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EXHIBIT 10.5.2
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AGREEMENT
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THIS AGREEMENT (this "Agreement") is entered into as of
November 8, 1999 by and among Telxon Corporation, a Delaware corporation
("Telxon"), Cisco Systems, Inc., a California corporation ("Cisco"), and Aironet
Wireless Communications, Inc., a Delaware corporation ("Aironet"). Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement (as defined below).
RECITALS:
WHEREAS, Cisco and Aironet have entered into that certain
Agreement and Plan of Merger and Reorganization dated of even date herewith (the
"Merger Agreement"), pursuant to which, among other things, Cisco would acquire
Aironet pursuant to a merger of a subsidiary of Cisco with and into Aironet (the
"Merger") and Aironet stockholders would receive shares of Cisco Common Stock;
WHEREAS, Telxon beneficially owns approximately 35% of
Aironet's outstanding stock and as a result stands to benefit substantially from
the Merger;
WHEREAS, Telxon and Aironet are parties to a number of
agreements and have certain relationships which Cisco desires to terminate or
clarify in connection with entering into the Merger Agreement; and
WHEREAS, in order to induce Cisco to enter into the Merger
Agreement, Telxon and Aironet have agreed to enter into this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises,
the covenants and representations set forth herein, and certain other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1. TERMINATION OF TELXON/AIRONET AGREEMENTS; EXECUTION OF
PURCHASE AND LICENSE AGREEMENTS.
1.1 Effective as of, and conditioned upon the occurrence of,
the Effective Time, Telxon, Aironet and Cisco agree that with no further action
on the part of any party hereto or thereto, that certain License, Rights and
Supply Agreement and that certain Services Agreement, each dated March 31, 1998,
by and between Telxon and Aironet (the "Terminated Agreements"), and all
licenses granted thereunder, shall terminate effective as of the Effective Time,
and that none of Telxon, Cisco or the Surviving Corporation shall have any
further liability or obligations with respect thereto.
1.2 Unless specifically contemplated by the Merger Agreement
or with the express prior written consent of Cisco, from the date hereof until
the earlier of the Effective Time or the date on which the Merger Agreement is
terminated Aironet and Telxon will not
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amend, modify or otherwise alter, or otherwise cause or permit to be amended,
modified or otherwise altered, the Terminated Agreements.
1.3 Effective as of, and conditioned upon the occurrence of,
the Effective Time, Cisco and Telxon will enter into a Purchase Agreement in
substantially the form attached as EXHIBIT A hereto and a License Agreement in
substantially the form attached as EXHIBIT B hereto (together, the "New
Agreements"). The New Agreements shall become effective as of, and are expressly
conditioned upon, the occurrence of the Effective Time with no further action on
the part of Cisco or Telxon; provided that in the event that the Merger
Agreement is terminated or the Merger is not consummated, the New Agreements
shall terminate and be deemed void ab initio.
SECTION 2. CONSENTS TO ASSIGNMENT. Effective as of the
Effective Time, Telxon hereby consents to the assignment to Cisco and the
Surviving Corporation, and any other direct or indirect Cisco subsidiary of each
of the agreements set forth on SCHEDULE 1 hereto. Such consent shall be
effective at the Effective Time whether or not the corporate existence of
Aironet ceases, including, but not limited to, as a result of the merger of
Aironet with and into Cisco (or any subsidiary of Cisco) following the Merger.
Without limiting the generality of the foregoing, Telxon hereby expressly
acknowledges that Cisco is not a "direct competitor" of Telxon for purposes of
each of the LM3000 Software Agreement and the Patent License Agreement, each
dated March 30, 1998 by and between Telxon and Aironet and the Tax Benefit and
Indemnification Agreement dated March 31, 1998 by and between Telxon and
Aironet, and any other agreement for which such acknowledgement would be
appropriate.
SECTION 3. NON-COMPETITION AGREEMENT.
3.1 As an additional material inducement for Cisco to enter
into the Merger Agreement and consummate the Merger, from and after the date
hereof and prior to the consummation of the Merger for so long as the Merger
Agreement shall remain in effect, and upon the consummation of the Merger for a
period of two (2) years after the Effective Time, Telxon will not, other than
through its ownership of Aironet stock between the date hereof and the Effective
Time, as an employer, employee, agent, consultant, advisor, independent
contractor, partner, officer, director, stockholder, investor, member, lender or
guarantor of any business corporation, partnership or other entity, or in any
other capacity, directly or indirectly, on a worldwide basis:
(i) design or develop any PHY and/or MAC level
networking devices, or acquire (by means of merger, stock
purchase, asset purchase or otherwise) any business that
designs or develops such devices, which comply with the IEEE
802.11 standard (including each of the various specifications
thereunder), and any drafts, proposals, extensions and
modifications to the IEEE 802.11 standard and the
specifications thereunder (collectively, the "Business"); or
(ii) permit Telxon's name to be used in connection
with the Business.
