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EXHIBIT 10.50
LICENSE AGREEMENT
This License Agreement (hereinafter "Agreement") is entered into by and
between Mobility Electronics, Inc. ("Mobility"), an Delaware corporation with
its principal place of business at 0000 X. Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000,
and Cybex Computer Products Corporation ("Cybex"), an Alabama corporation with
its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000 effective the 6th day of March, 2000.
I.
RECITALS
1.1 Mobility owns the Mobility Technology (as herein defined), has
pending patent applications (Nos. 09-130,057 and 09-130,058) (the "Pending
Patents") pertaining to the Mobility Technology, and has the right to grant
non-exclusive licenses thereunder.
1.2 Cybex desires to obtain from Mobility, and Mobility hereby desires
to grant to Cybex, 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 "CYBEX TECHNOLOGY" shall mean all of Cybex's split computer
technology 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, and 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. Cybex Technology
does not include any incorporated Mobility Technology.
2.2 "MOBILITY TECHNOLOGY" shall mean all of Mobility's Split Bridge
Technology (as hereinafter defined), including Mobility's current split bridge
ASIC chip commonly known as "Merlin" and ASIC split bridge chips currently under
development by Mobility with LSI Logic or developed in the future "Mobility
Split Bridge Chips". This further includes all related intellectual property and
Mobility Split Bridge Chip intellectual property including without limitation
software, patents and patents pending (including, without limitations, the
Pending Patents), 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 Chips and technology and
future generations of any of the above. "Split Bridge Technology" is the
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technology which allows a main computer PCI bus to be extended to a remote
location by connecting two proprietary Mobility Split Bridge Chips with a high
speed cable, and includes all of the above. Mobility Technology does not include
any incorporated Cybex Technology.
2.3 "PERMITTED APPLICATIONS" shall mean any product or device
containing Mobility Technology for an application in a desk top computer, KVM
Switch, or server computer system.
2.4 "SPLIT BRIDGE LINK" shall mean two Mobility Split Bridge 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 Cybex making the royalty payments required pursuant to
this Agreement, and during the Term, Mobility grants to Cybex, for Permitted
Applications only, a worldwide, nontransferable, and nonsublicensable right to
use, sell and otherwise incorporate Mobility Technology including Mobility Split
Bridge Chips; provided, however, that Cybex shall have the right to sublicense
the Mobility Technology to Cycom, LLC, an Alabama limited liability company and
an Affiliate (as defined below) of Cybex, for use in Permitted Applications and
otherwise under the terms of this Agreement (including compliance with Section
11.3 below).
3.2 The rights granted in Section 3.1 will survive any change in
control of Mobility.
3.3 Cybex shall not have the right to use Mobility Technology or Split
Bridge 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 Cybex 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 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 Cybex Technology and Mobility
Technology for extended PCI 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, except that Mobility will have exclusive rights in
the portable and handheld computer docking market and Cybex will have the
exclusive rights in the KVM switch market.
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(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
Cybex. 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. Such
royalty may be adjusted from time to time by the mutual written consent of
Mobility and Cybex. 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 Cybex, 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 Chips at a royalty rate defined below.
V.
ROYALTIES AND LINK PURCHASES
During the Term, Cybex shall pay to Mobility royalties as follows:
5.1 On all sales by Cybex of any product incorporating any Mobility
Technology or Mobility Split Bridge Chips, 6% of Cybex's sale price of such
product. This royalty will not apply to any products sold by Cybex incorporating
products purchased from Mobility pursuant to the Private Label Agreement, of
even date herewith, between Mobility and Cybex, as may be amended from time to
time.
5.2 Cybex agrees to purchase required Split Bridge Links from Mobility
for all products which include Mobility Technology.
5.3 Mobility shall price the Mobility Split Bridge Links for sale to
Cybex at a rate no greater than the lowest rate offered to any third party
independent of Mobility Electronics that purchases the same products at
comparable volumes. Moreover, Mobility agrees to provide Cybex an appropriate
discount on the pricing for the applicable Mobility Split Bridge Chips if the
applicable Mobility Split Bridge Chips incorporates a material amount of Cybex
Technology at terms to be mutually agreed upon in writing.
5.4 Royalties due under Paragraph 5.1 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
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at least 30 days prior to the date a royalty payment is due. Within 30 days
after the end of each quarter, Cybex shall furnish to Mobility a report
providing the number and types of Mobility Technology sold, the applicable
royalty rate, and the total royalty paid.
5.5 Cybex 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 Cybex 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 Cybex for any given quarter
are more than 5% greater than the royalties actually paid by Cybex 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 Cybex 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 Links or any
technology jointly developed by Mobility and Cybex 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 Cybex of following any
event triggering this Section). Mobility further agrees that Cybex may amend
Exhibit A from time to time only to delete companies listed therein, by written
notice to Mobility in accordance with Section 11.9 below.
