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EXHIBIT 10.54
MOBILITY LICENSE AGREEMENT (2C)
This Mobility License Agreement (2C) (hereinafter "Agreement") is
entered into by and between Mobility Electronics, Inc. ("Mobility"), a Delaware
corporation with its principal place of business at 0000 X. Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and 2C Computing, Inc. ("2C"), an Alabama corporation
with its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000 effective as of the 12th day of July, 2000.
I.
RECITALS
1.1 Mobility owns the Mobility Technology (as herein defined), has
United States Patent Nos. 6,070,214 and 6,088,752 (the "Patents"), and pending
United States Patent Applications pertaining to the Mobility Technology, and has
the right to grant non-exclusive licenses thereunder.
1.2 2C desires to obtain from Mobility, and Mobility hereby
desires to grant to 2C, a certain non-exclusive license under the Mobility
Technology as provided in this Agreement.
II.
DEFINITIONS
The following terms shall have meanings ascribed to them below:
2.1 "2C TECHNOLOGY" shall mean (i) any current or future PCI or
extended or remote PCI bus or split computer technology and all related
technology and intellectual property (including without limitation software,
patents, patents pending, trade secrets, ASIC chips and related intellectual
property blocks, designs, specifications and future enhancements, modifications
and variations thereto) now or in the future owned, developed, acquired or
licensed by 2C; and (ii) all technology and intellectual property of 2C which
enhances, modifies or improves the split computer technology of Cybex Computer
Products Corporation, an Alabama corporation ("Cybex"), represented by United
States Patent Application No. 09-430,163 for a "split computer architecture" and
United States Continuation Patent Application No. 09-430,162 or the split bridge
technology of Cycom, LLC, an Alabama limited liability company ("Cycom"), and,
in each case, all related intellectual property, including without limitation
software, patents, patents pending, trade secrets, ASIC chips and related
intellectual property blocks, designs, specifications, and any future
enhancements, modifications, variations thereto, and all intellectual property
associated with the adaptation of cables and connectors adapted for use with
such technology and future generations of any of the above, and any technology
developed or acquired by or for, or licensed by, 2C that incorporates any of the
above technology. Notwithstanding the above, 2C Technology does not include any
incorporated Mobility Technology or any technology not owned by 2C or already
licensed to Mobility by Cybex.
2.2 "MOBILITY TECHNOLOGY" shall mean all of Mobility's Split
Bridge(TM) Technology (as hereinafter defined), including Mobility's current
Split Bridge(TM) ASIC chip commonly
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known as "Merlin" and ASIC Split Bridge(TM) chips currently under development
by Mobility with LSI Logic or developed in the future ("Mobility Split
Bridge(TM) Chips"). This further includes all related intellectual property and
Mobility Split Bridge(TM) Chip intellectual property including without
limitation software, patents (including, without limitation, the Patents) and
patents pending, trade secrets, ASIC chips and related IP blocks, designs,
specifications, and any future enhancements, modifications, variations thereto,
and all intellectual property associated with the adaptation of cables and
connectors adapted for use with Mobility's Split Bridge(TM) Chips and technology
and future generations of any of the above. "Split Bridge Technology" is the
technology which allows a main computer PCI bus to be extended to a remote
location by connecting two proprietary Mobility Split Bridge(TM) Chips with a
high speed cable, and includes all of the above. Mobility Technology does not
include any incorporated 2C Technology.
2.3 "PERMITTED APPLICATIONS" shall mean any product or device
containing Mobility Technology.
2.4 "SPLIT BRIDGE(TM) LINK" shall mean two Mobility Split
Bridge(TM) Chips, associated connectors, and associated high speed cable which
permit the use and implementation of Mobility Technology.
III.
GRANT OF LICENSE BY MOBILITY
3.1 Subject to 2C making the royalty payments required pursuant to
this Agreement, and during the Term, Mobility grants to 2C, for Permitted
Applications only, a worldwide, nontransferable, and nonsublicensable right to
use, sell and otherwise incorporate Mobility Technology, including Mobility
Split Bridge(TM) Chips and current and future software drivers developed for
Mobility Split Bridge(TM) Chips and owned by Mobility.
