AGREEMENT BY AND BETWEEN UNITED STATES OF AMERICA
LIFE POINT SYSTEMS LIMITED
PARTNERSHIP STATE OF LOUISIANA
AND
CELLNET DATA SYSTEMS, INC. PARISH OF ORLEANS
THIS AGREEMENT is between Life Point Systems Limited Partnership, a
Delaware limited partnership, represented herein by its General Partner, Life
Point Systems, Inc., a Louisiana corporation having its principal offices at
000 X. Xxxxxx X. Xxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 (hereinafter
referred to as "LICENSOR") and CellNet Data Systems, Inc., a California
corporation, having its principal offices at 000 Xxxxxxxx Xxxx, Xxx Xxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "LICENSEE").
WITNESSETH:
WHEREAS, LICENSOR has an exclusive license under certain INTELLECTUAL
PROPERTY to use, manufacture, have manufactured, sell, lease and sublease
PRODUCTS with right to grant sublicenses;
WHEREAS, LICENSEE has, pursuant to that certain Agreement between LICENSEE
and LICENSOR's licensor, Axonn Corporation ("AXONN") dated May 12, 1989 ("AXONN-
DAC AGREEMENT"), obtained a license under certain intellectual property rights
which include the INTELLECTUAL PROPERTY to manufacture, have manufactured, use
and sell products similar to, and which may include, the PRODUCTS licensed
hereunder in the UDS Market (as defined in the AXONN-DAC AGREEMENT);
WHEREAS, LICENSEE desires to obtain from LICENSOR, a worldwide,
non-exclusive sublicense and right under the INTELLECTUAL
CONFIDENTIAL
PROPERTY to use, modify, manufacture, have manufactured, sell, lease and
sublease PRODUCTS in the FIRE/SECURITY MARKET worldwide;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties agree as follows:
1. DEFINITIONS. As used herein, the term:
(a) "Affiliate" of a party (the "Subject") shall mean an entity that
directly through one or more intermediaries, controls, is controlled by or is
under common control with the Subject. For corporations, "Control" shall mean,
among other things, the direct ownership of more than fifty percent (50%) of its
outstanding voting securities. For partnerships, "control" shall mean, among
other things, the ownership of a controlling partnership interest in excess of
fifty percent (50%).
(b) "CELLNET SYSTEM" shall mean a wide area (greater than 50 square
miles) communication system developed and marketed by LICENSEE primarily for the
purpose of servicing the UDS Market and which may be expanded on a secondary
function basis. The architecture of the CELLNET SYSTEM is cellular in nature,
where Cell Masters of greater range, control and/or communicate with the cell
masters of smaller, nestled cells, which, ultimately, control, communicate
and/or monitor a number of individual end points.
(c) "DELIVERABLES" shall include LICENSOR'S existing non-customized
receiver and transmitter and the following:
(i) Schematics therefor;
(ii) PCB artworks therefor;
(iii) Software object code therefor;
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(iv) Assembly drawings therefor;
(v) Test and alignment procedures therefor;
(vi) Parts list with vendor names and costs therefor;
(vii) Interface specifications therefor;
(viii) Manufacturing information for LICENSOR's standard
non-customized transmitter and electronic components
having a direct material parts cost of approximately
[ * ] volume and not including the battery,
the PCB, or connector cost.
(ix) Manufacturing information for LICENSOR's standard
non-customized receiver and electronic component costs
having a direct materials parts cost of approximately
[ * ] volume and not including the PCB, or
connector costs.
(x) LICENSOR's standard non-customized PC application and
testing programs for LICENSEE's internal use.
(d) "DEFECT/DEFECTS" shall mean a deviation from SPECIFICATION or any
other mutually agreed to modifications to SPECIFICATION that is so material it
prevents the economical commercial marketing of the PRODUCT.
(e) "DEVICE" shall mean any of LICENSOR'S spread spectrum radio
wireless devices interfaced with CELLNET SYSTEM for
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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use in the FIRE/SECURITY MARKET as such devices currently exists, and any NEXT
GENERATION DEVICES or ADDITIONAL DEVICES (as defined in the AXONN-DAC AGREEMENT)
licensed to LICENSEE pursuant to Section 2(f) below, and all (1) modifications,
enhancements, upgrades and extensions thereof made to meet LICENSOR
SPECIFICATIONS (see Exhibit 1), (2) IMPROVEMENTS to all of the above, including
the proprietary processes, proprietary technical and other information, and
INTELLECTUAL PROPERTY rights relating thereto, whether or not patentable under
the patent laws of the United States or any foreign country. Specifically
excluded are time-of-flight, radio location/direction finding applications and
voice communication over the spread spectrum radio link.
(f) "FIRE/SECURITY MARKET" shall include the following:
(1) The fire application of this license includes use of
PRODUCTS with XX 000, XX 000, or UL 268 or the like, smoke/heat initiating
detectors, automatic elevator return, sprinkler waterflow monitoring devices,
automatic smoke evacuation systems, pull station monitoring devices, remote
siren activation and automatic door closure devices when used in conjunction
with a local receiving XX 0000, XX 0000, XX 000, XX 985 or equivalent UL or non
UL panel.
(2) The security applications include use of PRODUCTS with
contact input perimeter protection devices, IR, ultrasonic or microwave motion
detection or the like, break glass detection, entry/exit keypad interface for
system activation/deactivation and panic/emergency button alarms when used
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in conjunction with a local receiving XX 0000, XX 0000, XX 1076 residential or
commercial equivalent or equivalent UL or non UL fire/security/emergency
annunciator panel or system.
(3) Additional applications include medical alert signaling and
premises access control.