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3.2 Notwithstanding the foregoing, Telxon may beneficially own,
directly or indirectly, solely for investment purposes, up to two percent (2%)
of any class of "publicly traded securities" of any person or entity which owns
or operates a business that is competitive or substantially similar to the
Business. The term "publicly traded securities" shall mean securities that are
traded on a national securities exchange or quoted on the National Association
of Securities Dealers Automated Quotation System.
3.3 If any restriction set forth in this Section 3 is found by a court
to be unreasonable and therefore unenforceable, or for any other reason to be
unenforceable, then Telxon agrees, and hereby submits, to the reduction and
limitation of such prohibition to such area or period as shall be deemed
enforceable.
SECTION 4. STOCKHOLDER LAWSUIT INDEMNIFICATION.
(a) INDEMNIFICATION. Telxon shall indemnify and hold
harmless Cisco and the Surviving Corporation and their respective directors,
officers, representatives, agents and affiliates (within the meaning of the
Securities Act of 1933, as amended) (collectively, the "Indemnified Parties")
from and against any cost, damage, disbursement, expense, liability, judgment,
loss, deficiency, obligation, penalty or settlement of any kind or nature,
whether foreseeable or unforeseeable, including, but not limited to, interest or
other carrying costs, penalties, legal, accounting and other professional,
expert witness and consultant fees and expenses incurred in investigation,
response to collection, prosecution and defense of claims and amounts paid to
settlement (collectively, "Losses") that may be imposed on, incurred or suffered
by any Indemnified Party as a result of or in connection with the two class
action lawsuits filed by Telxon's stockholders in the court of Chancery of the
State of Delaware on May 8, 1998 or the 27 class action lawsuits filed by
Telxon's stockholders in the U.S. District Court, Northern District of Ohio from
December 1998 through March 1999, including any successor or consolidated
actions or any future lawsuits or actions arising out of or with respect to the
facts alleged in such pending actions (each, an "Action").
4.2 PROCEDURES. If any Action indemnifiable under this Section 4
shall be brought, asserted or threatened against any person indemnified under
this Section 4, the Indemnified Party shall promptly notify the indemnifying
person ("Indemnitor"); PROVIDED that any failure to notify Indemnitor timely or
at all shall reduce the liabilities and obligations of Indemnitor under this
Section 4 only to the extent Indemnitor actually shall be prejudiced by the
failure. Indemnitor shall assume the payment of all related fees and expenses to
the Action, and Indemnitor may, at its option, assume the defense of, or respond
to, the Action. If Indemnitor has assumed the defense of (or responded to) the
Action, then the Indemnified Party shall not have the right to assume the
defense of (or respond to) the Action and, subject to the provisions of this
Section 4, Indemnitor shall have the right to control the defense, compromise or
settlement of any such Action. If Indemnitor, within 30 days after notice of any
such Action, or such shorter period as is reasonably required, fails to assume
the defense of such Action, the Indemnified Party will have the right to
undertake the defense, compromise or settlement of such Action on behalf of, and
for the account and risk, and at the expense of, Indemnitor, subject to the
right of Indemnitor to assume the defense of such Action at any time prior to
settlement, compromise or final determination thereof. The Indemnified Party
shall be bound by the result of the defense of any Action, whether the defense
shall have been assumed by Indemnitor or by
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the Indemnified Party; PROVIDED, HOWEVER, that Indemnitor shall not enter into
any settlement or compromise of any Action or consent to the entry of any
judgment (i) which does not include as an unconditional term thereof the
delivery to the Indemnified Party, of a written release from all liability in
respect of such Action or (ii) for other than monetary damages to be borne by
Indemnitor, without the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld. The Indemnified Party shall
cooperate fully in all aspects of any investigation, defense, pre-trial
activities, trial, compromise, settlement or discharge of any Action in respect
of which indemnity is sought pursuant to this Section 4; PROVIDED that in any
event the costs associated therewith shall also be deemed Losses hereunder.