3.2 The rights granted in Section 3.1 will survive any change in
control of Mobility.
3.3 2C shall not have the right to use Mobility Technology or
Split Bridge(TM) Chips for any purposes other than those specified in Section
3.1, with such prohibition specifically including universal docking stations
primarily designed for use with portable and handheld computers.
IV.
TITLE AND OWNERSHIP
4.1 2C acknowledges that Mobility owns and has all rights, title
and interest in and to all intellectual property relating to Mobility Technology
and Mobility Split Bridge(TM) Chips, including all patents, patents pending,
trade secrets, ASIC chips, software, utility models, trademarks, mask works,
copyrights, and all related applications therefor, including all future
improvements, modifications, and enhancements made to Mobility Technology and
Mobility Chips.
4.2 If either or both parties develop new technology, products
and/or chips that include a significant amount of both 2C Technology and
Mobility Technology for extended PCI
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bus systems and applications that are beyond the capabilities of Mobility
Technology, the parties agree as follows:
(a) Each party will have the right to use, sell, or otherwise market
the joint products or chips.
(b) Product or chip development cost will be funded fifty percent (50%)
by each party, or if only one party decides to fund such development, the party
that has agreed to fund development will receive 100% of royalties due the other
party until 125% of such development cost is recovered.
(c) If the joint chips are sold by either party, the other party will
receive a royalty of 15% on the sales revenues of all such chips. Such royalty
may be adjusted from time to time by the mutual written consent of Mobility and
2C; provided, however, if the joint chips are also developed jointly with Cybex,
Cycom or any of their respective affiliates (collectively, the "Cybex Entities")
then any such royalty payable by Mobility to 2C hereunder shall be divided among
2C and the Cybex Entities as they deem appropriate and as specified in writing
to Mobility by the involved entities (including 2C); it being acknowledged and
agreed that such 15% royalty shall be the maximum aggregate amount payable by
Mobility to 2C and the Cybex Entities for any such joint chip. Both parties will
have the right to purchase and sell such chips from the manufacturing foundry at
cost.
(d) If the joint products are sold by either party, the other party
will receive a royalty of 6% on the sales revenue of all such products;
provided, however, if the joint products are also developed jointly with any
Cybex Entity then any such royalty payable by Mobility to 2C hereunder shall be
divided among 2C and the Cybex Entities as they deem appropriate and as
specified in writing to Mobility by the involved entities (including 2C); it
being acknowledged and agreed that such 6% royalty shall be the maximum
aggregate amount payable by Mobility to 2C and the Cybex Entities for any such
joint product. Such royalty may be adjusted from time to time by the mutual
written consent of Mobility and 2C. Both parties will have the right to
manufacture and sell such products.
(e) Any technology contributed by a party will be owned 100% by such
contributing party, and may not be used by the non-contributing party for any
purpose other than the joint product and/or joint chip. Any new jointly
developed technology and any associated patents and patent rights will be
jointly owned by the parties, but also may not be used for any purpose other
than the joint product and/or joint chip as provided above without the other
party's consent.
4.3 Pursuant to the terms of this agreement, Mobility agrees to
make available to 2C, to the extent it has the right to do so, all future
enhancements, variations, modifications, and future generations of Mobility
Technology and Mobility Split Bridge(TM) Chips at a royalty rate defined below.
V.
ROYALTIES AND LINK PURCHASES
5.1 During the Term, the Cybex Entities (2C, Cybex, and Cycom)
shall pay to Mobility aggregate royalties as follows:
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(a) On all sales by 2C of any product incorporating any Mobility
Technology or Mobility Split Bridge(TM) Chips, 6% of 2C's sale price of such
product. This royalty will not apply to any products sold by 2C which are
purchased from Mobility for resale.
(b) 2C agrees to purchase required Split Bridge(TM) Links from Mobility
for all products which include Mobility Technology, where such Links form a part
of the product.
(c) Mobility shall price the Mobility Split Bridge(TM) Links for sale
to 2C at a rate no greater than the lowest rate offered to any third party
independent of Mobility that purchases the same products at comparable volumes.