(g) "IMPROVEMENT" means LICENSOR initiated Engineering Change Order
level updates (hereinafter an Engineering Change Order shall be referred to as
an "ECO"), modifications and changes to any DEVICE licensed to LICENSEE that are
distributed to other licensees, including, but not limited to, cut circuit
trace, add jumper/trace and/or component, software updates including new object
code to enhance performance that will update existing products. IMPROVEMENTS
also include ECO level updates, including, but not limited to, hardware
component changes which require only minor software modifications, if any,
and/or software changes which require only minor hardware changes, if any. The
term IMPROVEMENT does not include technical work which requires large
investments of capital or labor to effect and excludes improvements which are
incompatible with existing systems or subsystems which require major layout
and/or software revision to incorporate. For purposes of this Agreement, the
term "large investments of capital or labor" shall mean technical work which
required, cost and/or necessitated the expenditure of [ * ], in cash or
billable services (regardless of whether such services were actually billed by
LICENSOR) and/or any combination of the two. The term IMPROVEMENT also does not
include a CHANGE for LICENSEE as set forth in Section 6.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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Technical information relating to such IMPROVEMENTS shall be provided to
LICENSEE at no additional cost except for incidental expenses which include, but
are not limited to, photocopying, telephone costs, mailing and transcribing
information to LICENSEE.
(h) "INTELLECTUAL PROPERTY" shall include all of LICENSOR's PATENT
RIGHTS, CONFIDENTIAL INFORMATION and COPYRIGHTS.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 7(a) below.
"COPYRIGHT" shall mean all copyrightable works, including mask
works, as covered by 17 U.S.C., etc.
(i) "NET SALES" shall mean gross receipts of LICENSEE determined in
accordance with generally accepted accounting principles which are directly
attributable to the distribution, licensing or other like disposition of the
PRODUCTS, net of all separately stated taxes (other than taxes on income),
interest and other finance charges paid by customers, customs duties and other
governmental charges, transportation, insurance and storage charges, and
discounts; and less refunds actually paid in connection with PRODUCT returns.
For the sale, distribution or other like disposition of PRODUCTS integrated into
a larger assembly with other hardware or software products (e.g. integrated as
part of a panel), the NET SALES attributable to the PRODUCT shall be based upon
the ratio of the list prices for the PRODUCT and the other components of the
integrated product as stand alone products, provided that where there is no list
price for a component, the
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percentage of NET SALES attributable to the PRODUCT shall mutually agreed upon
by the parties in good faith.
(j) "NEXT GENERATION DEVICES" are DEVICES which have undergone major
modifications initiated by or on behalf of LICENSOR (i) resulting from large
investments of capital or labor (as that term is defined in Section 1(f)) or
(ii) which alters the basic character or function of current DEVICES, making
them incompatible with existing systems, or (iii) which require incorporation of
major changes in hardware or software. IMPROVEMENTS are not NEXT-GENERATION
DEVICES.
(k) "PRODUCT" shall mean a product which results from or is based
upon, uses or contains INTELLECTUAL PROPERTY including, without limitation,
DEVICES licensed hereunder.
(l) "PATENT RIGHTS" shall mean patents and patent applications of all
countries to the extent the claims thereof cover any DEVICE or NEXT GENERATION
DEVICES, issued as of the Effective Date including any additions, continuations,
continuations in part, divisions, reissues or extensions based thereon. The
patents issued which relate to DEVICES issued as of the Effective Date are
listed on Exhibit 2, which list shall be updated throughout the term of this
Agreement.
(m) "ROYALTY/ROYALTIES" shall mean those amounts to be paid by
LICENSOR to LICENSEE upon sale of PRODUCTS pursuant to Section 3 of this
Agreement.
(n) "SIMILARLY SITUATED LICENSEE" shall mean a party to whom LICENSOR
has granted a worldwide license to make, use and sell
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products similar to LICENSEE's PRODUCTS, which did not involve a license
agreement in which LICENSOR received, as part of the consideration with such
other licensee, any patent rights, licenses, rights to use know-how or technical
information, nor involved a license agreement in which LICENSOR receives a
significant equity participation in such other licensee.
(o) "SPECIFICATION" means the technical specification attached as
Exhibit 1 including any supplements, CHANGES and/or IMPROVEMENT thereto.
(p) "SUBLICENSEE" means any entity which has entered into a
sublicense arrangement with LICENSEE whereby the sublicense agreement grants
such SUBLICENSEE the right to manufacture, use and sell PRODUCTS for the sole
purpose of incorporating such PRODUCT into CELLNET SYSTEM compatible devices.
The right to grant sublicenses to SUBLICENSEES for the manufacture, use and sale
of PRODUCTS in CELLNET SYSTEM compatible devices shall be limited to
SUBLICENSEES which (i) have as their primary business activity either the UDS
MARKET or are a manufacturer of utility meters, (ii) are AFFILIATES of such
entities, or (iii) are AFFILIATES of LICENSEE. SUBLICENSEES shall not have the
right to grant further sublicenses.
(q) The "Utility Distribution and Services Market" or "UDS MARKET"
means all functions associated with managing the transmission and distribution
network, demand-side management programs and customer service applications of
electricity, gas and water utilities, including substation, feeder and customer
site
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power demand automation or the equivalent thereof. Specific UDS applications
include monitoring of field equipment, automatic meter reading, real-time
pricing, remote connect/disconnect, appliance monitoring and control, load
management and customer information services or the equivalent thereof. The
following applications are specifically excluded from the UDS Market: Fire and
Security, access control, voice communication, and time of flight measurement
applications.
2. GRANT.
(a) Upon the terms and conditions set forth herein, LICENSOR hereby
grants to LICENSEE a worldwide, nonexclusive right and license (including the
right to sublicense to SUBLICENSEES) under the INTELLECTUAL PROPERTY to use,
modify, manufacture, have manufactured, sell, lease and otherwise distribute
PRODUCTS in the FIRE/SECURITY MARKET.
(b) LICENSOR hereby consents to the granting by LICENSEE to
SUBLICENSEES of worldwide, nonexclusive sublicenses under the INTELLECTUAL
PROPERTY to use, modify, manufacture, have manufactured, sell and lease and
otherwise distribute PRODUCTS in the FIRE/SECURITY MARKET, subject to the
restrictions contained within this Section 2(a). The grant to LICENSEE of a
worldwide, non-exclusive license as well as the grant of the right to LICENSEE
to sublicense to SUBLICENSEES, is contingent on LICENSEE and all SUBLICENSEES
having totally complied with the terms of this Agreement such that there are no
conditions which would permit
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termination by LICENSOR of LICENSEE or such SUBLICENSEES pursuant to
Section 2(d) or Section 10.
