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EXHIBIT 10.2
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into and effective this 1st day of
August, 2002 (the "EFFECTIVE DATE") by and between Tandberg Telecom AS, a
corporation organized and existing under the laws of the Kingdom of Norway
("LICENSEE") and Ezenia! Inc. f/k/a Videoserver, Inc., a corporation organized
and existing under the laws of the State of Delaware, U.S.A ("LICENSOR").
W I T N E S S E T H:
WHEREAS, Licensor owns the patents and patent applications listed on
EXHIBIT 1 attached hereto; and
WHEREAS, Licensor desires to grant to Licensee the right to practice
under the patents and patent applications and Licensee is willing to accept such
license on the terms set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises
set forth herein and intending to be legally bound the Parties hereby agree as
follows:
1. DEFINITIONS. The following terms shall have the meaning ascribed to
them herein, unless the context otherwise requires:
1.1 "AFFILIATE" shall mean any entity that is now or hereafter
becomes Controlled by, is in Control of, or is under common Control with a
Party. "CONTROL" shall mean a fifty percent (50%) or more ownership of issued
and outstanding voting securities, or fifty percent (50%) or more of the voting
rights in a partnership, directly or indirectly.
1.2 "EFFECTIVE DATE" shall mean the date first set forth above.
1.3 "LICENSED PRODUCT" shall mean any product of Licensee, the
manufacture, use or sale of which is covered by any claim of the Patents.
1.4 "PARTY" or "PARTIES" shall mean a party or the parties to
this Agreement.
1.5 "PATENTS" shall mean the issued patents and patent
applications set forth in EXHIBIT 1 attached hereto, and any foreign
counterparts, reissues, extensions, substitutions, confirmations, registrations,
revalidations, additions, or continuations, continuations-in-part, and divisions
thereof.
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2. LICENSE
2.1 LICENSE GRANT. Subject to the terms and conditions set forth
in this Agreement, Licensor hereby grants to Licensee (and its Affiliates that
agree in writing to be bound by the terms of this Agreement) a non-transferrable
(except in accordance with Section 7.3), world-wide, non-exclusive license to
practice and use the rights in information or discoveries covered by the Patents
to, directly or indirectly, manufacture, have manufactured, import, export,
service, support, market, distribute, use and sell Licensed Products. Licensee
shall be responsible for and liable to Licensor for any breach of this Agreement
by any of its Affiliates.
2.2 SUBLICENSES. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Licensee the right to grant sublicenses in
and to the Patents to its Affiliates, resellers, distributors, and contract
manufacturers for the sole purpose of enabling, and only to the extent necessary
to enable, Licensee to manufacture, have manufactured, import, export, service,
support, market, distribute, use and sell Licensed Products as permitted under
Section 2.1, and to enable end users to use Licensed Products. All sublicenses
permitted hereunder must be in writing and at least as protective of the Patents
as this Agreement. All sublicenses must expressly name Licensor as an intended
third party beneficiary with the right to enforce such sublicense directly
against such sublicensee.
2.3 TITLE TO PATENTS. Licensee understands and agrees that the
license granted to Licensee under this Agreement does not confer on Licensee
title to, or ownership of, the Patents or any part thereof. All proprietary
rights in the Patents, whether created by statute or arising at common law or in
equity, will remain at all times in the Licensor. Subject to the foregoing, both
Parties acknowledge and agree that any modification, extension, improvement or
change of any kind of or to any invention covered by a claim under any of the
Patents created by either Party as a result of having had access to the Patents
shall be owned by the Party who created it.
2.4 PATENT MARKING. Licensee must permanently and legibly mark
all Licensed Products manufactured, imported, distributed, or sold by it under
this Agreement with a patent notice as may be permitted or required under the
law of each jurisdiction in which Licensed Products are manufactured,
distributed, imported, or sold.
3. LICENSE FEE. In consideration of the license grant set forth
herein, Licensee shall pay to Licensor upon execution of this Agreement by wire
transfer in immediately available funds a one-time license fee of One Million
Two Hundred and Fifty Thousand U.S. Dollars ($1,250,000) (the "License Fee").
Upon payment of the License Fee the license granted herein shall be fully paid
up and non-assessable.
4. REPRESENTATIONS AND WARRANTIES
4.1 LICENSOR REPRESENTATIONS. As of the Effective Date, Licensor
represents and warrants to Licensee the following:
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(a) Licensor is a corporation organized and existing under
the laws of the State of Delaware, U.S.A. and has the authority to enter into
this Agreement.
(b) Except as otherwise set forth and disclosed under the
Asset Purchase Agreement executed by the Parties concurrently herewith (the
"ASSET PURCHASE AGREEMENT"), Licensor holds the complete right, title and
interest in and to the Patents free and clear of any liens, claims or
encumbrances and is not in breach of any agreement with third parties related to
the Patents.