Moreover, Mobility agrees to provide 2C an appropriate discount on the pricing
for the applicable Mobility Split Bridge(TM) Chips if the applicable Mobility
Split Bridge(TM) Chips incorporates a material amount of 2C Technology at terms
to be mutually agreed upon in writing.
(d) Royalties due under subparagraph (a) above shall be paid quarterly
within 30 days of the end of each quarter. Payments shall be made by wire
transfer to an account specified in writing at least 30 days prior to the date a
royalty payment is due. Within 30 days after the end of each quarter, 2C shall
furnish to Mobility a report providing the number and types of Mobility
Technology sold, the applicable royalty rate, and the total royalty paid.
(e) 2C agrees to make and maintain such books, records and accounts as
are reasonably necessary to verify the royalty payments due Mobility under this
Agreement. An independent certified public accountant, selected by Mobility, who
agrees to sign a nondisclosure agreement may, upon reasonable notice and during
normal business hours, but no more often than twice each year, audit and inspect
those records of 2C which are necessary to determine the accuracy of the royalty
payments made to Mobility. In the event that the independent audit reveals that
the royalties owed by 2C for any given quarter are more than 5% greater than the
royalties actually paid by 2C for that quarter, then in addition to remitting
all outstanding royalties shown to be due under the audit, all expenses incurred
by Mobility in conducting the audit shall be paid by 2C within 30 days of
receiving the auditor's report; otherwise, all expenses incurred by Mobility in
conducting the audit shall be borne by Mobility.
VI.
COVENANTS
6.1 Mobility hereby covenants not to license or sell directly, or
to its knowledge, indirectly, Mobility Technology, Split Bridge(TM) Links or any
technology jointly developed by Mobility and 2C during the Term of this
Agreement to those companies set forth on Exhibit A attached hereto, or any
successor or assign or subsidiary company of such listed company (unless
Mobility has contractual arrangements with any such successor or assign prior to
such assignment or succession, which Mobility will notify 2C of following any
event triggering this Section). Mobility further agrees that 2C may amend
Exhibit A from time to time by mutual consent and written notice to Mobility in
accordance with Section 11.9 below.
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VII.
TERM AND TERMINATION
7.1 The Term of this agreement is perpetual and can only be
terminated upon the written consent of both Mobility and 2C or as provided in
Section 7.2.
7.2 Either Party shall have the right to terminate this Agreement
upon a material default by the other Party of any of its obligations hereunder,
if such default has not been cured within sixty (60) days after receipt of
written notice from the other Party of the alleged default. For purposes of this
Agreement, a material default includes, but is not limited to, the failure of
the Cybex Entities (2C, Cybex, and Cycom) to pay any royalties when due and/or
the use of Mobility Technology or Mobility Split Bridge(TM) Chips except as
permitted in this Agreement.
VIII.
REPRESENTATIONS AND WARRANTIES
8.1 REPRESENTATIONS AND WARRANTIES OF MOBILITY. Mobility hereby
represents, warrants and covenants to 2C that as of the execution date of this
Agreement:
(a) Mobility is a corporation duly organized, validly existing and in
good standing under the laws of the State of Arizona, with full power to carry
on its business and activities as now being conducted;
(b) This Agreement has been duly authorized, executed and delivered by
Mobility. Mobility has the corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. No other act, approval or
proceeding on the part of Mobility is or will be required to authorize the
execution and delivery of this Agreement, or the consummation of the
transactions contemplated hereby; and
(c) The execution and delivery by Mobility of this Agreement will not,
and the fulfillment of and compliance by Mobility with the terms, conditions and
provisions hereof will not, (i) conflict with any of the terms, conditions or
provisions of the articles of incorporation or by-laws of Mobility, (ii) violate
any term, condition or provision of, or require any consent, authorization or
approval under, any judicial or arbitration judgment, order, award, writ,
injunction or decree applicable to Mobility, or (iii) conflict with, result in a
breach of, constitute a default under (whether with or without the giving of
notice or the lapse of time or both), or accelerate or permit the acceleration
of the performance required by, or require any consent, authorization or
approval under any document, instrument, agreement or license to which Mobility
or a person under its control is a party or is bound or to which any of the
assets or properties of Mobility or such person are subject.