(c) Notwithstanding LICENSOR'S grant to LICENSEE of the right to
sublicense to entities subject to the aforereferenced qualifications, the right
to sublicense is not unqualified. More particularly, LICENSEE is required to
notify LICENSOR, in writing, of every entity to whom LICENSEE is interested in
sublicensing INTELLECTUAL PROPERTY, and LICENSOR shall have the right to
withhold approval of such SUBLICENSEE only in the event that the entity to which
LICENSEE proposes to grant a sublicense (i) appears on the list attached hereto
in Exhibit 3, (ii) is involved, at the time of the request to sublicense is
made, in the development, manufacture or sale of spread spectrum radio devices,
(iii) is focused on the development, manufacture or sale of products in the
FIRE/SECURITY MARKET, or (iv) is an entity with whom LICENSOR or its licensor,
AXONN, has had more than introductory discussions with respect to such entity
obtaining license rights to the INTELLECTUAL PROPERTY during the two (2) year
period directly preceding the date LICENSEE submits its written request;
provided that where LICENSOR claims the existence of such prior contacts,
LICENSOR shall be required to provide evidence of these earlier contacts. In
any event, LICENSOR may unreasonably withhold consent to any entity that falls
within categories (i)-(iv) enumerated above. LICENSOR shall have thirty (30)
days from the date of notice to approve or disapprove any potential SUBLICENSEE.
Failure to
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respond within such period shall be deemed to be approval to grant a sublicense
to such entity.
(d) To the extent the provisions of this Agreement apply to a
SUBLICENSEE, LICENSEE warrants the discharge of all of the SUBLICENSEE'S
obligations hereunder; provided that LICENSEE shall be deemed to have fulfilled
its obligations under this Agreement to cure a breach by a SUBLICENSEE with
regard to such SUBLICENSEE's performance of the terms of this agreement if
LICENSEE takes and continues to pursue diligent efforts to cure such breach,
including without limitation the payment of royalties due from such SUBLICENSEE
hereunder and to take legal or other action against such SUBLICENSEE to restrain
such SUBLICENSEE from pursuing such breaching behavior. LICENSEE shall
reimburse LICENSOR for reasonable costs incurred by LICENSOR in assisting
LICENSEE in pursuing a remedy with such a SUBLICENSEE in breach. LICENSEE
agrees that it will use its best efforts to ensure that all SUBLICENSEES abide
by the terms of their sublicense agreements and will keep LICENSOR apprised of
its activities to enforce such provisions with particular SUBLICENSEE. In
addition, LICENSEE shall ensure that LICENSOR will have the right to enforce
such agreements as a third party beneficiary, and LICENSEE agrees that
(i) LICENSOR may join LICENSEE as a named plaintiff in any suit brought by
LICENSOR against SUBLICENSEES, (ii) LICENSEE will take such other actions, give
such information and render such aid, at LICENSOR's request, as may be necessary
to allow LICENSOR to bring and prosecute such suits.
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(e) LICENSEE agrees that it shall provide in each sublicense
agreement that, when a SUBLICENSEE ceases to be such, all rights of such former
SUBLICENSEE to use LICENSOR'S INTELLECTUAL PROPERTY shall immediately cease and
such former SUBLICENSEE shall immediately render unusable all portions of
INTELLECTUAL PROPERTY then under its control and shall immediately destroy or
deliver to LICENSEE each and every other part of such INTELLECTUAL PROPERTY in
the SUBLICENSEE'S possession.
(f) LICENSOR agrees to offer to LICENSEE license rights to NEXT
GENERATION DEVICES developed by LICENSOR during the term of this Agreement
subject to all the terms and conditions of this Agreement, with the exception of
any initial license fee and royalty rate which shall be mutually negotiated by
the parties in good faith which fee and royalty rate shall be the same as any
other SIMILARLY SITUATED LICENSEE. Such agreement may be documented by way of
Attachment to this Agreement. Additionally, to the extent that any ADDITIONAL
DEVICES (as defined in the AXONN-DAC AGREEMENT), IMPROVEMENTS or additions to
the INTELLECTUAL PROPERTY which are licensed to LICENSEE by AXONN under the
AXONN-DAC AGREEMENT are licensed by AXONN to LICENSOR for use in the
FIRE/SECURITY MARKET, such ADDITIONAL DEVICES, IMPROVEMENTS or additions to the
INTELLECTUAL PROPERTY shall be automatically included as DEVICES, IMPROVEMENTS
or INTELLECTUAL PROPERTY hereunder and licensed by LICENSOR to LICENSEE under
the terms and conditions of this Agreement.
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3. ROYALTY.
(a) As partial consideration for the license granted under Section 2,
LICENSEE agrees to pay an initial license fee of [ * ] at the execution of
this Agreement. Notwithstanding the foregoing, LICENSOR understands and
acknowledges that this [ * ] payment was made by LICENSEE to AXONN ON
LICENSOR's behalf under the AXONN-DAC AGREEMENT and that upon the Effective Date
of this Agreement, AXONN shall pay LICENSOR such [ * ] in fulfillment of such
obligation.
(b) As compensation for the license, as provided under Section 2(a)
and Section 2(b), LICENSEE agrees to pay [ * ]. The [ * ] fee shall
be paid over eighteen (18) months in eighteen (18) equal payments effective
April 1, 1994, with all payments in arrears paid on the Effective Date, and all
subsequent payments due on the same day of the subsequent months until the full
amount is paid. [ * ] compound interest shall be charged on the
unpaid balance beginning upon the Effective Date. LICENSEE may prepay the
upfront license fee which remains due at any time without penalty.