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 Cybex 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
Cybex to pay any royalties when due and/ or the use of Mobility Technology or
Mobility Split Bridge 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 Cybex that as of the execution date of
this Agreement:
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(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 CYBEX.
(a) Cybex 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
Cybex. Cybex 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 Cybex 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 Cybex of this Agreement will not, and
the fulfillment of and compliance by Cybex 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 Cybex, (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 Cybex, 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 Cybex or
a person under its control is a party or is bound or to which any of the assets
or properties of Cybex or such person are subject.
8.3 INDEMNIFICATION.
(a) Cybex shall indemnify, hold harmless and defend Mobility, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Mobility
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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 Cybex of any of Cybex's representations and
warranties contained in this Article 8.
(b) Mobility shall indemnify, hold harmless and defend Cybex, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Cybex 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 Cybex 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 Cybex 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 Cybex
or Mobility, as appropriate (the "Indemnitor"), of any claim or suit brought
against such Mobility Indemnitee or Cybex Indemnitee in respect of which such
Mobility Indemnitee or Cybex 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
Cybex Indemnitee, as the case may be, as above provided and keep such Mobility
Indemnitee or Cybex Indemnitee fully informed on a current basis of the
Indemnitor's defense and/or settlement of such claim or suit. The Mobility
Indemnitee or Cybex 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 settlement offers
and to participate in such litigation) which are appropriate to its potential
responsibilities or liabilities. Mobility and Cybex 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 Cybex 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 Cybex, 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
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Cybex (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
Cybex 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 Cybex 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;
(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 CYBEX ACKNOWLEDGES THAT ITS USE OF THE MOBILITY TECHNOLOGY IS AT
THE SOLE RISK OF CYBEX. THE MOBILITY TECHNOLOGY
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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. CYBEX
ACCEPTS THE MOBILITY TECHNOLOGY "AS IS." NEITHER MOBILITY NOR CYBEX 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 CYBEX'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 CYBEX. 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 CYBEX SHALL NOT
RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMERS OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. CYBEX AGREES TO RELEASE
MOBILITY FROM ANY LIABILITY ANY CUSTOMER OF CYBEX SUFFERS OR INCURS DUE TO THE
USE OF ANY PRODUCT INCORPORATING THE MOBILITY TECHNOLOGY. Cybex 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 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 Cybex 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 Cybex 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 Cybex to Mobility pursuant to this
Agreement.
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XI.
GENERAL PROVISIONS
11.1 MARKINGS. Cybex agrees to identify Mobility's "Split Bridge" logo
on all Cybex 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 Cybex to
educate Cybex in the use of Mobility Technology and Mobility Split Bridge Chips
at no charge. Additionally, Mobility will provide Cybex with development and
architecture systems support to meet Cybex'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 Cybex and their respective
permitted successors and permitted assigns. Subject to the following, the rights
and licenses of Cybex under this Agreement are personal to Cybex.
Notwithstanding the foregoing, Cybex 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 Cybex under this Agreement. Cybex 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 Cybex or of another
Affiliate of Cybex and any and all corporations, partnerships, limited liability
entities, and other entities that are under common control with Cybex or any
successor to all or substantially all of the business of Cybex 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 thirty percent (30%) of the total interests
of Cybex then outstanding (treating as outstanding any interests obtainable by
Cybex 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
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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 Dallas, Texas. 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 Dallas, Texas.
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
To Cybex: Cybex Computer Products Corporation
Xxxxx Xxxxx
Executive Vice President
0000 Xxxxxxxxx Xxxxx
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.
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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.
11.16 MEDIA RELEASES. All media releases, public announcements and
public disclosures by Mobility or Cybex, 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 Cybex may
publicly disclose the existence of this Agreement and its broad purpose, but not
any of the specific terms thereof.
11
12
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
---------------------------------
Its: President and Chief Executive
Officer
--------------------------------
CYBEX COMPUTER PRODUCTS
CORPORATION
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Its: Executive Vice President
--------------------------------
12
13
EXHIBIT A
1. Apex Inc., having a place of business located at 0000 Xxxxxxx Xx.,
X.X., Xxxxxxx, XX 00000
2. Raritan Computer Inc., having a place of business located at 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
3. CCC Group, specifically including those entities identified as (i)
C-C-C group PLC located at Unit 13, Farnborough Business Centre,
Xxxxxxx Xxxx, XXXXXXXXXXX, Xxxxx, XX00 0XX; (ii) C-C-C group located at
______, Long Island, New York ______; and (iii) CCC Group (Europe)
Limited, Prince Rupert House, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX.
4. Rose Electronics, having a place of business located at 00000 Xxxxxxxxx
Xxxx, Xxxxxxx, XX 00000.
5. Belkin Components, specifically including those entities identified as
(i) Belkin Components located at 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 and
(ii) Belkin Components LTD., Xxxxxx Road, Mount Farm Bletchley, Xxxxxx
Xxxxxx, XX0 0XX, Xxxxxx Xxxxxxx.
A-1