8.2 REPRESENTATIONS AND WARRANTIES OF 2C.
(a) 2C is a corporation duly organized, validly existing and in good
standing under the laws of the State of Alabama, with full power to carry on its
business and activities as now being conducted;
(b) This Agreement has been duly authorized, executed and delivered by
2C. 2C has the corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. No other act, approval or proceeding on the
part of 2C is or will be required to authorize the execution and delivery of
this Agreement, or the consummation of the transactions contemplated hereby; and
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(c) The execution and delivery by 2C of this Agreement will not, and
the fulfillment of and compliance by 2C with the terms, conditions and
provisions hereof will not, (i) conflict with any of the terms, conditions or
provisions of the articles of incorporation or by-laws of 2C, (ii) violate any
term, condition or provision of, or require any consent, authorization or
approval under, any judicial or arbitration judgment, order, award, writ,
injunction or decree applicable to 2C, or (iii) conflict with, result in a
breach of, constitute a default under (whether with or without the giving of
notice or the lapse of time or both), or accelerate or permit the acceleration
of the performance required by, or require any consent, authorization or
approval under any document, instrument, agreement or license to which 2C or a
person under its control is a party or is bound or to which any of the assets or
properties of 2C or such person are subject.
8.3 INDEMNIFICATION.
(a) 2C shall indemnify, hold harmless and defend Mobility, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Mobility Indemnitee") from and against any and all
claims, suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts witness fees and court costs) incurred by any Mobility
Indemnitee arising out of, resulting from or otherwise concerning a breach by 2C
of any of 2C's representations and warranties contained in this Article 8.
(b) Mobility shall indemnify, hold harmless and defend 2C, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "2C Indemnitee") from and against any and all claims,
suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts' fees and court costs) incurred by any 2C Indemnitee
arising out of, resulting from or otherwise concerning a breach by Mobility of
any of Mobility's representations and warranties contained in this Article 8.
(c) Any Mobility Indemnitee or 2C Indemnitee, as the case may be,
seeking to be held harmless, defended and indemnified in accordance with the
provisions of Section (a) or (b) of this Section 8.3 shall promptly notify 2C or
Mobility, as appropriate (the "Indemnitor"), of any claim or suit brought
against such Mobility Indemnitee or 2C Indemnitee in respect of which such
Mobility Indemnitee or 2C Indemnitee intends to invoke the provisions of this
Section 8.3, although the failure to so notify the Indemnitor shall not release
such Indemnitor from its obligations under this Section 8.3 unless such
Indemnitor shall have been materially prejudiced by such failure. Such
Indemnitor shall indemnify, hold harmless and defend such Mobility Indemnitee or
2C Indemnitee, as the case may be, as above provided and keep such Mobility
Indemnitee or 2C Indemnitee fully informed on a current basis of the
Indemnitor's defense and/or settlement of such claim or suit. The Mobility
Indemnitee or 2C Indemnitee, as the case may be, shall reasonably cooperate in
the defense of such claim or suit and shall have the right, but no obligation,
to participate in the defense thereof with counsel of such Person's choice at
such Person's expense.
8.4 WAIVER OF CONSEQUENTIAL DAMAGES, ETC. Except as otherwise
contemplated in Article 8, neither party shall be liable for indirect, special,
consequential or punitive damages (including loss of income, profits or
goodwill) arising under or in relation to this Agreement whether based on an
action or claim in contract, equity, negligence, intended conduct, tort or
otherwise and each party hereby waives any claims with respect thereto. In
connection with the conduct of any litigation with third parties relating to any
liability of one party to the other or to such third parties, the one party
shall have all rights (including the right to accept or reject
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settlement offers and to participate in such litigation) which are appropriate
to its potential responsibilities or liabilities. Mobility and 2C expressly
acknowledge that the limitations and exclusions contained in this Section 8.4
have been the subject of active and complete negotiation between the parties and
represent the parties' agreement based upon the level of risk to 2C and Mobility
associated with their respective obligations under this Agreement and the
payments provided to Mobility hereunder.
IX.