(c) As additional consideration for the licenses granted herein,
LICENSEE shall pay a royalty on each Product Sold, leased or otherwise disposed
of by it under the rights granted under the license set forth in Section 2
above. Such royalty shall be calculated to be the lower of either:
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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(i) the royalties set forth in the chart below based upon (x) what kind of
device the PRODUCT is and (y) the primary environment for which such
PRODUCT is deployed:
PERSONAL/RESIDENTIAL MIXED COMMERCIAL/INDUSTRIAL
-------------------- ----- ---------------------
Transmitter: [ * ] [ * ] [ * ]
Receiver: [ * ] [ * ] [ * ]
Transceiver: [ * ] [ * ] [ * ]
(ii) a royalty equal to [ * ] of Net Sales for PRODUCTS sold for
use in the Personal/Residential, Mixed or Commercial/Industrial
Markets respectively; provided that where a PRODUCT is not sold, but
rather is leased or otherwise disposed of, the Net Sales for such
PRODUCT shall be deemed to be LICENSEE's total cost for the complete
manufacture and test of such PRODUCT plus [ * ];
provided that such royalty shall not be less than [ * ]
of the rate for such Product type specified in the chart contained in
paragraph (i) above.
Whether a PRODUCT is best classified as used in a Personal/Residential
environment, a Commercial/Industrial environment or may be used in both (a Mixed
environment) shall be based upon the viewpoint of a neutral third party familiar
with the wireless communications industry; provided that the parties agree that
for purposes of this Agreement, Commercial/Industrial PRODUCTS shall include,
but shall not be limited to a Product sold for use in the non-residential market
under the UL 268/864 Underwriters
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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Laboratories or equivalent non-residential use listed system, and Mixed PRODUCTS
shall include long range transmitters and transceivers incorporated into an
alarm system located at or in a protected premises which signal a central alarm
station located at a site outside the premises.
Where the parties are unable to agree as to the proper classification of a
PRODUCT, such dispute in itself shall not be deemed a breach of this Agreement,
but rather the question of which category such PRODUCT properly falls in shall
be determined according to the following procedure.
For any dispute as to proper classification of a Product, the parties shall
first attempt to negotiate in good faith a written resolution of such dispute
for a period not to exceed thirty (30) days from the date of receipt of a
party's request for such negotiation. Such negotiations shall be conducted by
Chief Executive Officers of each party, or other senior officer appointed by the
CEO who have authorization to resolve any such dispute. In the event the
parties cannot negotiate a written resolution to such dispute during this
thirty(30) day negotiation period, the parties shall then submit such dispute or
claim to nonbinding mediation with Judicial Arbitration & Mediation Services
("JAMS") in Santa Xxxxx County, California. The mediation may be initiated by
the written request of either party to the other party, shall commence within
fifteen (15) days of receipt of such notice and shall be conducted in accordance
with the standard mediation procedures established by JAMS, unless otherwise
agreed by the parties. The
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mediation shall not exceed a period of thirty (30) days. Each party shall bear
its own expenses in any such mediation; provided that the parties shall split
the costs charged by JAMS.
(d) Notwithstanding the foregoing, no ROYALTY shall be due on
PRODUCTS provided to others as samples or demonstration units, used for Product
development purposes, or returned to LICENSEE or its SUBLICENSEES for refund.
ROYALTIES paid on PRODUCTS returned for refund shall be creditable against
future ROYALTIES.
(e) The parties understand and acknowledge that many PRODUCTS which
LICENSEE may sell or lease under the rights granted under the AXONN-DAC
AGREEMENT may also have uses in the FIRE/SECURITY MARKET and the parties wish to
ensure that LICENSEE will not be obligated to pay ROYALTIES to both LICENSOR and
AXONN upon the sale or lease of any single PRODUCT. Therefore, where a PRODUCT
is sold or leased to a customer pursuant to the rights granted under the
AXONN-DAC AGREEMENT for which LICENSEE has become obligated to pay a ROYALTY to
AXONN under the AXONN-DAC AGREEMENT, and the customer may also use the PRODUCT
in the FIRE/SECURITY MARKET, LICENSEE shall have no obligation to pay LICENSOR a
ROYALTY under this Agreement so long as LICENSEE actually pays the ROYALTY due
AXONN under the AXONN-DAC AGREEMENT.
(f) A PRODUCT shall be deemed sold or leased at the time of first
invoicing or, if not invoiced, at the time of first shipment, delivery or other
transfer to other than LICENSEE, or when first actually put into use, including
use by LICENSEE, whichever
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occurs first, excluding internal use by LICENSEE. For purposes of determining
ROYALTIES, a lease shall be deemed a sale.
(h) Should LICENSEE acquire the right under this Agreement to pursue
infringers of LICENSOR'S INTELLECTUAL PROPERTY, if LICENSEE pursues an infringer
to judgement, LICENSEE shall pay LICENSOR a royalty equal to [ * ] of
the amount received by LICENSEE from any such infringer as damages for the
infringement of LICENSOR'S INTELLECTUAL PROPERTY rights, less legal fees and
other expenses incurred in pursuing such action. In no event will any damages
awarded with respect to infringement of any of LICENSEE'S intellectual property
be included in the calculation of royalties due under this subparagraph 3(h).
(g) During the term of this Agreement, LICENSEE shall deliver to
LICENSOR, within forty-five (45) days after the end of each calendar quarter, a
ROYALTY report indicating the NET SALES from the sale of PRODUCTS in the
preceding calendar quarter and the computation of the ROYALTY due and payable
thereon. Each ROYALTY report shall be accompanied by the payment of the
corresponding ROYALTIES due LICENSOR, less any taxes or other charges withheld.
Overdue payments hereunder shall be subject to a late payment charge calculated
at an annual prime rate (as quoted by Citibank, N.A., New York, U.S.A.), plus
two (2) percentage points during delinquency. If the amount of such charge
exceeds the maximum permitted by law, such charge shall be reduced to such
maximum.
