{"id":42416,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/kaleida-restructuring-agreement-apple-computer-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"kaleida-restructuring-agreement-apple-computer-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/kaleida-restructuring-agreement-apple-computer-inc-and.html","title":{"rendered":"Kaleida Restructuring Agreement &#8211; Apple Computer Inc. and International Business Machines Corp."},"content":{"rendered":"<pre>               KALEIDA RESTRUCTURING AGREEMENT\n                    BETWEEN APPLE AND IBM\n\nThis is a Restructuring Agreement (hereinafter 'Agreement') made effective\nNovember 16th, 1995, between Apple Computer, Inc. (hereinafter 'Apple'), a\nCalifornia corporation having its principal place of business in Cupertino,\nCalifornia, and International Business Machines Corporation ('IBM') a New\nYork corporation having its principal place of business in Armonk, New\nYork.\n\n1.   GENERAL PLAN\n\n1.1  Apple and IBM are the two principal shareholders in, and have in the\npast been the sole providers of funds to, Kaleida Labs, Inc. ('Kaleida'), a\nDelaware corporation having its principal place of business in Mountain\nView, California.  The parties have decided to make fundamental changes in\nKaleida (hereinafter called the 'Restructuring').  Both parties intend to\ncontinue to use Kaleida's ScriptX technology, but to do so in a more\nefficient and cost effective manner.  The parties have agreed that they\nwill cause Kaleida to cease to exist as a separate operating entity,\nalthough Kaleida will continue as a legal entity.  At some later date, the\nparties may decide to formally dissolve Kaleida, Kaleida employees,\ncustomers and the public will begin to be informed of the planned changes\non approximately 11\/16\/95.  Effective approximately 1\/16\/96, Kaleida will\nhave no employees and will cease its operations.\n\n1.2  Apple plans to hire a 'Core Team' of approximately 10 to 15 Kaleida\nemployees to continue maintenance and enhancements to ScriptX, which will\nbe subject to a separate ScriptX Development and License Agreement ('SDLA')\nbetween Apple and IBM.  The parties' obligations and rights relating to\nthis continuing maintenance and enhancements to ScriptX will be as defined\nin that SDLA.\n\n2.   TRANSITION\n\n2.1  It is anticipated that the phasing out of Kaleida's operations will\nextend from the current date until some uncertain period of time after\nKaleida ceases its operations (hereinafter called the 'Transition Period').\nThe parties will cause their representatives to oversee the termination of\nKaleida employees, deal with customer claims and support issues, and in\ngeneral manage all other aspects of the Restructuring.  The parties will\njointly manage the Restructuring during the Transition Period with a\nTransition Team comprised of people with financial, technical, legal, human\nresources and other necessary skills from each of the parties.  Mr. David\nNagel of Apple and Mr. Steven Mills of IBM, or their designees, will\nresolve any disagreements that the Transition Team cannot resolve.  This\nTransition Team will develop and implement action plans to resolve all\nissues, will quickly respond to new issues, and will track all issues until\nresolved,\n                             136\n\n\n2.2  All costs of the Restructuring through the Transition Period are\nsubject to approval by both parties, including such costs as separation\npayments to employees, customer and other third party claims, settlement of\nToshiba's share for liquidation\/ dissolution value, administrative\nexpenses, other Kaleida debts, legal and other fees, etc.  Payment of such\ncosts shall be initially made from Kaleida funds.  If such funds are\ninsufficient, the parties intend to provide such additional funds as are\napproved by the parties, split equally between Apple and IBM.  The parties\ndo not intend to make the 4th quarter 1995 payment to Kaleida according to\nthe existing Funding Agreement.  The parties will develop a process to\ncompensate each other for a pro rata share of any agreed to restructuring\ncosts that are expended directly by one party.\n\n2.3  In addition, the parties may agree to retain the services of certain\nformer Kaleida employees on a part time basis after 1\/16\/96 to assist in\nperforming administrative and other work during the Transition Period.  The\nparties will share equally the costs of retaining the services of such\npersons.\n\n3.   TOSHIBA\n\nThe parties will mutually determine a fair resolution of the value of\nToshiba's share of Kaleida.  An offer will be made to Toshiba in return for\nToshiba's relinquishing its shares in Kaleida and releasing any claims\nagainst Kaleida, Apple and IBM.\n\n4.   INTELLECTUAL PROPERTY RIGHTS\n\n4.1  The parties agree that the best way to preserve the intellectual\nproperty ('IP') assets of Kaleida is to keep Kaleida as a non-operating\ncorporation, which will own the IP assets only and have no employees.\nFollowing Toshiba's relinquishment of its shares, Kaleida will be owned 50%\nby each party.  The parties will cause Kaleida to be jointly managed by\nrepresentatives of the parties and the parties shall advance to Kaleida in\nequal amounts, all administrative and operating costs required in excess of\nKaleida's resources.  Necessary corporate documents will be modified to\nsimplify the administration, requiring a single board member from each\ncompany and other changes.  If and when the parties later formally dissolve\nKaleida, they intend to agree at that time on ownership of IP assets and\nany additional licenses that may be needed.