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EXHIBIT 10.27
EXCLUSIVE LICENSE
This Agreement is entered into and effective as of June 17, 1997 by and
between SBS Vertrieb GmbH having offices at Software-Zentrum,
Boeblingen/Sinde1fingen c.V., Xxxx-Xxxxxxxxxx-Xxxxxx 00 X-00000 Xxxxxxxxxx,
Xxxxxxx, (hereinafter "SBS"), and Xybernaut Corporation having offices at 00000
Xxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 U.S.A., (hereinafter "Xybernaut").
WHEREAS, SBS has been granted by certain members of SBS the exclusive
right(s) to their inventions and developments relating to Mobile Computer(s),
hereinafter "Developments". "Mobile Computer(s)" is defined as the type of
system(s) described in present and future Xybernaut U.S. and foreign patents,
hereinafter "Products"; and
WHEREAS, Xybernaut desires to obtain a worldwide exclusive license under
all said Developments and to assist SBS in the marketing of these Developments.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
SBS and Xybernaut agree as follows:
1.0 Grants and Royalty
SBS hereby grants to Xybernaut an exclusive royalty bearing worldwide
license to reproduce, manufacture, use, sell, or sub-license all member
Developments made during the term of their membership Each license will be
negotiated between the parties hereto in terms and royalty defined in 1.1 and
minimum royalties based upon the net revenues realized by Xybernaut on the sale
marketing of each Product containing said Development. In addition, Xybernaut
is hereby granted a non-exclusive royalty bearing license under all member
inventions and developments not related to Mobile Computer(s). This
non-exclusive license will be under most favored nations terms, i.e., terms at
least as favorable as those to any other licensee wider similar circumstances.
1.1 If said Development is used in Product, Xybernaut and SBS agree to
negotiate the Royalties in the form of a flat fee or a percentage of Net
Revenue.
In the event a price is not agreeable, both Xybernaut and SBS agree to
hire a third party that specializes in the assessment of computer
technology (e.g., Yankee Group or Dataquest) to help in the evaluation
of the product and markets and establish a price. Both parties agree
to be bound by the price evaluation by said third party. Also, the
pricing will be reviewed and adjusted (if necessary) annually by both
parties to ensure an equitable figure is used taking into
consideration current market values.
Net Revenue shall mean Xybernaut's or its designee's total selling
price of Product FOB point of Product distribution after deduction of
shipping, insurances, packing, taxes, export fees, and any sales
commissions.
1.2 Xybernaut hereby grants SBS a preferred provider status for
customer solutions in Europe dealing with subject matter of
Developments. SBS, in addition, shall be notified of
opportunities and have the right to bid for customer specific
software solutions relating to developments in Europe in the
fields of the SBS defined expertise,
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where Xybernaut or its assignees is the prime contractor and
SBS will be awarded contracts on most favored nations terms.
1.3 Xybernaut may terminate SBS's right of first refusal with
regard to customer specific software solutions in Europe of
1.2 if SBS has repeatedly not carried out any such customer
solutions to the satisfaction of Xybernaut. SBS is entitled to
terminate the exclusivity as mentioned under 1.0, if Xybernaut
has repeatedly not granted the first right of refusal
according to paragraph 1.2 above.
1.4 SBS may also terminate this Exclusive License during the
renewal period if Xybernaut has not sponsored at SBS and paid
for at least One Hundred Fifty Thousand Dollars ($150,000 US)
far development or professional services to be rendered by SBS
Xybernaut may cure such occurrence within 120 days of
notification by SBS by sponsoring at SBS said minimum of $
150,000 for projects of its selection.
2.0 Term
Unless sooner terminated by thc parties, this Agreement will continue for
a period of five (5) years from the effective date of this Agreement, renwab1e
at the option of Xybernaut for an additional term.
3.0 Payment of Royalty
Xybernaut shall pay SBS on the Net Revenue of all of said
Developments marketed within sixty (60) days after the end of any month in
which marketing revenue has been collected and cashed by Xybernaut. Xybernaut
will maintain accurate records so that proper calculations of royalties due may
be easily confirmed if required. All Net Revenues realized by Xybernaut upon
which royalties may be based will be certified in writing by Xybernaut's
auditors upon written request by SBS.
4.0 Additional Consideration
In addition to paragraph 1.4 and the royalty Xybernaut will pay SBS on
Developments marketed as set out in paragraph 1.1, Xybernaut will seriously
consider funding various Xybernaut selected programs and/or projects conducted
or to be conducted at SBS faci1ites or with SBS assistance.
Miscellaneous
5.0 This Agreement constitutes the entire agreement between the parties and all
prior agreements and understanding both oral and written are superseded by
this Agreement.
6.0 Both parties have the right to publicize the existence of this
Agreement but not the specifics or terms hereof unless agreeable to
the other party hereto.
This Agreement will be construed in accordance with the laws of the
Commonwealth of Virginia U.S.A., however any disputes or controversies between
the parties shall be submitted to arbitration in accordance with the
International Chamber of Commerce (ICC) Arbitration rules. The place of
arbitration shall be Paris, France as the location of the ICC.
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IN WITNESS WHEREOF, the parties have cause their duly authorized
representatives to execute this Agreement.
For Xybernaut Corporation For SBS Vertrieb GmbH
By: /S/ Xxxxx Xxxxxx By: /S/ Xxxxx Xxxx, President
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Date: 06/14/97 Date: 06/17/97
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