4.3 APPEAL. Notwithstanding anything in this Section 4 to the
contrary, if, in connection with an Action indemnifiable under this Section 4, a
court, governmental body or other authority of competent jurisdiction or other
person having authority or jurisdiction over a matter or matters related to the
Action shall have rendered, entered or granted a binding judgment, decision,
ruling, order or award with respect to the matter or matters providing for the
payment of money damages or the claimant and Indemnitor shall have agreed to
settle the Action for an amount of money damages without reservation of any
rights or defenses against the Indemnified Party, and if the Indemnified Party
elects to appeal the judgment, decision, ruling, order or award or declines to
agree to the proposed settlement, as the case may be, then the Indemnified Party
may continue to defend the Action, free of any participation by Indemnitor, but
the amount of any ultimate liability under this Section 4 with respect to Losses
related to or allegedly arising in connection with the matter or matters that
shall have been comprehended by the judgment, decision, ruling, order or award
or by the proposed settlement, as the case may be, shall then be limited to the
amount of the judgment, decision, ruling, order or award or the amount of the
proposed settlement, as the case may be.
4.4 LIMITATION ON OTHER RIGHTS OF RECOVERY. The rights of the
Indemnified Party to indemnification as provided for in this Section 4 shall
constitute the Indemnified Party's sole remedy against Indemnitor for
indemnification with respect to an Action and Indemnitor shall have no other
liability or damages to the Indemnified Party resulting from any Action. The
provisions of this Section 4 shall not eliminate or otherwise limit the right of
any Indemnified Party hereunder or any other person to seek to recover
contribution, damages or otherwise enforce its rights against any person other
than Indemnitor without regard to the provisions of this Section 4.
SECTION 5. MISCELLANEOUS.
5.1 FURTHER ASSURANCES. Each party hereto, at the reasonable request
of another party hereto, shall execute and deliver such other instruments and do
and perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of this Agreement.
5.2 GOVERNING LAW AND VENUE. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware,
without regard to conflict or choice of laws, statutes, regulations, rules or
principles. ANY ACTION RELATING TO THE EXECUTION OR PERFORMANCE OF THIS
AGREEMENT SHALL BE BROUGHT IN THE COURTS, STATE OR FEDERAL SITTING IN DELAWARE,
AND
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EACH PARTY HERETO CONSENTS TO THE JURISDICTION AND VENUE OF SUCH COURTS, AND
AGREES NOT TO CONSENT VENUE ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE.
5.3 SEVERABILITY. In addition to the reformation provision of Section
3, if any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, then the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
5.4 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other.
5.5 AMENDMENT AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
5.6 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Cisco will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Telxon set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Cisco upon any such violation, Cisco shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Cisco at law or in equity
and each of Aironet and Telxon hereby waives any requirement for the security or
posting of any bond in connection with such enforcement.
5.7 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt) to the parties
at the following address (or at such other address for a party as shall be
specified by like notice):
(a) If to Telxon to:
Telxon Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, 00000
Attention: President
Facsimile No.: (000) 000-0000
(b) If to Aironet to:
Aironet Wireless Communications, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
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Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
(c) If to Cisco to:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Senior Vice President, Legal
and Government Affairs
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
; or to such other address as any party hereto may designate for itself by
notice given as herein provided.
5.8 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
5.9 ENTIRE AGREEMENT. This Agreement represents and contains the
entire agreement and understanding among the parties hereto with respect to the
subject matter of this Agreement, and supersedes any and all prior oral and
written agreements and understandings.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first above written.
CISCO SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
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Name:
Title
TELXON CORPORATION
By: /s/ Xxxx X. Xxxxxx, Xx.
----------------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Chairman and CEO
AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President & CEO
[SIGNATURE PAGE TO AGREEMENT]
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SCHEDULE 1
1. Nondisclosure Agreement, dated March 31, 1998, by and between Telxon and
Aironet.
2. LM3000 Software Agreement, dated March 30, 1998, by and between Telxon and
Aironet.
3. Patent License Agreement, dated March 30, 1998, by and between Telxon and
Aironet.
4. Tax Benefit and Indemnification Agreement, dated March 31, 1998, by and
between Telxon and Aironet.
5. Patent License Agreement, dated August 4, 1999, by and between Telxon and
Aironet.
6. Lease for 00 Xxxxxxxxxx Xxxxx, dated April 1, 1998, by and between Telxon
and Aironet.
7. Sublease for 0000 Xxxxxxx Xxxxxxx, dated August 1, 1998, by and between
Telxon and Aironet.
8. Cross Covenant Not to Xxx, dated March 31, 1998, by and between Telxon and
Aironet.
