, etc.:  Either
may terminate this Agreement by written notice to the other Party
if a Party
commits a material breach of the Agreement and does not
correct such breach within thirty (30) days after receiving written notice
complaining thereof.  In addition, any purported
sublicense or assignment by Vitesse or any of its Affiliates of all or part of
the license granted under this Agreement in violation of Article 5.1 of
the Agreement shall be deemed a breach of the Agreement and shall entitle
Purchaser, upon notice and a five (5) business day opportunity to cure, to
terminate the license set forth in Article 5.1 of this Agreement.


 


9

















 


8.3           Surviving
Provisions: The
provisions of Articles 4.1 through 4.5, Articles 5.1
through 5.3,
Articles 6.1
through 6.6, Article 7.1, Article 8.3, and Articles
9.1 through 9.11 shall survive any termination of this Agreement.


 


8.4           No
Election of Remedies: The right of
termination provided for herein is not in lieu of, but is in addition to, any
other remedies available under applicable law


 


ARTICLE 9 – GENERAL PROVISIONS


 


9.1           Notices:
All notices required or permitted to be given hereunder shall be in writing and
shall be delivered by hand, or if dispatched by prepaid air courier or by
registered or certified airmail, postage prepaid, addressed as follows:


 


If to Vitesse:


 


VITESSE SEMICONDUCTOR CORPORATION


741 Calle Plano


Camarillo, CA 93012


Attention: General Counsel


 


If to Purchaser:


 


*************


*************


*************


*************


Attention: General Counsel


 


Such notices shall be deemed to have been served
when received by addressee or, if delivery is not accomplished by reason of
some fault of the addressee, when tendered for delivery.  Either Party may change its address by a
notice given to the other Party in the manner set forth above.


 


9.2           Article Headings:
Article headings are inserted for convenience purposes only and shall not
affect the interpretation of the Articles.


 


9.3           Drafted Jointly:
Each of the Parties has participated in the negotiation and drafting of this Agreement.  In the event that any ambiguity or question
of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by all Parties and no rule of
construction, presumption or burden of proof shall arise favoring one Party concerning
the interpretation of ambiguous provisions or otherwise by virtue of one Party’s
presumed authorship of this Agreement or any
provision hereof


 


9.4           Compliance:
Each Party agrees to comply and to reasonably assist the other in complying
with applicable export/import control laws, rules and regulations as they
apply to this Agreement, including, without limitation, those related to the
transfer of the Vitesse Patents to Purchaser.


 


9.5           No
Agency: Nothing contained in this Agreement, or
done in pursuance of this Agreement, shall constitute the Parties entering upon
a joint venture or partnership.  


 


10

















 


Neither Party shall have the authority to bind
or make commitments on behalf of the other Party for any purpose.


 


9.6           No
Rule of Strict Construction: Regardless of
which Party may have drafted this Agreement, no rule of strict
construction shall be applied against either Party.


 


9.7           Illegal
Provisions: If any
provision of this Agreement is held invalid, illegal or unenforceable by any
court of law, the Parties agree such holding shall not affect either the
validity of this Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a valid, legal and
enforceable provision most closely reflecting the intent and purpose of the
original provision.


 


9.8           Governing
Law: This Agreement is governed by the laws
of the State of California, without regard to the conflict of laws provisions
thereof. Any suits or actions arising out of this Agreement shall only be
brought in the United States District Court for the Northern District of
California, and the Parties agree to submit to the jurisdiction thereof.


 


9.9           Amendment:
Any amendment or modification of this Agreement shall be in writing and shall
not be effective unless signed by authorized representatives of both Parties.


 


9.10         No
Waiver: No waiver of any rights will be
effective unless assented to in writing by the Party to be charged, and no
waiver of any breach or default will constitute a waiver of any other right
hereunder or any subsequent breach or default.


 


9.11         Entire
Agreement: This Agreement, including the
Appendices, is the complete and exclusive agreement between the Parties
regarding the subject matter hereof and supersedes any prior oral or written
communications or understandings between the Parties.


 


 


IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly signed in duplicate originals as of the dates written
below.


 


 


	
  Vitesse Semiconductor
  Corporation

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  :

  	
   

  	
   

  	
  By

  	
  :

  	
   

  
	
  Name

  	
  :

  	
   

  	
   

  	
  Name

  	
  :

  	
   

  
	
  Title

  	
  :

  	
   

  	
   

  	
  Title

  	
  :

  	
   

  
	
  Date

  	
  :

  	
   

  	
   

  	
  Date

  	
  :

  	
   

  



 


11














 


Appendix 1


Vitesse Patents


 


	
  Country

  	
   

  	
  Patent

  No.

  	
   

  	
  Application

  No.

