LICENSE AGREEMENT
THIS
LICENSE AGREEMENT (this “Agreement”) is made as of July 31, 2007
by and between Terabeam, Inc., a Delaware corporation with its principal
executive offices located at 0000 X’Xxx Xxxxx, Xxx Xxxx, XX 00000
(“Licensor”), and Civitas Wireless Solutions, LLC, a Colorado limited
liability company with its principal executive offices located at 0000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (“Licensee”).
RECITALS
A. Licensee
and Licensor’s subsidiary, Ricochet Networks, Inc., a Delaware corporation
(“RNI”), entered into an Asset Purchase Agreement, dated as of even date
hereof (the “APA”), pursuant to which Licensee agreed to purchase and
assume, and RNI agreed to sell and transfer, specified assets and liabilities
of
RNI as identified in the APA.
B. It
is a condition precedent to closing the transactions contemplated by the APA
that Licensor and Licensee enter into this Agreement.
NOW,
THEREFORE, in consideration of the above recitals and the mutual agreements
set
forth below, and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties, intending to be
legally bound, agree as follows:
1. LICENSE. Licensor
hereby grants to Licensee a personal and non-transferable, perpetual,
royalty-free, non-exclusive license to use any of the patents and patent
applications set forth on Schedule A that has an application to providing
high-speed (data rates below 500 Kbps) wireless Internet connectivity service
to
subscribers using Licensee’s proprietary microcellular digital radio
communications network in the metropolitan Denver, Colorado geographic area
and
in the other metropolitan areas in the United States where RNI’s equipment had
been deployed prior to Closing as listed on Schedule B, but only as
necessary for Licensee to continue and conduct the normal business of RNI
substantially as previously conducted by RNI. Licensee may sublicense
this license, but only as necessary for Licensee to continue and conduct the
normal business of RNI as heretofore conducted and not for the independent
use
of or by any third party (unless otherwise specifically approved in writing
by
Licensor (which approval may be granted or withheld at the sole discretion
of
Licensor)). Licensee may not sell, convey, assign, or otherwise
transfer this license or any rights or obligations hereunder without the prior
written consent of Licensor (which may be granted or withheld at the sole
discretion of Licensor). Any purported sublicense or transfer by
Licensee in violation of the foregoing or beyond the scope of the foregoing
shall be null and void and of no force or effect.
2. DISPUTE
RESOLUTION; GOVERNING LAW.
2.1 This
Agreement shall be governed and construed in accordance with the substantive
laws of the State of Delaware without regard to any principles of conflicts
of
law.
2.2 If
a dispute arises out of this Agreement, or the interpretation, breach,
termination or validity thereof, each of the parties agrees to first request
a
meeting of senior management of the parties in a written notice that references
this paragraph. That meeting shall occur at a mutually agreeable time
and place within twenty (20) days of any such written notice. Neither
party shall assert any claim of laches, waiver, estoppel, or the like based
on
the time elapsed by following this procedure. If the dispute is
unresolved in whole or in part within twenty (20) days of such meeting, either
party may commence a legal proceeding. Each party hereby irrevocably
agrees that any legal action or proceeding by or against it arising out of
this
Agreement or the transactions contemplated hereby shall be brought only in
the
courts of the State of Delaware in and for the County of New Castle or (if
it
has jurisdiction) the U.S. District Court for the District of
Delaware. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction of any such state or federal court in connection with
any
matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them by mailing copies thereof
by
registered United States mail, postage prepaid, to their address as specified
in
or pursuant to Section 3.3 or in any manner authorized by the laws of the State
of Delaware for such persons, and waives and covenants not to assert or plead
any objection which they might otherwise have to such forum, such jurisdiction,
and such process.
3. MISCELLANEOUS
.
3.1 This
Agreement (including Schedule A, which is hereby incorporated in the terms
of
this Agreement) sets forth the entire understanding and agreement among the
parties as to matters covered herein and therein and supersedes any prior and
contemporaneous understanding, agreement or statement (written or oral) of
intent among the parties with respect to the subject matter
hereof. No provision of this Agreement may be altered, amended,
modified, waived, or otherwise changed in any way except by a written
instrument, which specifically identifies the intended alteration, amendment,
modification, waiver, or other change and clearly expresses the intention to
so
change this Agreement, signed by Licensor and Licensee.
3.2 This
Agreement may be executed in one or more counterparts, any one of which need
not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same agreement. This Agreement
may be executed by facsimile signature or electronic exchanges of documents
bearing a scanned signature, and a facsimile or copy of a signature is valid
as
an original.
3.3 Any
notice required or permitted by this Agreement shall be in writing and shall
be
delivered as follows with notice deemed given as indicated: (i) by personal
delivery when delivered; (ii) by overnight courier upon written
verification of receipt; (iii) by facsimile transmission when confirmed by
facsimile transmission; or (iv) by certified or registered mail, return
receipt requested, upon verification of receipt. All notices must be
sent to the addresses first described above or to such other address that the
receiving party may have provided for the purpose of notice in accordance with
this Section 4.3.
3.4 The
failure of either party hereto to exercise any right hereunder shall not be
deemed to be a waiver of such right. The failure of either party to
require performance by the
2
other
party of any provision of this Agreement shall not affect the full right to
require such performance at any time thereafter; nor shall the waiver by either
party of a breach or any provision hereof be taken or held to be a waiver of
the
provision itself. All rights and remedies of any party are cumulative
and concurrent, and the exercise of one right or remedy shall not be deemed
a
waiver or release of any other right or remedy.
3.5 If
any part, term or provision of this Agreement not being of a fundamental nature
is held illegal or unenforceable by any court of competent jurisdiction, that
part, term or provision shall be deemed automatically adjusted to conform to
the
requirements for validity (or deleted if it cannot be so adjusted) and the
validity and enforceability of the remainder of this Agreement shall not be
affected.
3.6 Unless
otherwise expressly provided, no provision of this Agreement shall give any
rights, remedies or other benefits to any person or entity other than Licensor
and Licensee.
3.7 Licensor
and Licensee shall each pay its own costs, charges and expenses incurred in
connection with the preparation and implementation of this Agreement and the
transactions contemplated by this Agreement.
3.8 Only
the license expressly granted in this Agreement is granted by Licensor, and
no
implied licenses or rights are granted or intended.
3.9 This
Agreement shall apply to, shall be binding in all respects upon, and shall
inure
to the benefit of, the respective successors and assigns of the parties hereto;
provided, however, that neither party shall have the right to assign this
Agreement or the provisions hereof, whether by assignment or operation of law,
without the consent of the other party hereto.
[Signature
Page(s) to Follow]
3
IN
WITNESS WHEREOF, this Agreement has been signed by or on behalf of the parties
effective the day and year first written above.
|
CIVITAS
WIRELESS SOLUTIONS, LLC
|
|
|
By:
/s/ Xxxxx X. Xxxxxxx
|
By:
/s/ Xxxx X. Xxxxx
|
|
Print
Name: Xxxxx X. Xxxxxxx
|
Print
Name: Xxxx X. Xxxxx
|
|
Title:
Vice President
|
Title:
Manager
|