(h) LICENSEE shall keep full and true books of account and other
records in sufficient detail so that the ROYALTIES
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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payable to LICENSOR hereunder can be properly ascertained for a period of three
(3) years after the payment to which they pertain. LICENSEE agrees, on the
request of LICENSOR no more frequently than two times per year, and at
LICENSOR'S expense, to permit an independent certified public accountant,
selected by LICENSOR and to whom LICENSEE has no reasonable objection, to have
access to such books and records as may be necessary to determine, in respect of
any accounting period ending not more than three (3) years prior to the date of
such request, the correctness of any report or payment under this Agreement, or
to obtain information as to the amounts payable in the case of failure of
LICENSEE to report. Any such accountant entitled hereunder to examine the books
of LICENSEE shall be entitled to make such examination at LICENSEE'S business
premises during reasonable business hours, and shall be entitled to disclose
only the amount of discrepancy, if any, due LICENSOR. LICENSOR shall promptly
furnish a copy of such accountant's calculations to LICENSEE, and unless
LICENSOR shall receive from LICENSEE a written objection within thirty (30) days
thereafter, with respect to the calculations of such accountant, the report of
such accountant as to the correctness of any report or amount payable hereunder
shall be conclusive and binding upon the parties hereto for all the purposes of
this Agreement. In the event a discrepancy of three percent (3%) or less
underpayment is found, the fees, costs and expenses by the accountant shall be
borne by LICENSOR; otherwise, the costs shall be borne by LICENSEE. Lastly, if
a discrepancy is discovered that is in LICENSEE'S favor, i.e.,
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the LICENSEE overpaid ROYALTIES payable to LICENSOR hereunder, such excess
amounts shall be repaid by LICENSOR to LICENSEE, but LICENSEE will not be
entitled to a "late payment charge" or interest on this amount.
4. OBLIGATIONS OF LICENSOR.
(a) LICENSOR agrees to provide LICENSEE upon execution of this
Agreement with DELIVERABLES. Additionally, LICENSOR shall provide LICENSEE with
equivalent technical information for any (i) IMPROVEMENTS when such IMPROVEMENTS
are made generally available by LICENSOR to its other licensees in the
FIRE/SECURITY MARKET, and (ii) NEXT GENERATION DEVICES or other NEW TECHNOLOGY
upon LICENSOR's grant to LICENSEE of a license to such.
(b) LICENSOR guarantees that the transmitter and receiver per the
DELIVERABLES meet FCC part 15.126, Rules for Spread Spectrum Unlicensed
Operation, as well as NFPA 72-A for COMMERCIAL fire applications. In the event
that either the transmitter and/or the receiver should fail to meet such Rules,
and such failure shall not be cured within sixty (60) days after written notice
thereof is given by LICENSEE to LICENSOR, then all amounts paid by the LICENSEE
to the LICENSOR will be refunded within thirty (30) days thereafter.
(c) LICENSOR agrees to provide IMPROVEMENTS to LICENSEE during the
term of this Agreement.
5. NEXT GENERATION TECHNOLOGY. Certain enhancements, changes,
modifications, and the like, other than an IMPROVEMENT initiated by LICENSOR, or
a CHANGE as defined in Section 6, may
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result in a NEXT GENERATION DEVICE. In the event LICENSOR offers to license
technology related to such NEXT GENERATION DEVICE, it shall offer such NEXT
GENERATION DEVICES to LICENSEE subject to the provisions of Section 2(f)
containing terms and conditions comparable to those offered other SIMILARLY
SITUATED LICENSEES.
6. RIGHTS AND OBLIGATIONS OF LICENSEE.
(a) LICENSEE shall have the right to make modifications, improvements
or enhancements (including ASIC development) (a "CHANGE") to the DEVICES
licensed hereunder either by submitting to LICENSOR a request for a CHANGE or by
implementing the CHANGE itself. Any CHANGE implemented by LICENSEE at its
option may be provided to LICENSOR solely for the purposes of enabling LICENSOR
to perform support services as provided herein, and no such delivery will
constitute a license by LICENSEE to LICENSOR to make use of such CHANGE. If
LICENSEE implements a CHANGE, any warranties made by LICENSOR in favor of
LICENSEE will not apply to such change to the extent they relate to such CHANGE.
(b) If LICENSEE submits a request for a CHANGE to LICENSOR, such
request shall be in writing. Within twenty (20) business days of receipt of
such request, LICENSOR will provide LICENSEE with an estimate to implement the
CHANGE based on the hourly rates and costs set forth in Section 6(c) below.
Upon receipt of a Purchase Order or written authorization from LICENSEE,
LICENSOR shall implement the requested CHANGE in accordance with a schedule to
be mutually agreed upon.
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(c) If LICENSEE requests a CHANGE, LICENSEE shall pay all engineering
costs incurred for such customization to LICENSEE'S specifications or
manufacturing requirements which shall be billed and accounted for bi-weekly and
due net 10-days, on the following basis, namely:
Senior Engineer [ * ]
Engineer [ * ]
Programmer [ * ]
Technician [ * ]
Research Associate [ * ]
Project Engineer [ * ] and
Support [ * ]
The above rates may be changed upon thirty (30) days notice to and
agreement between the parties.
Any miscellaneous buy-out time or materials will be billed at
[ * ]. All travel necessitated by and/or requested by
LICENSEE shall be billed at [ * ] of the above rates and no more
than [ * ] hours being charged on any one day.
(d) All right, title and interest in and to INTELLECTUAL PROPERTY
created prior to the effective date of this Agreement shall belong to and/or
remain the property of the party who developed, created or presently owns such
INTELLECTUAL PROPERTY and, except for grant of a license to LICENSEE under
Section 2 or as otherwise explicitly provided herein, no license is implied or
granted herein to any such existing INTELLECTUAL PROPERTY.
All work done by LICENSOR in connection with a CHANGE at LICENSEE'S
written request will be at LICENSEE'S expense as set forth in (c) of this
Section 6. Any resulting INTELLECTUAL
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to the
omitted portions.
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PROPERTY created by the parties jointly or individually in connection with such
CHANGE and paid for by LICENSEE shall belong to LICENSEE. LICENSOR agrees to
assign (or cause to be assigned) and does hereby assign and deliver fully to
LICENSEE any INTELLECTUAL PROPERTY which LICENSOR may obtain as part of
developing such CHANGE.
The INTELLECTUAL PROPERTY described in the immediately preceding
paragraph that is to belong to LICENSEE, shall be limited to circuit board
artworks, resulting optimized biasing resistor and capacitor coupling values or
specific, unique LICENSEE application interfaces. Any other areas will be
mutually agreed to and, specifically listed in a separate writing signed by the
parties. This Section 6 does not, however, preclude LICENSOR from providing
similar engineering services to other customers, without using any of the
INTELLECTUAL PROPERTY of LICENSEE.