PROPRIETARY INFORMATION
9.1 PROPRIETARY INFORMATION. During the period from the date of
disclosure until three (3) years after the termination of this Agreement,
Mobility and 2C, respectively, will treat and maintain the proprietary business,
technical, patent prosecution and other proprietary information, to include the
documentation and comments communicated between Mobility and 2C (collectively,
the "Proprietary Information") of the other party in confidence (using at least
the same degree of care as the recipient uses to protect its own Proprietary
Information of a like nature) and only use such Proprietary Information in
furtherance of this Agreement and the transactions and matters contemplated
herein.
9.2 PROPRIETARY INFORMATION. In order to be considered Proprietary
Information, proprietary information must be labeled or marked confidential or
proprietary by the disclosing party or reasonably be expected to be treated as
confidential or proprietary. The receiving party shall not remove any
proprietary or other legal notices from the Proprietary Information of the
disclosing party.
9.3 CONFIDENTIAL DISCLOSURE. Notwithstanding the foregoing,
Mobility or 2C may disclose Proprietary Information of the other party to its
employees, agents, consultants, contractors and permitted sublicensees, provided
that each such Person is bound by a like duty of confidentiality and restriction
on use. Notwithstanding the foregoing, such disclosing party shall remain
ultimately responsible for any non-permitted use of the Proprietary Information
by such party's employees, agents, consultants, contractors and permitted
sublicensees.
9.4 LIMITATIONS. Nothing contained herein will in any way restrict
or impair the right of Mobility or 2C to use, disclose or otherwise deal with
any Proprietary Information of the other party:
(i) that the recipient can demonstrate by written records
was previously known to it;
(ii) that the recipient can demonstrate by written records
was independently developed by it without access to
or use of the Proprietary Information of the
disclosing party;
(iii) that is now, or in the future becomes, publicly known
other than through acts or omissions of the
recipient;
(iv) that is lawfully obtained by the recipient without
confidentiality or use restrictions known to the
recipient from sources independent of the disclosing
party;
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(v) that is required to be disclosed to a governmental
entity or agency in connection with seeking any
governmental or regulatory approval, or pursuant to
the lawful requirement or request of a governmental
entity or agency; and/or
(vi) that the recipient is required to disclose pursuant
to lawful legal process or other applicable law.
X.
DISCLAIMER OF WARRANTIES
10.1 2C ACKNOWLEDGES THAT ITS USE OF THE MOBILITY TECHNOLOGY IS AT
THE SOLE RISK OF 2C. THE MOBILITY TECHNOLOGY MAY CONTAIN DEFECTS, FAIL TO COMPLY
WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS RESULTS WHEN
OPERATED ALONE OR IN COMBINATION WITH OTHER TECHNOLOGY OR ANY OTHER HARDWARE,
SOFTWARE, EQUIPMENT, OR PRODUCTS. 2C ACCEPTS THE MOBILITY TECHNOLOGY "AS IS."
NEITHER MOBILITY NOR 2C MAKE ANY WARRANTIES WITH RESPECT TO THE SUBJECT MATTER
OF THIS AGREEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN AND EACH PARTY
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGMENT OR OF FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MOBILITY SPECIFICALLY DOES
NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS: (i) THAT THE MOBILITY
TECHNOLOGY WILL MEET 2C'S REQUIREMENTS; (ii) THAT ANY PRODUCT INCORPORATING THE
MOBILITY TECHNOLOGY WILL BE ERROR FREE OR OPERATE IN AN UNINTERRUPTED MANNER;
(iii) REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE MOBILITY TECHNOLOGY
IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE MOBILITY TECHNOLOGY IS
ASSUMED BY 2C. THE WARRANTIES SET FORTH IN SECTIONS 8.1 AND 8.2 ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES. NO VERBAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY MOBILITY OR ITS AGENTS, REPRESENTATIVES OR
EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS
WARRANTY, AND 2C SHALL NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING
DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. 2C
AGREES TO RELEASE MOBILITY FROM ANY LIABILITY ANY CUSTOMER OF 2C SUFFERS OR
INCURS DUE TO THE USE OF ANY PRODUCT INCORPORATING THE MOBILITY TECHNOLOGY. 2C
shall include with the sales documentation for any product which incorporates
Mobility Technology or Mobility Chips a disclaimer of any express or implied
warranties of merchantability or of fitness for a particular purpose.