(c) Execution of this Agreement by Licensor will constitute
the valid and binding agreement of Licensor and transfer to Licensee the rights
set forth herein. No charge, complaint, action, investigation or claim is
pending or, to the knowledge of Licensor, threatened that (i) claims that
Licensor is in violation of or has infringed any patent, know-how or the
intellectual property right of any third party related to the Patents or (ii)
challenges the legality, validity, enforceability, use or ownership of the
Patents.
(d) Except as otherwise set forth and disclosed under the
Asset Purchase Agreement, Licensor has not given any notice of infringement or
sent a demand to "cease and desist" to any third party based on any claim in the
Patents. Such failure to send such notice or demand is not intended to, and does
not, constitute a warranty, representation, or inference that no third parties
have interfered with, infringed, misappropriated or otherwise acted in conflict
with the Patents.
(e) Except as otherwise set forth and disclosed in the Asset
Purchase Agreement, Licensor has provided no notice to third parties alleging
interference, infringement, misappropriation or other conflict with or of the
Patents. Such failure to send such notice or demand is not intended to, and does
not, constitute a warranty, representation, or inference that no third parties
have interfered with, infringed, misappropriated or otherwise acted in conflict
with the Patents.
(f) Licensor owns or controls no patents or applications for
patents related to the manufacture or use of videoconferencing interface
components and telecommunications bridging equipment to facilitate multipoint
audio and video conferencing, other than those Patents listed on Exhibit 1.
(g) All disclaimers, exceptions, and limitations set forth
in Section 4.12 of the Asset Purchase Agreement are hereby incorporated herein
and made a part hereof.
4.2 LICENSEE REPRESENTATIONS. As of the Effective Date, Licensee
represents and warrants to Licensor the following:
(a) Licensor is a corporation organized and existing under
the laws of the Kingdom of Norway and has the authority to enter into this
Agreement.
(b) Execution of this Agreement by Licensee will constitute
the valid and binding agreement of Licensee.
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4.3 MUTUAL REPRESENTATIONS. Each Party agrees to comply with all
applicable regulatory, statutory and treaty requirements in any country in which
such Party conducts business, and not to place the other Party in jeopardy of
not complying with any such requirements.
5. PATENT FEES AND MAINTENANCE
5.1 MAINTENANCE OF LICENSED PATENTS. If Licensee determines that
any fee required to maintain any Patent in effect or to issue any patent
application has not been paid by Licensor, then Licensee may, in its sole
discretion, pay such fee on behalf of the Licensor. Further, if Licensee
determines that any filings, responses, appeals, or other actions should be
taken to obtain or retain rights to patents in any country for inventions
disclosed in any Patent, then Licensee may, in its sole discretion, take such
action on behalf of and in the name of the Licensor.
5.2 INFRINGEMENT. It is anticipated that each of Licensor and
Licensee shall promptly notify the other of any infringement or threatened
infringement by a third party of the Patents that may come to its attention, but
neither Party shall be required to so notify the other. Licensee may, but is not
required to, obtain discontinuance of the alleged infringement or bring suit
against such third party in the name of Licensor with prior notice to Licensor.
It is understood and agreed that the Party to this Agreement that institutes
suit or action shall bear solely all costs and expenses associated therewith,
subject to reimbursement as set forth below. Any and all sums received,
obtained, collected or recovered whether by judgment, settlement or otherwise,
as a result of such suit or action, shall be distributed first to pay the
reasonable costs and expenses incurred in connection with such suit or action
with the remainder being distributed to Licensor.
6. TERM. This Agreement and the right and license granted to Licensee
hereunder shall commence on the date first set forth above (the "Effective
Date") and shall continue thereafter until such Agreement, right and license
shall expire on a country-by-country basis upon expiration of the Patents
licensed hereunder or if sooner, shall terminate upon the failure of Licensee to
close on the Asset Purchase Agreement due to a breach by Licensee of any
material representation, warranty, covenant or agreement under said Asset
Purchase Agreement; provided, however, that in such case, in order for such
termination to be effective, Licensor must, on or before December 31, 2002,
reimburse to Licensee the $1.25 million license fee set forth herein.