  	
   

  	
  Title

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US

  	
   

  	
  *************

  	
   

  	
  *************

  	
   

  	
  *************

  



 


12

















 


Appendix 2


Form of Assignment


(Beginning on following page)


 


13

















 


ASSIGNMENT


 


WHEREAS, VITESSE SEMICONDUCTOR CORPORATION,
a Delaware corporation, having a place of business at 741 Calle Plano,
Camarillo, CA 93012 (hereafter called “ASSIGNOR”) is the assignee of record for
the following U.S. patents:


 


U.S. Patent No. ********,
issued ********, for an invention entitled ********;


U.S. Patent No. ********,
issued ********, for an invention entitled ********;


U.S. Patent No. ********,
issued ********, for an invention entitled ********;


U.S. Patent No. ********,
issued ********, for an invention entitled ********;


U.S. Patent No. ********,
issued ********, for an invention entitled ********;


U.S. Patent No. ********,
issued ********, for an invention entitled ********.


 


AND WHEREAS,
******** a ********corporation,  having a place of business at ********  (hereafter “ASSIGNEE”) wants to acquire
Assignor’s entire right, title and interest in and to said above-listed patents
and all the inventions therein, as well as the right of action and all other
rights, including the right to sue or otherwise bring action and to collect and
receive damages therefrom, for past, present, and future infringement thereof,
and ASSIGNOR is willing to enter into such assignment.


 


NOW, THEREFORE,
in accordance with and for good and valuable consideration conveyed pursuant to
an agreement between the parties, the receipt and sufficiency of which is
hereby acknowledged, ASSIGNOR did and hereby does sell, assign, transfer and
set over to ASSIGNEE  its entire right,
title and interest in and to the above-listed patents and all continuations,
divisions, reexaminations, reissues and substitutes thereof, and all inventions
therein, including the right to sue or otherwise bring action and to collect
and receive damages therefrom, for past, present, and future infringement
thereof;


 


 


IN TESTIMONY WHEREOF,
I hereunto set my hand this
             day of
                                    ,
2009.


 


 


	
   

  	
  Vitesse Semiconductor
  Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


On                            before
me,                                                   ,
personally appeared
                                            ,
proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to 


 


14

















 


me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.


 


WITNESS my hand and
official seal.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public in and for said County and State

  



 


15

















 


Appendix 3


[Intentionally
Omitted]


 


16

















 


Appendix 4


Unexecuted Technology and License
Agreement


(Beginning on following page)


 


********


 


17

















 


Appendix 5


Form of Invoice


(Beginning on following page)


 


18

















 


	
   

  	
   

  	
   

  	
   

  	
    

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VITESSE
  SEMICONDUCTOR CORP

  	
   

  	
   

  	
   

  	
   

  
	
  741 CALLE PLANO

  	
   

  	
   

  	
   

  	
  PROFORMA
  INVOICE

  
	
  CAMARILLO, CA
  93012

  	
   

  	
   

  	
   

  	
  RMC20090630

  
	
  USA

  	
   

  	
   

  	
   

  	
   

  
	
  Tel: (805) 388-3700

  	
   

  	
   

  	
   

  	
   

  
	
  Fax: (805) 445-2289

  	
   

  	
   

  	
   

  	
  DATE          30-Jun-09   

  



 


	
  BILL TO:

  	
   

  	
  1978

  	
   

  	
   

  	
   

  	
  SHIP TO:

  	
   

  	
  1978

  	
   

  	
   

  	
   

  
	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SALESPERSON

  	
   

  	
  SALES

  ORDER

  	
   

  	
  PURCHASE
  ORDER

  	
   

  	
  DATE
  SHIPPED

  	
   

  	
  SHIPPED
  VIA

  	
   

  	
  TERMS

  	
   

  
	
  *. *****

  	
   

  	
  NA

  	
   

  	
  Per Agreement called out below

  	
   

  	
  6/30/2009

  	
   

  	
  NA

  	
   

  	
  NET 15 DAYS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QUANTITY

  	
   

  	
  PART

  NUMBER

  	
   

  	
  DESCRIPTION

  	
   

  	
  UNIT PRICE

  	
   

  	
  TOTAL

  	
   

  
	
  Lot

  	
   

  	
  Vitesse Patents

  	
   

  	
  Patent Sales & Purchase

  	
   

  	
   

  	
   

  	
  $

  	
  8,250,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VITESSE FEDERAL I.D.# **-*******

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WIRE TRANSFER DIRECTIONS:

  	
   

  	
  SUBTOTAL

  	
   

  	
  $

  	
  8,250,000.00

  	
   

  
	
  TO: WELLS FARGO BANK

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ROUTING & TRANSIT #: *********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FOR CREDIT OF: VITESSE MAIN
  OPERATING ACCOUNT

  	
   

  	
  SALES TAX

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  CREDIT ACCOUNT #: **********

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BY ORDER OF: NAME OF SENDER AND
  INVOICE NUMBERS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SHIPPING &
  HANDLING

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OTHER

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  $

  	
  8,250,000.00

  	
   

  



 


19