10.2 Nothing in this Agreement shall be construed as a warranty or
representation by any of the Parties to this Agreement (i) as to the validity,
enforceability or scope of any patent, design patent or utility mode; (ii) that
any manufacture, sale, lease, import, use or other
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disposition of any products hereunder will be free from infringement of any
intellectual property right of third parties.
10.3 Nothing in this Agreement shall be construed as an agreement
or authorization for 2C to bring or prosecute actions or suits on behalf of
Mobility against third parties for patent infringement or conferring any right
to bring or prosecute actions or suits on behalf of Mobility against third
parties for patent infringement.
10.4 With the sole exception of its obligations to indemnify set
forth in Paragraph 8.3, Mobility's entire liability to 2C for any cause
whatsoever, and regardless of the form of action, whether in contract or in
tort, shall be limited to the royalties actually paid by 2C to Mobility pursuant
to this Agreement.
XI.
GENERAL PROVISIONS
11.1 MARKINGS. 2C agrees to identify Mobility's "Split Bridge(TM)"
logo on all 2C products and packaging incorporating Mobility Technology or
Mobility Chips in a manner approved by Mobility, which approval will not be
unreasonably withheld.
11.2 SUPPORT. Mobility agrees to provide reasonable support to 2C
to educate 2C in the use of Mobility Technology and Mobility Split Bridge(TM)
Chips at no charge. Additionally, Mobility will provide 2C with development and
architecture systems support to meet 2C's new product development objectives and
requirements for a charge. Such charge will be quoted in advance on a case by
case basis.
11.3 ASSIGNMENT; BINDING EFFECT, ETC. This Agreement shall be
binding upon and inure to the benefit of Mobility and 2C and their respective
permitted successors and permitted assigns. Subject to the following, the rights
and licenses of 2C under this Agreement are personal to 2C. Notwithstanding the
foregoing, 2C may assign its rights and licenses under this Agreement to any
Affiliate (as hereinafter defined) or any Affiliate or successor to all or
substantially all of its business or assets without the prior written consent of
Mobility, provided such successor assumes in writing the obligations of 2C under
this Agreement. 2C Indemnitees and Mobility Indemnitees are intended third party
beneficiaries of this Agreement to the extent expressly provided herein. Any
permitted assignment of this Agreement by either party shall not relieve or
release such party from any of its duties or obligations under this Agreement.
Mobility shall not assign or transfer the Mobility Technology or grant any
security interest, lien, right, license or other encumbrance upon or respecting
the Mobility Technology unless such assignment, transfer or grant is made
expressly subject to the licenses and other terms and conditions of this
Agreement. Each and every permitted successor and permitted assign to the
interests of either party to this Agreement shall hold such interests subject to
the terms, conditions and provisions of this Agreement. For the purpose of this
Agreement, the term "Affiliate" shall mean any and all corporations,
partnerships, limited liability entities, and other entities that are in or
under direct or indirect control of 2C or of another Affiliate of 2C and any and
all corporations, partnerships, limited liability entities, and other entities
that are under common control with 2C or any successor to all or substantially
all of the business of 2C or such Affiliate, and "control" shall exist whenever
there is an ownership, profits, voting, or other similar interest (including any
right or option to obtain such an interest) representing at least
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thirty percent (30%) of the total interests of 2C then outstanding (treating as
outstanding any interests obtainable by 2C or the relevant Affiliate pursuant to
the exercise of the aforementioned rights or options).
11.4 INTERPRETATION. The parties acknowledge and agree that this
Agreement was prepared and drafted by the parties equally, and that neither
party shall be considered to have drafted this Agreement, nor shall this
Agreement, or any term hereof, be construed against a party on the grounds that
the party was the drafter.
11.5 ARBITRATION. Except as otherwise provided for in this
Agreement, all disputes, claims and controversies between the parties to this
Agreement shall be submitted to arbitration before a panel of three arbitrators.