(e) LICENSEE shall not be precluded from using LICENSOR'S standard
radio communications protocols, however, LICENSOR agrees to modify LICENSOR'S
standard radio communications protocols to LICENSEE'S specification upon request
by LICENSEE. Such protocols shall be designed with the assistance of LICENSOR
to prevent interference with, or acceptability to, other licensees and
sublicensees of LICENSOR.
(f) It is acknowledged and agreed by LICENSEE that should a PRODUCT
based on LICENSOR'S INTELLECTUAL PROPERTY not be competitive and should LICENSEE
desire to commence the development of an alternative spread spectrum device
(hereinafter: "NEW
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DEVICE") not covered by LICENSOR'S INTELLECTUAL PROPERTY, such development shall
only be conducted by employees, subcontractors, agents or assigns of LICENSEE
who have not had access to LICENSOR'S INTELLECTUAL PROPERTY licensed herein
(including source code to LICENSOR'S software included in a DEVICE) and such NEW
DEVICE cannot use/infringe on LICENSOR'S INTELLECTUAL PROPERTY, save that
LICENSOR acknowledges and agrees that any such NEW DEVICE would and may transmit
and receive on the same frequencies, have the same spread spectrum parameters
and the same packet data format as employed in other DEVICES manufactured for or
by LICENSEE. It is further acknowledged by LICENSEE that to the extent that any
NEW DEVICE employs the same spread spectrum parameters or data format, and such
spread spectrum parameters are covered by valid claims of any of LICENSOR'S
patents, LICENSEE shall be obligated to continue Section 3(b) ROYALTY payments
to LICENSOR. LICENSOR in turn acknowledges that LICENSEE shall not be
restricted in any other non-spread spectrum radio development which does not
violate LICENSOR'S valid patents or use LICENSOR'S software source code in any
such NEW DEVICE.
7. CONFIDENTIAL INFORMATION.
(a) As used in this Agreement, the term "Confidential Information"
shall mean any information disclosed by one party to the other pursuant to this
Agreement which is in written, graphic, machine readable or other tangible form
and is marked "Confidential", "Proprietary" or in some other manner to indicate
its confidential nature. Confidential Information may also include
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oral information disclosed by one party to the other pursuant to this Agreement,
provided that such information is designated as confidential at the time of
disclosure and reduced to a written summary by the disclosing party, within
thirty (30) days after its oral disclosure, which is marked in a manner to
indicate its confidential nature and delivered to the receiving party.
Confidential Information shall also include information that may be disclosed by
AXONN to LICENSEE on behalf of LICENSOR as long as such disclosure is labeled as
provided herein.
(b) Each party shall treat as confidential all Confidential
Information of the other party, shall not use such Confidential Information
except as expressly set forth herein or otherwise authorized in writing, shall
implement reasonable procedures to prohibit the disclosure, unauthorized
duplication, misuse or removal of the other party's Confidential Information and
shall not disclose such Confidential Information to any third party except as
may be necessary and required in connection with the rights and obligations of
such party under this Agreement, and subject to confidentiality obligations at
least as protective as those set forth herein. Without limiting the foregoing,
each of the parties shall use at least the same procedures and degree of care
which it uses to prevent the disclosure of its own confidential information of
like importance to prevent the disclosure of Confidential Information disclosed
to it by the other party under this Agreement, but in no event less than
reasonable care.
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(c) Notwithstanding the above, neither party shall have liability to
the other with regard to any Confidential Information of the other which:
(i) was generally known and available in the public domain at
the time it was disclosed or becomes generally known and available in the public
domain through no fault of the receiver;
(ii) was known to the receiver at the time of disclosure as shown
by the files of the receiver in existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the
discloser;
(iv) was independently developed by the receiver without any use
of the Confidential Information and by employees or other agents of the receiver
who have not been exposed to the Confidential Information, provided that the
receiver can demonstrate such independent development by documented evidence
prepared contemporaneously with such independent development;
(v) becomes known to the receiver from a source other than the
discloser without breach of this Agreement by the receiver and otherwise not in
violation of the discloser's rights; or
(vi) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; provided, that the
receiver shall provide prompt, advanced notice thereof to enable the discloser
to seek a protective order or otherwise prevent such disclosure.
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(d) Each party shall obtain the execution of proprietary
non-disclosure agreements with its employees, agents and consultants having
access to Confidential Information of the other party, and shall diligently
enforce such agreements, or shall be responsible for the actions of such
employees, agents and consultants in this respect.
(e) If either party breaches any of its obligations with respect to
confidentiality and unauthorized use of Confidential Information hereunder, the
other party shall be entitled to equitable relief to protect its interest
therein, including but not limited to injunctive relief, as well as money
damages.
8. MARKING.
(a) LICENSEE agrees to affix to each PRODUCT or the package
containing such PRODUCT or to an insertion slip in the package with each
PRODUCT, a legible notice reading: "Licensed under one or more of the following
Patents," followed by a list of patent numbers applicable to such PRODUCT taken
from attached Exhibit 2 or as otherwise instructed by LICENSOR.
(b) Neither the granting of the license herein or the acceptance of
ROYALTIES hereunder shall constitute an approval or acquiescence in LICENSEE'S
practices with respect to trademarks, trade names, corporation names,
advertising, or similar practices with respect to the PRODUCT, nor does the
granting of any license hereunder constitute an authorization or approval of, or
acquiescence in the use of any tradename or trademark of LICENSOR or its
affiliates in connection with the manufacture, advertising, or
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marketing of PRODUCT; and LICENSOR hereby expressly reserves all rights with
respect thereto.
9. DURATION AND TERMINATION/CANCELLATION.
(a) Unless otherwise terminated/canceled as hereinafter set forth,
this Agreement and the licenses under PATENT RIGHTS shall continue from the date
of execution of this Agreement through the expiry date of the last to expire of
any one of the PATENT RIGHTS. The Agreement may be extended on similar terms
upon the mutual agreement of LICENSOR and LICENSEE.