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EXHIBIT A
PURCHASE AGREEMENT
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[AIRONET LOGO]
PURCHASE AGREEMENT
Between: and:
Aironet Wireless Communications, Inc. Telxon Corporation
0000 Xxxxxxx Xxxxxxx 0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000 Akron, Ohio
(000) 000-0000
(000) 000-0000 (Fax)
("Aironet") ("Buyer")
1. PRODUCTS, PRICES, TAXES AND TERM. Aironet agrees to sell its products
("Products") to Buyer in available quantities for use by Buyer or sale by
Buyer to its customers as part of ,or for use with, Buyer's finished
products. Buyer shall place its orders for Products in writing specifying
the Products ordered, quantity and desired shipping date. Prices for the
Products shall be the same price Aironet charges its other customers for
same Products in like quantities and similar terms and conditions. Prices
are F.O.B. point of shipment, exclusive of shipping charges, federal, state
and/or local excise, sales, use property, occupation or similar taxes. This
agreement supersedes any terms or conditions contained in printed forms
submitted by either party in connection with this purchase, such as
purchase orders, sales acknowledgments or invoices, which shall be void and
of no effect. The term of this agreement is the one year period commencing
on the date of the last signature below, provided that the term may be
extended by mutual written agreement of the parties. Aironet may terminate
this agreement prior to the expiration of the term upon Telxon's material
breach, provided that Telxon shall have five days from written notice of
breach to cure and avoid termination.
2. CREDIT APPROVAL AND PAYMENT TERMS. Buyer shall pay for its orders net 30
days from the date of invoice. Aironet's invoicing and shipment of orders
is subject to Aironet's approval of Buyer's credit. Buyer will provide
Aironet with such financial information as Aironet reasonably requests to
establish credit approval. Aironet may assess late charges of up to one and
one-half percent (1 1/2%) per month or a higher rate as may be allowed by
law. Aironet may also collect from Buyer all costs, including reasonable
legal fees, which Aironet may incur to collect any delinquent amount.
3. DELIVERY. Aironet will use reasonable efforts to meet the delivery dates
specified in Buyer's orders; however, Aironet will not be liable for delays
in delivery for any reason. Aironet will select the carrier, who will
deliver the Products to Buyer at the location(s) shown in Buyer's orders,
or as otherwise agreed in writing by the parties. Title and risk of loss or
damage will pass to Buyer at Aironet's place of shipment upon delivery to
the first carrier. Buyer may not cancel this agreement for any reason.
Buyer may modify or cancel its orders without charge if done at least sixty
days prior to the scheduled shipping date. Orders may not be modified or
canceled sixty or fewer days prior to the scheduled shipping date.
4. WARRANTY. Aironet warrants the Aironet manufactured products purchased
pursuant to this agreement against defects in material and workmanship
under normal use and service for one year from the date of shipment to
Buyer. Aironet, at its option, will at no charge either repair, replace, or
refund the purchase price of the Product during the warranty period
provided it is returned in accordance with the terms of this warranty to
the location specified by Aironet from time
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to time. Repair, at Aironet's option, may include the replacement of parts
or boards with functionally equivalent reconditioned or new parts or
boards. Replaced parts or boards are warranted for the balance of the
original applicable warranty period. All replaced parts, boards, or Product
shall become the property of Aironet. This warranty is extended by Aironet
to Buyer only and is not assignable or transferable to any other party.
Aironet is not responsible under this warranty for ancillary equipment,
whether or not manufactured by Aironet, which is attached to or used in
connection with the Product, nor for operation of the Product with any such
ancillary equipment. Because each Product system is unique, Aironet
disclaims liability for range, coverage, or operation of the system as a
whole under this warranty. This warranty does not cover: defects or damage
resulting from use of the Products in other than its normal and customary
manner; defects or damage from misuse, accident or neglect; defects or
damage from improper testing, operation, maintenance, installation,
alteration, modification or adjustment; breakage or damage to antennas
unless caused directly by defects in material or workmanship; product
disassembled or repaired in such a manner as to adversely affect
performance or prevent adequate inspection and testing to verify any
warranty claim; or Product which has had the serial number removed or made
illegible.
5. PATENT AND COPYRIGHT INDEMNIFICATION. Aironet agrees to defend, at its
expense, any suits against Buyer based upon a claim that the Products
purchased hereunder infringe a now existing U.S. patent or copyright and to
pay costs and damages finally awarded in any such suit, provided that
Aironet is notified promptly in writing of the suit and Aironet is given
sole control of said suit and is provided by Buyer with all requested
assistance for defense of same. If the use or sale of any Products
furnished is enjoined as a result of such suit, Aironet at its option and
at no expense to Buyer will either (i) obtain for Buyer the right to use or
sell the Products, (ii) substitute a substantially equivalent product or
(iii) require the return of the Products and reimburse Buyer the purchase
price, less a charge for reasonable wear and tear and depreciation. This
indemnity does not extend to any suit based upon any infringement or
alleged infringement of any patent or copyright by Products which have been
altered by any person or entity other than Aironet or by the combination of
any Products with other items other than when the Products are used for
their intended purpose. This states the entire liability of Aironet for
intellectual property infringement.