The arbitration shall be conducted according to the commercial arbitration rules
and the rules governing large, complex cases of the American Arbitration
Association. A party shall commence arbitration under this paragraph by
submitting a concise statement of its claim and a demand for arbitration to the
other party and to the American Arbitration Association. The decision and award
of the arbitrators shall be final and binding, and the award so rendered may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in Delaware. The arbitrators shall render their decision within thirty (30) days
after the parties complete their submission of evidence and final argument.
11.6 RELIEF. Nothing in this Agreement shall preclude a party from
seeking equitable or injunctive relief from a court on an emergency, temporary
or expedited basis prior to the pendency of an arbitration proceeding; provided
that the arbitration panel, once appointed, shall have the power and authority
to modify or rescind such relief. Venue for any action brought under this
paragraph shall be in Delaware.
11.7 GOVERNING LAW. This Agreement, the entire relationship of the
parties hereto, as well as any claim by a party against another party, whether
grounded in tort, contract, law or equity, shall be construed and enforced in
accordance with the laws of the State of Delaware, without regard to its choice
of law principles.
11.8 COUNTERPARTS. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
and by different parties in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same agreement. Each such agreement
shall become effective upon the execution of a counterpart hereof or thereof by
each of the parties hereto.
11.9 NOTICES. All notices required or permitted under this
Agreement shall be deemed to have been given and received five (5) days after
being deposited in the U.S. Mail, certified mail, return receipt requested,
postage prepaid, to the following addresses:
To Mobility: Mobility Electronics, Inc.
Xxxxxxx Xxxxx
Chief Executive Officer
0000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
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To 2C: 2C Computing, Inc.
Xxxxxxxx X. Xxxxxx
President/CEO
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
11.10 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and supersedes all prior or contemporaneous proposals,
oral or written, understandings, representations, conditions and all other
communications between the parties relating to such subject matter. Each party
represents and warrants to the other party that in entering into this Agreement
it has not relied on any representations, promises or assurances from the other
party or any employee, officer, director, representative, or attorney of the
other party not expressly contained in this Agreement. Any other terms or
conditions shall not be incorporated herein or be binding upon either party
unless expressly agreed to in writing by both parties.
11.11 SEVERABILITY. If any provision of this Agreement is declared
or found to be illegal, unenforceable or void, then both parties shall be
relieved of all obligations arising under such provision, but only to the extent
that such provision is illegal, unenforceable or void. Further, this Agreement
shall be deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable while preserving its intent or, if that is not
possible, by substituting therefor another provision that is legal and
enforceable and achieves the same intended objective. If the remainder of this
Agreement shall not be affected by such illegal, unenforceable or void provision
and is capable of substantial performance, then each provision not so affected
shall be enforced to the extent permitted by law.
11.12 INTERPRETATION. In any interpretation of this Agreement, it
shall be deemed that this Agreement was prepared jointly by the parties, and no
ambiguity shall be construed or resolved against either party on the premise or
presumption that such party was responsible for drafting this Agreement.
11.13 WAIVER. No delay or omission by either party to exercise any
right or power hereunder shall impair any right or power or be construed to be a
waiver thereof. A waiver by either of the parties of any of the covenants,
conditions or agreements to be performed by the other party or any breach
thereof shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenant, condition or agreement contained herein. All remedies
provided for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to either party at law, in equity or
otherwise, and may be enforced concurrently therewith or from time to time.
11.14 HEADINGS. Captions, headings and titles in this Agreement are
for reference purposes only and are neither part of this Agreement nor to be
used for purposes of interpreting the Parties' intent.
11.15 FURTHER ACTS. Each party shall do, or cause to be done, all
such further acts, and shall execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, any and all such further documentation as
the other party reasonably requires to carry out the purposes of this Agreement.
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11.16 MEDIA RELEASES. All media releases, public announcements and
public disclosures by Mobility or 2C, or their respective representatives,
employees or agents, relating to this Agreement or its subject matter or using
the name of the other party shall be coordinated with and approved in writing by
the other party prior to the release thereof. Both Mobility and 2C may publicly
disclose the existence of this Agreement and its broad purpose, but not any of
the specific terms thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
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Its: President/CEO
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2C COMPUTING, INC.
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------
Its: President/CEO
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