7. MISCELLANEOUS
7.1 NOTICE. Any and all notices, demands, and communications
provided for herein or made hereunder shall be given in writing and shall be
deemed given to a Party at the earlier of (i) when hand delivered to such Party,
(ii) when facsimile transmitted to such Party to the facsimile number indicated
for such Party below (or to such other facsimile number for a Party as such
Party may have substituted by notice pursuant to this Section 7.1), or (iii)
when received if sent by express courier, confirmed by receipt, and addressed to
such Party at the address designated below for such Party (or to such other
address for such Party as such Party may have substituted by notice pursuant to
this Section 7.1):
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If to Licensee: Tandberg Telecom AS
Philip Pedersen's Vei 22
N-1324, Lysaker
NORWAY
Attention: President
With a copy to: Peri & Stewart, L.L.C.
108 Baker Street
Maplewood, NJ 07040
Fax: 973-762-5801
Attention: Steven B. Peri, Esq.
If to Licensor: Ezenia!, Inc.
154 Middlesex Turnpike
Burlington, MA 01803
Fax: 781-505-2559
Attention: President
With a copy to: Bingham McCutchen LLP
150 Federal Street
Boston, MA 02110
Fax: 617-951-8736
Attention: David L. Engel, Esq. and
Barry N. Hurwitz, Esq.
7.2 INDEPENDENT PARTIES. This Agreement is intended solely as an
arm's length commercial agreement, and no partnership, franchise, joint venture,
agency, or other form of agreement or relationship is intended.
7.3 ASSIGNMENT. This Agreement may not be assigned by either
Party at any time without the prior written consent of the other Party, other
than (i) to a directly or indirectly wholly-owned affiliate or (ii) in
connection with the sale of all or substantially all of the assets of such Party
associated with this Agreement. In the event of any such assignment, the
assignee shall be subject to and shall agree in writing to be bound by the terms
and conditions of this Agreement.
7.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws and decisions of the State of
Delaware without regard to its rules as to conflicts of laws; provided, however,
that the Patents subject to this Agreement shall be interpreted in accordance
with the laws of the country in which the Patent was granted. The Parties hereby
consent and submit to the exclusive jurisdiction of the respective federal and
state courts in and of the State of Delaware, and the Parties irrevocably waive
whatever rights they may have to challenge or dispute jurisdiction or venue
therein. The Parties further agree that if they do not have an office or
registered agent in Delaware to accept service of process, they may
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be served by U.S. Mail, postage prepaid, registered or certified, return receipt
requested. If so delivered, the Parties irrevocably waive whatever right they
may have to challenge the sufficiency of process of service.
7.5 INTEPRETATION. Each of the Parties have been represented by
counsel and has had the opportunity to negotiate, review, revise and comment on
the terms set forth herein. As a result, the Parties acknowledge and agree that
in interpreting the provisions of this contract no weight shall be given to
which Party drafted or revised any provision of this Agreement, each provision
considered to have been the joint work product of both Parties.
7.6 SEVERABILITY. In the event any one or more of the provisions
of this Agreement should for any reasons be held by any court or authority
having jurisdiction over this Agreement or any of the Parties hereto, to be
invalid, illegal, or unenforceable, such provisions shall be reformed to
approximate the intent of the Parties as near as possible and, if unreformable,
shall be divisible and deleted in such jurisdiction. All other provisions of
this Agreement shall not be affected.
7.7 CAPTIONS. The captions of this Agreement are for convenience
only, and shall not be deemed of any force or effect whatsoever in construing
this Agreement.
7.8 WAIVER. The failure on the part of a Party to exercise or
enforce any right conferred upon it hereunder shall not be deemed to be a waiver
of any such right, nor operate to bar the exercise or enforcement thereof at any
time thereafter.
7.9 SURVIVAL. The terms of this Agreement which by their intent
or meaning have validity beyond the term of this Agreement shall survive the
termination or expiration of this Agreement.
7.10 COUNTERPARTS. This Agreement may be executed by the Parties
hereto in counterparts, each of which, when so executed and delivered, shall be
considered to be an original, but all such counterparts shall together
constitute but one and the same instrument.
7.11 INTEGRATION/MODIFICATION. This Agreement is the complete
agreement of the Parties and supersedes all previous understandings and
agreements relating to the subject matter hereof. Neither this Agreement nor any
of the terms hereof may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the Party against whom
enforcement of the termination, amendment, supplement, waiver or modifications
is sought.
7.12 NO THIRD PARTY BENEFICIARIES. Nothing herein expressed or
implied is intended or will be construed to confer upon or to give any person,
firm or corporation, other than the Parties hereto, any rights or remedies under
or by reason of this Agreement.
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IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have executed this Agreement as of the dates indicated below.
EZENIA! INC. TANDBERG TELECOM AS
By: /s/ Khoa Nguyen By: /s/ Bengt Thuresson
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Title: President Title: Chairman
Date: August 1, 2002 Date: August 1, 2002
By: /s/ Robert Bernsten
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Title: Member of the Board
Date: August 1, 2002