6. FIRMWARE, MASK WORKS, SOFTWARE AND LICENSE DISCLAIMER. The Products may be
accompanied by software, and one or more components of the Products may
contain firmware or mask works programs built into their circuitry. Buyer's
purchase of the Products includes a non-exclusive, royalty-free,
non-transferable license to use such software, firmware and mask works with
or as part of the Products, but only under the conditions prescribed by
this Section 6. Any firmware, mask works or software which Aironet
furnishes with the Product is subject to the following minimum conditions,
in addition to those which may be imposed by law or other license terms
included with the Products: (i) Aironet (or its supplier) retains all title
and ownership to such firmware, mask works or software, and Aironet
reserves all rights in patents, copyrights, trade secrets and other
intellectual property in it; (ii) Buyer may not copy, disassemble,
decompile or reverse engineer the firmware, mask works or software under
any circumstances, nor will Buyer assist or cooperate with third parties
attempting any of the foregoing; and (iii) Buyer will exercise the same
care to prevent any unauthorized copying or dissemination by Buyer's
customers and others who are to use the Products as Buyer would take to
protect Buyer's own proprietary information, but in no event less than
reasonable care. If Buyer
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ever transfers the Products to any other party, Buyer shall bind its
transferee to the terms of this Section 6. Except for the right to use the
software, firmware or maskworks as provided in this Section 6, nothing
contained in this agreement shall be deemed to grant to Buyer or any other
person or entity, either directly or by implication, estoppel, or otherwise
any license or right under any patents, copyrights, trademarks or trade
secrets of Aironet or any third party.
7. WARRANTY DISCLAIMERS. THE WARRANTY GIVEN IN SECTION 4 IS LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED. SECTION 4 SETS FORTH THE
FULL EXTENT OF AIRONET'S RESPONSIBILITIES AND LIABILITY REGARDING THE
PRODUCTS, AND REPAIR, REPLACEMENT, OR REFUND OF THE PURCHASE PRICE, AT
AIRONET'S OPTION, IS BUYER'S EXCLUSIVE REMEDY. SECTION 5 SETS FORTH THE
FULL EXTENT OF AIRONET'S RESPONSIBILITY AND LIABILITY REGARDING
INTELLECTUAL PROPERTY INFRINGEMENT.
8. CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL AIRONET BE LIABLE FOR ANY
LOSS OF USE, LOSS OF TIME, LOST DATA, INCONVENIENCE, COMMERCIAL LOSS, LOST
PROFITS OR SAVINGS OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
REGARDLESS OF HOW ARISING OR WHETHER AIRONET HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL
LIABILITY OF AIRONET AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE
SHALL BE LIMITED TO THE PURCHASE PRICE PAID TO AIRONET FOR THE AFFECTED
PRODUCTS DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR
CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY
IS CUMULATIVE AND NOT PER INCIDENT.
10. GOVERNMENT SALES. Any software or firmware which is part of or accompanies
the Products constitutes commercial computer software programs developed at
private expense, and to the extent that the Products or any accompanying
software is provided to or on behalf of the United States of America, its
agencies and/or instrumentalities (collectively, the "Government"), Buyer
must provide such Products (A) with "restricted rights" within the meaning
of, and use, duplication and disclosure thereof by the Government is
subject to the restriction set forth in, the Rights in Technical Data and
Computer Licensed Program clause at 48 C.F.R. 252.227-7013 and (B) Buyer
shall provide that the software and firmware constitute "restricted
computer software" within the meaning of the Commercial Computer Licensed
Program - Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable,
or as set forth in the particular department or agency regulations or rules
which provide protection equivalent to or greater than the above cited
clauses or any successor provisions to any of the foregoing. The
Manufacturer/Contractor is Aironet Wireless Communications, Inc., 0000
Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000.
11. COMPLIANCE WITH LAW. Buyer shall not use or transfer the Products except in
accordance with all applicable federal, state, and local laws and
regulations. In the event that Buyer
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uses or sells the Products outside of the United States, Buyer shall comply
with all the United States export control laws and similar laws of the
foreign county involved. The Products have been configured to operate in
the United States unless otherwise agreed by Aironet as to any specific
order.
12. YEAR 2000. In reference to requests regarding "Year 2000" compliance,
please be advised that for all Aironet products, there is no reliance upon
any function that keeps time or calendar information. Therefore, Aironet
products do not require any "Year 2000" specific modifications or updates
to operate correctly before, during or after the year 2000, provided that
all other products (for example, hardware, software and firmware) used with
the Aironet products, properly exchange accurate data with it.