\n\n4.2  Under the Multimedia License Agreement entered into among Kaleida,\nApple, and IBM on May 5, 1992 ('MLA') each party has equivalent broad\nrights to Kaleida's IP assets on a worldwide, perpetual basis, including\ncopyrighted ScriptX technology, COS, Malibu, ITV and any other Kaleida\ntechnologies.  In complete satisfaction of the royalty obligations of each\nparty, the parties will cause Kaleida to accept the cancellation of its pre-\npaid royalty obligations to each party and the licenses under the MLA will\nbecome pre-paid and royalty free.  Promptly after completion of the process\ndescribed in Section 4.3, the parties will cause Kaleida to deliver to each\nparty a copy of all existing Company Materials and Development\nEnvironments, which will include the most current electronic and hardcopy\nversions of the code (source and object), all documentation, all training\nmaterials, etc., (hereinafter called 'Transfer Event').  Each parties use\n                             137\n\n\nof the Company Materials will be subject to the license grant in Section\n6.1 of the MLA, except that SubSections 6.1.1.2, 6.1.1.3, and 6.1.1.6 of\nthat Section are deleted.  Further, the parties agree that all Type I Code\nbecomes Type II Code as of the date of this Agreement and that the\nDevelopment Environments will be licensed according to the terms of Section\n6.1, not Section 6.2. The parties also agree that the procedures in Section\n4.2 of the MLA need not be followed.  The parties will resolve later any\nrights to Kaleida trademarks they may require.\n\n4.3  Notwithstanding the foregoing, the licenses from the Parents to\nKaleida and from Kaleida to the Parents in the MLA will not include any\nParent Materials that have not been incorporated into Company Materials or\nused as part of a Development Environment to create or maintain Company\nMaterials (hereinafter called 'Unused Parent Materials').  Prior to the\nTransfer Event, the parties will use best efforts to cause all Materials at\nKaleida to be inventoried and to determine which of the Materials are\nUnused Parent Materials.  Any copies of Unused Parent Materials found on\nKaleida's premises will, at the contributing Parent's election, either be\nreturned to the contributing Parent or destroyed.  Once the Transfer Event\nhas occurred, however, each party will have the complete rights as defined\nin Section 4.2 to use the Company Materials in accordance with the license\nin the MLA, even if such Company Materials inadvertently contain any Unused\nParent Materials.  The parties will enter into and will cause Kaleida to\nenter into an amendment to the MLA to effectuate the provisions of this\nAgreement.\n\n4.4  This Agreement does not modify the Malibu Agreement between Apple and\nIBM, dated June 27. 1995.\n\n5.   KALEIDA PERSONNEL\n\nThe parties will cause Kaleida to provide its employees with 60 days\nwritten notice of termination and separation benefits approved by the\nparties.  IBM and Apple may hire certain employees, in addition to the\n'Core Team' required for the SDLA.  While the other party's permission or\nreview will not be required for any hiring decisions, the requirements for\nthe Core Team will first be identified.  Neither party will interfere with\nthe attempt by Apple to hire the necessary Kaleida employees into the Core\nTeam.\n\n6.   OTHER KALEIDA ASSETS\n\nThe parties will cause Kaleida to inventory all its non-IP assets.  The\nparties will agree on whether assets will be liquidated or distributed\nfollowing the settlement with Toshiba.  If assets are liquidated, the\nproceeds are to be distributed equally.  The parties will agree on an equal\ndistribution of all other non-liquidated assets, with appropriate\nrequirements of the Core Team considered first,\n\n7.   OTHER\n\nThe parties will cause any necessary Kaleida corporate documents to be\ncreated or amended in order to effectuate any of the actions described\nabove, including Board resolutions, amendments\n                             138\n\n\nto By-Laws, assignments, licenses, etc.  This Agreement shall bind and\ninure to the benefit of the parties and their respective successors and\nassigns.  This Agreement shall be governed by New York law.  This Agreement\nshall  is solely for the benefit of the parties hereto and is not intended\nnor shall it be construed as creating any rights in any third party\n(including without limitation Kaleida or its other shareholder or\ncreditors).  This Agreement may be amended or terminated only by written\nagreement.\n\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their Authorized Representatives.\n\n\nINTERNATIONAL BUSINESS             APPLE COMPUTER, INC.\nMACHINES CORPORATION\n\nACCEPTED AND AGREED TO:            ACCEPTED AND AGREED TO:\n\nBy:  \/s\/ Steven A. Mills           By:  \/s\/ David C. Nagel\n\n\nName  Steven A. Mills               Name    David C. Nagel\n                          \n\nTitle: General Manager, SWS         Title: Senior V.P., Apple Computer, Inc.\n                                  \n\nDate   November 16, 1995            Date  November 17, 1995\n                               \n                              \n                              \n                              \n                              \n                             139\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6722,7886],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9617],"class_list":["post-42416","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-apple-computer-inc","corporate_contracts_companies-international-business-machines-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42416","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42416"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42416"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42416"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42416"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}