Exhibit 10.7
AMENDMENT NO. 1 DATED SEPTEMBER 24, 1996 TO OPTION AGREEMENT BETWEEN
MOTOROLA, INC. AND TELULAR CORPORATION
This Amendment is effective this 24th day September, 1996 between
Motorola, Inc., a Delaware corporation, acting by and through its
Cellular Infrastructure Group (hereinafter Motorola), and Telular
Corporation, a Delaware corporation (hereinafter) Telular). Each of
Motorola and Telular may be referred to herein individually as a Party,
or collectively as the Parties.
WHEREAS, on November 10, 1995, Motorola and Telular entered into an
option agreement (hereinafter referred as the Option Agreement); and
WHEREAS, Motorola and Telular desire to amend the Option Agreement in
certain respects;
NOW THEREFORE, in consideration of the mutual obligations contained
herein, the parties hereby agree as follows:
1. Except as set forth herein, all capitalized terms not defined
herein shall have the meanings given to them in the Option
Agreement.
2. The Option Agreement is hereby amended by adding a new paragraph
12, as follows:
12. Dispute Resolution
12.1 The validity, performance, and all matters
relating to the effect of this Option Agreement and any
amendment hereto shall be governed by the laws of the
state of Illinois, USA. The parties will attempt to
settle any dispute, claim or controversy arising out of
this Agreement through consultation and negotiation in
good faith and in a spirit of mutual cooperation. If
those attempts fail, then the dispute will be mediated
by a mutually-acceptable mediator to be chosen by the
parties within 20 days after written notice by either
Party demanding mediation. Neither Party may
unreasonably withhold its consent to the selection of a
mediator, and the Parties will share the costs of the
mediation (or other alternative dispute resolution)
equally. Each party shall pay its own attorneys' fees
and other costs. The mediator shall be knowledgeable
about the telecommunications industry and relevant areas
of law. By mutual agreement, however, the Parties may
postpone mediation until each has completed some
specified but limited discovery about the dispute.
12.2 Any dispute which the Parties cannot resolve
between them through negotiation or mediation within
four months of the date of the initial demand for it by
one of the Parties may be submitted for final resolution
to the American Arbitration Association for proceedings
in Chicago, Illinois, U.S.A. under its rules. Under no
circumstances shall the arbitrator(s) have any authority
to award punitive damages. Judgement on the
arbitrator's award will be binding and may then by
entered in any court which has proper jurisdiction.
12.3 Notwithstanding the foregoing, any disputes with
respect to intellectual property rights shall be
submitted to the courts and not be subject to the
provisions of this section 12.
3. Motorola hereby confirms that it approves the PhoneCell SXH
project as an appropriate project to be funded by Motorola pursant to
the terms of Section 2 of the Option Agreement. Following execution of
this Amendment, Motorola will deliver to Telular a check in the amount
of $843,694.65 in reimbursement for the funds previously expended by
Telular for such project. Motorola continues to believe that this
project was to be included in the price of the units quoted in
paragraph 6 of the Purchase Order Addendum dated March 8, 1996 (the
Purchase Order Addendum), and the Parties agree that Motorola's payment
of such amount out of the development funds shall not be deemed as
waiving Motorola's right to assert in any mediation or arbitration that
the quoted purchase price was intended to include the PhoneCell SXH
project.
4. The parties have been engaging in various discussions relating to
certain modifications to the Option Agreement and to the prices for
Phases II and III units as set forth in the Purchase Order Addendum;
this Amendment is not intended as resolving or dispensing of any issues
pertaining to the Option Agreement or the Purchase Order Addendum.
This Amendment shall not be deemed in any way to prejudice any rights or
either of the Parties, except with regard to the approval of the
project described in Section 3 above, and the arrangements regarding
dispute resoultion in Section 2 above.
5. Nothing herein contained shall in any way alter, waive, annul,
vary or affect any terms, conditions or provisions of the Option
Agreement, except as specifically provided herein, it being the intent
of the parties hereto that all of the terms, conditions and provisions
of the Option Agreement shall continue in full force and effect,
except as hereby amended.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to by
duly executed by their proper and duly authorized officers as of the
day and year first above written.
MOTOROLA, INC TELULAR CORPORATION
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxx
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Signature Signature
Xxxxxx X. Xxxxxx Xxxxxxx Xxxxxxx
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Printed/Typed Name Printed/Typed Name
VP & GM Wireless Access President/CEO
Business Development Director
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