13. GENERAL. Buyer may not assign this agreement or Buyer's rights or
obligations hereunder without the express written consent of Aironet.
Notices under this agreement must be sent by telegram, telex, telecopy, or
registered or certified mail to the appropriate party at its address stated
on the first page of this agreement (or to a new address if the other has
been properly notified of the change). If Aironet, the notice must be
addressed to the President of Aironet. A notice will not be effective until
the addressee actually receives it. All terms and pricing of this agreement
are confidential and Buyer will not disclose same without Aironet's prior
written consent. This agreement constitutes the entire and final expression
of agreement between the parties pertaining to the subject matter of the
agreement and supersedes all other communications between the parties,
including all previous oral or written communications. If any provision is
held invalid all other provisions shall remain valid, unless such
invalidity would frustrate the purpose of this agreement. No waiver of any
term, or alteration or modification of the agreement will be binding upon
either Buyer or Aironet unless made in writing and signed by an authorized
representative of each. No failure or delay to act on any rights under this
agreement shall be construed as a waiver of these or any other rights of
the parties. Any term which by its nature survives the expiration or
termination of this agreement shall so survive. This agreement shall be
governed in accordance with the law of the state of Ohio without regard to
conflict-of-laws principles.
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IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their duly-authorized representatives as of the dates set forth
below.
AIRONET WIRELESS COMMUNICATIONS, INC. TELXON CORPORATION
------------------
By: By:
------------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
(Print Name) (Print Name)
Title: Title:
---------------------------------- ------------------------------
Date: Date:
---------------------------------- ------------------------------
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EXHIBIT B
LICENSE AGREEMENT
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LICENSE AGREEMENT
This License Agreement (this "Agreement") is made as of November 8,
1999, by between Aironet Wireless Communications, Inc. ("Aironet") and Telxon
Corporation. This Agreement shall become operative only upon closing ("Closing")
under the Agreement and Plan of Merger and Reorganization dated as of the date
hereof by and among Cisco Systems, Inc., Aironet, and Osprey Acquisition
Corporation.
BACKGROUND
WHEREAS, Aironet and Telxon are parties to a License, Rights, and
Supply Agreement dated as of March 31, 1998 (together with all exhibits and
schedules thereto and as amended, the "Prior Agreement"), pursuant to which
Aironet has granted to Telxon certain rights and licenses, and has agreed to
supply Telxon with certain products; and
WHEREAS, to accommodate changes in the respective business plans of the
parties, effective as of the Closing, the Prior Agreement is hereby terminated
and this Agreement shall be entered into in its place.
AGREEMENT
NOW, THEREFORE, based on the mutual rights, obligations,
representations, and warranties set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. LICENSE. Subject to the other provisions of this Agreement, Aironet
hereby grants a perpetual (subject to Section 14), worldwide, non-exclusive
fully paid license to Telxon to make, support, service, maintain, repair,
integrate, install, combine, use, market, sell, lease, and transfer the hardware
products identified in SCHEDULE 1 and to copy the software and firmware used
therein and to load or integrate the software and firmware into such hardware
and to transfer such copies, in object code form only, with its associated
hardware and to support, service and maintain the software and firmware (such
hardware, software and firmware being collectively referred to as "Legacy
Products") to its customers. Telxon shall, and shall require its distributors,
OEMs, VARs and other resellers to, include an end user software license with
each copy of the software distributed with Legacy Products in an end user in
form reasonably acceptable to Aironet.
2. TERMINATION OF PRIOR AGREEMENT. The Prior Agreement and all licenses
and rights thereunder are terminated effective as of the Closing; provided,
however, that the following sections of the Prior Agreement and only those
sections shall survive termination: Sec. 18.3 (Confidentiality), 18.5
(Limitation of Liability).
3. NO ROYALTIES. No royalties or fees are due in payment of the rights
and licenses
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granted to Telxon in this Agreement which are fully paid.
4. CONTRACTORS. Telxon may have the licensed activities performed for
it by third parties that are not direct competitors of Aironet, but Telxon has
no right to sublicense or re-license its rights hereunder.
5. RESTRICTIONS. Telxon shall not:
5.1 prepare improvements, refinements, enhancements,
modifications, adaptations, revisions, or derivatives of the Legacy
Products, except for minor changes to permit the Legacy Products to be
compatible or interface with Telxon's finished products,
5.2 sell any subassemblies or radios for Legacy Products
unless they are integrated into such products or are sold as repair or
replacement parts for such products, either by Telxon directly to an
end user or indirectly through a Telxon reseller, distributor, OEM, or
other channel partner or service or repair vendor;
5.3 sell Legacy Products through its alternate distribution
channels except to those partners which are certified to sell complete
Telxon integrated PTCs and pen-based products; or
5.4 otherwise engage in any activities prohibited under
Section 2.7 of the Prior Agreement.