(b) LICENSOR shall have the right to terminate this Agreement upon
notice if LICENSEE shall at any time default in its performance of any
obligation hereunder, and such default is not cured within sixty (60) days after
written notice thereof is given by LICENSOR to LICENSEE. LICENSEE shall provide
LICENSOR in every sublicense agreement, an equivalent right to terminate such
SUBLICENSEE'S rights to the INTELLECTUAL PROPERTY licensed hereunder. LICENSEE
or SUBLICENSEE shall have the right to cure any such default up to, but not
after, the giving of such notice of termination/cancellation.
(c) LICENSOR shall have the right to terminate/cancel this Agreement
by giving written notice of termination/cancellation to LICENSEE in the event of
any one of the following, such termination/cancellation being effective upon
receipt of such notice or five (5) days after such notice is mailed, whichever
is earlier:
(i) Liquidation of LICENSEE;
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(ii) Insolvency or bankruptcy of LICENSEE, whether voluntary or
involuntary; provided that if involuntary, LICENSOR may only terminate this
Agreement under this Section 10 if such bankruptcy proceeding is not dismissed
within sixty (60) days of filing.
(iii) Failure of LICENSEE to satisfy any judgement against it
relative to this Agreement; or
(iv) Appointment of a trustee or receiver for LICENSEE unless
previously agreed to in writing by LICENSOR.
(d) The waiver of any default under this Agreement by LICENSOR shall
not constitute a waiver of the right to terminate/cancel this Agreement for any
subsequent or like default, and the exercise of the right of
termination/cancellation shall not impose any liability by reason of
termination/cancellation nor have the effect of waiving any damages to which
LICENSOR might otherwise be entitled.
(e) Termination/cancellation of this Agreement, shall in no manner
interfere with, affect or prevent the collection by LICENSOR of any and all sums
of money due to it under this Agreement. Upon termination/cancellation of this
Agreement for any reason, LICENSEE'S payments required by Section 3, but not yet
due, shall become immediately due and payable, and LICENSEE'S inventory of
DEVICE's for which payments are not yet required by Section 3 shall either, at
LICENSEE'S option, (i) be included in LICENSEE'S and SUBLICENSEES' payments as
though sales of such DEVICE had taken place prior to termination/cancellation of
this Agreement; or
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(ii) be destroyed, provided appropriate certification is given to LICENSOR by an
officer of LICENSEE.
(f) LICENSEE shall have the right to terminate this Agreement upon
notice if LICENSOR shall at any time default in its performance of any
obligation hereunder, and such default is not cured within sixty (60) days after
written notice thereof is given by LICENSEE to LICENSOR. LICENSOR shall have
the right to cure any such default up to, but not after, the giving of such
notice of termination/cancellation.
(g) LICENSEE shall have the right to terminate/cancel this Agreement
by giving written notice of termination/cancellation to LICENSOR in the event of
any one of the following, such termination/cancellation being effective upon
receipt of such notice or five days after such notice is mailed, whichever is
earlier:
(i) Liquidation of LICENSOR;
(ii) Insolvency or bankruptcy of LICENSOR, whether voluntary or
involuntary; provided that if involuntary, LICENSOR may only terminate this
Agreement under this Section 10 if such bankruptcy proceeding is not dismissed
within sixty (60) days of filing.
(iii) Failure of LICENSOR to satisfy any judgement against it
relative to this Agreement; or
(iv) Appointment of a trustee or receiver for LICENSOR unless
previously agreed to in writing by LICENSEE.
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(h) The waiver of any default under this Agreement by LICENSEE shall
not constitute a waiver of the right to terminate/cancel this Agreement for any
subsequent or like default, and the exercise of the right of
termination/cancellation shall not impose any liability by reason of
termination/cancellation nor have the effect of waiving any damages to which
LICENSEE might otherwise be entitled.
(i) This Agreement shall survive the termination of any sublicense
agreement with a SUBLICENSEE by LICENSOR provided LICENSEE is not in default
under this Agreement. Additionally, any sublicense agreement shall survive
termination of this Agreement with LICENSEE; provided that effective immediately
upon termination of this Agreement, LICENSOR shall have the right to enforce
directly all provisions of LICENSEE'S agreements with its SUBLICENSEES with
respect to use of LICENSOR'S INTELLECTUAL PROPERTY and ROYALTY payments pursuant
to the terms of Section 2(d). LICENSEE agrees to include provisions in its
sublicense agreements to confirm such rights.
10. WARRANTIES.
(a) RIGHTS TO LICENSE. LICENSOR warrants to LICENSEE, (i) that it
has the exclusive licensing rights to the INTELLECTUAL PROPERTY, and (ii) that
it has the right to enter into this Agreement and to grant the licenses rights
granted hereunder.
(b) FCC COMPLIANCE. LICENSOR warrants that a transmitter and
receiver manufactured using DELIVERABLES will meet
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Federal Communications Commission Part 15.126 Rules for Spread Spectrum
Unlicensed Operation.
(c) DEFECTS. LICENSOR warrants that the DELIVERABLES provided per
Section 4(a) will be free from DEFECTS. If a DEFECT is found LICENSOR will
correct DEFECT and provide updated DELIVERABLES.
(d) INSURANCE. LICENSEE agrees to name LICENSOR as an additional
insured on its general liability insurance coverage and hold LICENSOR harmless
to the extent of any potential liabilities which may arise from LICENSEE'S
exploitation of PRODUCTS unless and to the extent that such damages or injuries
are due to the intentional act or gross negligence of LICENSOR. LICENSEE agrees
to send LICENSOR a copy of an insurance binder noting LICENSOR as an additional
insured on LICENSEE'S general liability insurance coverage.
11. PROTECTION OF INTELLECTUAL PROPERTY.
(a) PATENT INFRINGEMENT.
(i) LICENSOR warrants that as of the effective date, to the best
of LICENSOR'S knowledge, the use of the licensed information will neither
infringe any patent, copyright, mask right, nor incorporate proprietary
information belonging to any third party. LICENSOR, at its own expense, will
defend and (to the extent provided herein) hold LICENSEE harmless against any
claims that INTELLECTUAL PROPERTY being licensed under this Agreement infringes
any patent, copyright, trade secret or other intellectual property right of any
third party. In the case a resulting
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judgement is made against LICENSEE, then LICENSOR's liability for damages
awarded against LICENSEE will be limited to fifty percent (50%) of all ROYALTIES
paid by LICENSEE under the provisions of Section 3 of this Agreement. LICENSOR
shall have full control of the defense of any such suit, and LICENSEE shall
render all reasonable assistance (at LICENSOR's expense) to LICENSOR in
connection with any suit to be defended by LICENSOR and shall have the right to
be represented therein by advisory counsel of its choice at its expense.