6. DOCUMENTS. Telxon is in possession of documentation, procedures,
engineering drawings, manufacturing specifications, know how, schematics,
diagnostic programs, test procedures, code , specifications, vendor and parts
lists, technical bulletins, and the like necessary for Telxon to exercise its
rights under the license ("Documentation"). Telxon may copy and use the
Documentation in connection with the exercise of the license.
6.1 COPYRIGHT NOTICES. Telxon shall ensure that all copies of
the Documentation in Telxon's possession or control incorporate
copyright and other proprietary notices in the same manner that Aironet
incorporates such notices in the Documentation or in any manner
reasonably requested by Aironet. Telxon shall promptly notify Aironet
in writing upon its discovery of any unauthorized use of the
Documentation or infringement of the Documentation or Aironet's
proprietary rights in the Documentation.
6.2 PROTECTION OF DOCUMENTATION. Documentation is the
confidential and proprietary property of Aironet. Telxon receives no
rights to and, other than copies of Documentation customarily provided
to customers or members of its distribution channels and maintenance
providers, will not sell, assign, lease, rent, market, transfer,
encumber or suffer to exist any lien or security interest (other than
those of Aironet and Telxon's commercial lenders) nor allow any person,
firm, or corporation to copy, reproduce or disclose, in whole or in
part in any manner, the Documentation. Telxon shall take all reasonable
steps, both during and after the term of this Agreement, to ensure
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that no unauthorized person shall have access to Documentation and that
no unauthorized copy, in whole or in part, in any form shall be made.
7. LICENSING TO U.S. GOVERNMENT. Telxon shall identify or xxxx any
copies of the Software and Documentation provided pursuant to any agreement with
the United States Government or any contractor therefor, as follows: (i) For
acquisition by or on behalf of civilian agencies, as necessary to obtain
protection substantially equivalent to that afforded to restricted computer
software and related documentation developed at private expenses and which is
existing computer no part of which was developed with government funds and
provided with Restricted Rights in accordance with subparagraphs (a) through (d)
of the "Commercial Computer Software Restricted Rights" clause at 48 C.F.R.
52.227-19 of the Federal Acquisition Regulations and its successors; or (ii) For
acquisition by or on behalf of units of the Department of Defense ("DOD") as
necessary to obtain protection substantially equivalent to that afforded to
commercial computer software and related documentation developed at private
expenses and provided with Restricted Rights as defined in DOD FAR Supplement 48
C.F.R. 52.227-7013(c)(1)(ii) and its successors.
8. OWNERSHIP. Neither Telxon nor Aironet shall acquire any ownership
interest in the other's intellectual property rights as a result of this
Agreement. Telxon acknowledges that the intellectual property underlying the
Legacy Products and Documentation is Aironet's sole property, and that Telxon
has no right, title, or interest in or thereto except for the license granted in
this Agreement. Aironet's and Telxon's intellectual property rights shall remain
separate property and shall not be, or be deemed to be, a joint work,
compilation, or any other type of work of multiple authorship by reason of this
Agreement.
9. NO IMPLIED RIGHTS. Except for the specific and unequivocal rights
and licenses conferred herein, nothing contained in this Agreement shall be
deemed to grant to Telxon or any other person or entity, either directly or by
implication, estoppel, or otherwise any license or right under any patents,
copyrights, trademarks, trade secrets, or other intellectual or industrial
property rights of Aironet or any third party.
10. TRADEMARKS; PROPRIETARY LEGENDS. Telxon's products, including the
Legacy Products, shall not carry any of Aironet's trademarks. Aironet may
reasonably require Telxon to xxxx the Legacy Products with proprietary rights
notices required either (a) by or in accordance with law or (b) to prevent
prejudice to Aironet's intellectual property rights.
11. DISCLAIMER. AIRONET MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO
ANY LEGACY PRODUCT, WHETHER EXPRESS OR IMPLIED OR ARISING UNDER ANY STATUTE OR
FROM ANY COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SATISFACTORY QUALITY OR PERFORMANCE, OR NON-INFRINGEMENT.
12 Telxon shall prepare and maintain on a current basis complete and
accurate books and records, in accordance with generally accepted accounting
principles, sufficient to document compliance with this Agreement. All such
books and records shall be retained for at least three (3) years from the date
they are created. At the request of Aironet and during the normal business
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hours of Telxon, no more than once in any fiscal quarter, Telxon shall permit an
Aironet's representative, to have access to such books, records and inventories
as may be necessary to determine Telxon's compliance with this Agreement.