(ii) In the event that LICENSEE, in exercising the rights granted
under this Agreement, shall be unable to continue to exercise the rights under
this Agreement as a result of the existence of patents or other intellectual
property rights now held or which will be held by others in the field, LICENSOR
may, to minimize its liability under Section 11(a)(i) above, at its sole option
and expense, either: (i) procure for LICENSEE the right to exercise its rights
as granted herein, or (ii) replace or modify the infringing technology so that
it is functionally equivalent but non-infringing products.
(b) PATENT PROTECTION. (i) LICENSOR shall always have the right to
prosecute any entity it believes infringes upon its INTELLECTUAL PROPERTY.
LICENSEE is obligated to render all reasonable assistance requested by LICENSOR
in connection with any action being pursued by LICENSOR.
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12. NOTICES.
(a) All notices, requests, demands and other communications under
this Agreement or in connection therewith shall be given to or be made upon the
respective parties hereto as follows:
TO LICENSEE: CellNet Data Systems, Inc.
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Chairman & CEO
TO LICENSOR: Life Point Systems, Inc.
000 X. Xxxxxx X. Xxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: H. Xxxxxxx Xxxxxxxxxx, Xx.,
President
with a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
(b) All notices, requests, demands and other communications given or
made in accordance with the provisions of this Agreement shall be in writing,
shall be forwarded by registered mail and shall be deemed to have been given
when received by addressee, or upon tender where delivery cannot be accomplished
due to some fault of addressee.
13. ASSIGNMENT.
(a) This Agreement shall be binding upon and inure to the benefit of
LICENSOR, its legal representatives, successors, heirs, and assigns. Nothing
contained herein shall prevent LICENSOR from assigning this Agreement to any
successor entity acquiring all or substantially all of its assets whether by
sale, merger, operation or otherwise (including all rights in the INTELLECTUAL
PROPERTY). Additionally, LICENSOR shall have the
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right to assign or pledge to any person, without the necessity of obtaining the
consent of LICENSEE, all or any portion of the ROYALTIES due LICENSOR hereunder.
Also, LICENSOR shall have the right to assign this Agreement to any entity in
which AXONN or H. Xxxxxxx Xxxxxxxxxx, Xx., the current president of LICENSOR,
and the other original founding partners of LICENSOR owns more than 51% of the
outstanding shares entitled to vote or other controlling equity interest,
subject to LICENSEE'S reasonable approval that such assignee is reasonably
capable of and willing to perform LICENSOR'S obligations under this Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of
LICENSEE its legal representatives, successors, heirs and assigns, and may be
assigned by LICENSEE, without approval from LICENSOR, to any successor entity
acquiring all or substantially all of its assets whether by sale, merger,
operation or otherwise.
(c) This Agreement shall be deemed to be a contract made under the
laws of the State of Louisiana, United States of America, and for all purposes
shall be interpreted in its entirety in accordance with the laws of said State.
No litigation between the signatories to this Agreement shall be instituted or
conducted in any court other than a competent court in the State of Louisiana.
The parties hereby consent to service of process and their agents appointed
herein for such purpose, and agree not to contest the jurisdiction and choice of
law agreed upon in this clause for any reason. In the event this Agreement is
translated into any
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language other than the English language for any purpose, the parties agree that
the English version shall be the governing version.
(d) Neither LICENSOR nor LICENSEE shall be deemed a joint venturer or
partner of the other nor shall this document be deemed to constitute the parties
hereto to be an association, partnership, unincorporated business or other
separate entity.
14. FURTHER ASSURANCES. At any time or from time to time on and after the
date of this Agreement, each party shall, at the request of the other party
(i) deliver to the requesting party such records, data or other documents
consistent with the provisions of this Agreement, (ii) execute, and deliver or
cause to be delivered, all such assignments, consents, documents or further
instruments of transfer or license, and (iii) take or cause to be taken all such
other actions, as the requesting party may reasonably deem necessary or
desirable in order for the requesting party to obtain the full benefits of this
Agreement and the transactions contemplated hereby.
15. MODIFICATION. This Agreement embodies all of the understandings and
obligations between the parties with respect to the subject matter hereof. No
amendment or modification of this Agreement shall be valid or binding upon the
parties unless made in writing, signed on behalf of each of the parties by their
respective proper officers thereto duly authorized and validated.
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16. COMPLIANCE WITH LAWS.
(a) Any payment which requires governmental approval or permission
under Foreign Exchange Control Law or other law, if any, shall be made in
accordance with such law.
(b) LICENSEE agrees to comply with all provisions of the Export
Administration Regulations of the United States Department of Commerce, as they
currently exist and as they may be amended from time to time.
(c) This Agreement may be executed in two (2) or more counterparts,
all of which, taken together, shall be regarded as one and the same instrument.
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IN WITNESS WHEREOF, the representatives hereunto duly authorized on behalf
of LICENSOR have set their hands hereto this 12th day of August, 1994, and the
representatives hereunto duly authorized on behalf of LICENSEE have set their
hands hereto this 12th day of August, 1994.
LIFE POINT SYSTEMS LIMITED
PARTNERSHIP
By: /s/H. Xxxxxxx Xxxxxxxxxx, Xx.
------------------------------
H. Xxxxxxx Xxxxxxxxxx, Xx.,
Title: President of LIFE POINT
SYSTEMS, INC., its General
Partner
Attest:
/s/
-----------------------------
CELLNET DATA SYSTEMS, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------
Xxxx X. Xxxx,
Title: Chairman and CEO
Attest:
/s/
-----------------------------
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EXHIBIT 1
SPECIFICATION 6.18.88-GJ
------------------------
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EXHIBIT 2
PATENT RIGHTS
--------------
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EXHIBIT 3
SUBSIDIARY LICENSEE/LICENSEES OF LICENSEE
------------------------------------------
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