13. COVENANTS. Telxon agrees that it shall at all times: (i) act to
protect the Documentation with the same level of diligence and care that it
takes to protect its own trade secrets, but in no case less than a reasonable
degree of care; (ii) maintain high standards of quality in Legacy Products; and
(iii) comply in all material respects with all applicable laws, rules, and
regulations in its performance hereunder.
14. TERMINATION. Aironet may terminate this Agreement upon a material
breach by Telxon, provided that Telxon may avoid termination by curing the
breach within seven (7) days following receipt of written notice of breach from
Aironet. Upon termination or expiration Telxon shall return or destroy the
Documentation at Aironet's direction. The provisions of Section 6.2 shall
survive termination of this Agreement.
15. ASSIGNMENT. Telxon may not assign this Agreement or its rights or
obligations hereunder without the express written consent of Aironet.
16. INDEMNIFICATION. Telxon shall indemnify, defend, and hold harmless
Aironet, and its affiliates, officers, directors, employees, and agents from and
against any and all losses, liabilities, claims, and expenses (including,
without limitation, reasonable attorneys' fees) which result from or arise in
connection with Telxon's exercise of its rights hereunder.
17. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF THE OBLIGATION TO
KEEP THE DOCUMENTATION CONFIDENTIAL AND BREACH OF THE SCOPE OF THE LICENSE,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF THIS AGREEMENT OR
ANY TERMINATION OF THIS AGREEMENT WHETHER LIABILITY IS ASSERTED IN CONTRACT OR
TORT, AND IRRESPECTIVE OF WHETHER IT HAS ADVISED OR HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH DAMAGES.
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18. MISCELLANEOUS. This Agreement shall not be construed to create a
partnership, joint venture, agency relationship, or any similar arrangement
between the parties for any purpose whatsoever. This Agreement is severable. Any
determination by a court of competent jurisdiction that a provision of this
Agreement is not enforceable shall not prevent enforcement of the remaining
provisions. This Agreement may be executed in two or more counterparts, each of
which shall be deemed and enforceable as an original, and all of which together
shall constitute one and the same instrument. This Agreement shall be governed
by and construed under the laws of the State of Ohio, without regard to the
conflict of laws principles thereof. Any notices required or permitted to be
given pursuant to this Agreement shall be given in writing and delivered by
confirmed fax receipt, confirmed courier delivery, or confirmed postal delivery
and shall be deemed made upon confirmation of receipt. Such notices shall be
made to the parties at their principal offices to the attention of their
presidents. This Agreement, together with any schedules attached hereto,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof, and supersedes all prior and contemporaneous
agreements, both oral and written. This Agreement may not be amended except
pursuant to a written instrument executed by both parties hereto, nor may any
provision hereof be waived except pursuant to a written instrument executed by
the party granting such waiver.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby execute
this Agreement as of the date set forth in the first paragraph hereof.
AIRONET WIRELESS TELXON CORPORATION
COMMUNICATIONS, INC.
By:_________________________ By:________________________________
Xxxxx X. Xxxxxx, President Xxxx X. Xxxxxx, Chairman
and Chief Executive Officer and Chief Executive Officer
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SCHEDULE 1.1
LEGACY PRODUCTS
-------------------------------- ----------------------------- -------------------------------
1000 SERIES 2000 SERIES
----------- -----------
-------------------------------- ----------------------------- -------------------------------
900 MHz 2.4 GHz
DSSS DSSS
Proprietary Proprietary
-------------------------------- ----------------------------- -------------------------------
RADIOS: R100 (095) R200 (025)
093
091
-------------------------------- ----------------------------- -------------------------------
PC CARDS: PC1000 (690-900) PC2000 (690-2400)
-------------------------------- ----------------------------- -------------------------------
ACCESS POINTS: AP1000E (630-900) AP2000E (630-2400)
AP1000T (631-900) AP2000T (631-2400)
AP1000L (632-900) AP2000L (632-2400)
-------------------------------- ----------------------------- -------------------------------
UNIVERSAL CLIENTS: UC1000E UC2000E
UC1000S UC2000S
-------------------------------- ----------------------------- -------------------------------
OTHERS: IC1000 (655-900) IC2000 (655-2400)
MC1000 (670-900) MC2000 (670-2400)
671-900 671-2400
672-900 672-2400
POSLAN 210-900 DS2415-2400
DS2410-900
DS2445
-------------------------------- ----------------------------- -------------------------------
