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Exhibit 10.22
AGREEMENT
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THIS AGREEMENT (this "Agreement") is entered into as of November
8, 1999 by and among Telxon Corporation, a Delaware corporation ("Telxon"),
Cisco Systems, Inc., a California corporation ("Cisco"), and Aironet Wireless
Communications, Inc., a Delaware corporation ("Aironet"). Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the Merger Agreement (as defined below).
RECITALS:
WHEREAS, Cisco and Aironet have entered into that certain
Agreement and Plan of Merger and Reorganization dated of even date herewith
(the "Merger Agreement"), pursuant to which, among other things, Cisco would
acquire Aironet pursuant to a merger of a subsidiary of Cisco with and into
Aironet (the "Merger") and Aironet stockholders would receive shares of Cisco
Common Stock;
WHEREAS, Telxon beneficially owns approximately 35% of Aironet's
outstanding stock and as a result stands to benefit substantially from the
Merger;
WHEREAS, Telxon and Aironet are parties to a number of agreements
and have certain relationships which Cisco desires to terminate or clarify in
connection with entering into the Merger Agreement; and
WHEREAS, in order to induce Cisco to enter into the Merger
Agreement, Telxon and Aironet have agreed to enter into this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises, the
covenants and representations set forth herein, and certain other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1. TERMINATION OF TELXON/AIRONET AGREEMENTS; EXECUTION OF
PURCHASE AND LICENSE AGREEMENTS.
1.1 Effective as of, and conditioned upon the occurrence of, the
Effective Time, Telxon, Aironet and Cisco agree that with no further action on
the part of any party hereto or thereto, that certain License, Rights and
Supply Agreement and that certain Services Agreement, each dated March 31,
1998, by and between Telxon and Aironet (the "Terminated Agreements"), and all
licenses granted thereunder, shall terminate effective as of the Effective
Time, and that none of Telxon, Cisco or the Surviving Corporation shall have
any further liability or obligations with respect thereto.
1.2 Unless specifically contemplated by the Merger Agreement or
with the express prior written consent of Cisco, from the date hereof until the
earlier of the Effective Time or the date
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on which the Merger Agreement is terminated Aironet and Telxon will not amend,
modify or otherwise alter, or otherwise cause or permit to be amended, modified
or otherwise altered, the Terminated Agreements.
1.3 Effective as of, and conditioned upon the occurrence of, the
Effective Time, Cisco and Telxon will enter into a Purchase Agreement in
substantially the form attached as EXHIBIT A hereto and a License Agreement in
substantially the form attached as EXHIBIT B hereto (together, the "New
Agreements"). The New Agreements shall become effective as of, and are
expressly conditioned upon, the occurrence of the Effective Time with no
further action on the part of Cisco or Telxon; provided that in the event that
the Merger Agreement is terminated or the Merger is not consummated, the New
Agreements shall terminate and be deemed void ab initio.
SECTION 2. CONSENTS TO ASSIGNMENT. Effective as of the Effective Time,
Telxon hereby consents to the assignment to Cisco and the Surviving
Corporation, and any other direct or indirect Cisco subsidiary of each of the
agreements set forth on SCHEDULE 1 hereto. Such consent shall be effective at
the Effective Time whether or not the corporate existence of Aironet ceases,
including, but not limited to, as a result of the merger of Aironet with and
into Cisco (or any subsidiary of Cisco) following the Merger. Without limiting
the generality of the foregoing, Telxon hereby expressly acknowledges that
Cisco is not a "direct competitor" of Telxon for purposes of each of the LM3000
Software Agreement and the Patent License Agreement, each dated March 30, 1998
by and between Telxon and Aironet and the Tax Benefit and Indemnification
Agreement dated March 31, 1998 by and between Telxon and Aironet, and any other
agreement for which such acknowledgement would be appropriate.
SECTION 3. NON-COMPETITION AGREEMENT.
3.1 As an additional material inducement for Cisco to enter into
the Merger Agreement and consummate the Merger, from and after the date hereof
and prior to the consummation of the Merger for so long as the Merger Agreement
shall remain in effect, and upon the consummation of the Merger for a period of
two (2) years after the Effective Time, Telxon will not, other than through its
ownership of Aironet stock between the date hereof and the Effective Time, as
an employer, employee, agent, consultant, advisor, independent contractor,
partner, officer, director, stockholder, investor, member, lender or guarantor
of any business corporation, partnership or other entity, or in any other
capacity, directly or indirectly, on a worldwide basis:
(i) design or develop any PHY and/or MAC level
networking devices, or acquire (by means of merger, stock
purchase, asset purchase or otherwise) any business that
designs or develops such devices, which comply with the IEEE
802.11 standard (including each of the various specifications
thereunder), and any drafts, proposals, extensions and
modifications to the IEEE 802.11 standard and the
specifications thereunder (collectively, the "Business"); or
(ii) permit Telxon's name to be used in connection
with the Business.
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3.2 Notwithstanding the foregoing, Telxon may beneficially own,
directly or indirectly, solely for investment purposes, up to two percent (2%)
of any class of "publicly traded securities" of any person or entity which owns
or operates a business that is competitive or substantially similar to the
Business. The term "publicly traded securities" shall mean securities that are
traded on a national securities exchange or quoted on the National Association
of Securities Dealers Automated Quotation System.
3.3 If any restriction set forth in this Section 3 is found by a
court to be unreasonable and therefore unenforceable, or for any other reason
to be unenforceable, then Telxon agrees, and hereby submits, to the reduction
and limitation of such prohibition to such area or period as shall be deemed
enforceable.
SECTION 4. STOCKHOLDER LAWSUIT INDEMNIFICATION.
(a) INDEMNIFICATION. Telxon shall indemnify and hold
harmless Cisco and the Surviving Corporation and their respective directors,
officers, representatives, agents and affiliates (within the meaning of the
Securities Act of 1933, as amended) (collectively, the "Indemnified Parties")
from and against any cost, damage, disbursement, expense, liability, judgment,
loss, deficiency, obligation, penalty or settlement of any kind or nature,
whether foreseeable or unforeseeable, including, but not limited to, interest
or other carrying costs, penalties, legal, accounting and other professional,
expert witness and consultant fees and expenses incurred in investigation,
response to collection, prosecution and defense of claims and amounts paid to
settlement (collectively, "Losses") that may be imposed on, incurred or
suffered by any Indemnified Party as a result of or in connection with the two
class action lawsuits filed by Telxon's stockholders in the court of Chancery
of the State of Delaware on May 8, 1998 or the 27 class action lawsuits filed
by Telxon's stockholders in the U.S. District Court, Northern District of Ohio
from December 1998 through March 1999, including any successor or consolidated
actions or any future lawsuits or actions arising out of or with respect to the
facts alleged in such pending actions (each, an "Action").
4.1 PROCEDURES. If any Action indemnifiable under this Section 4
shall be brought, asserted or threatened against any person indemnified under
this Section 4, the Indemnified Party shall promptly notify the indemnifying
person ("Indemnitor"); PROVIDED that any failure to notify Indemnitor timely or
at all shall reduce the liabilities and obligations of Indemnitor under this
Section 4 only to the extent Indemnitor actually shall be prejudiced by the
failure. Indemnitor shall assume the payment of all related fees and expenses
to the Action, and Indemnitor may, at its option, assume the defense of, or
respond to, the Action. If Indemnitor has assumed the defense of (or responded
to) the Action, then the Indemnified Party shall not have the right to assume
the defense of (or respond to) the Action and, subject to the provisions of
this Section 4, Indemnitor shall have the right to control the defense,
compromise or settlement of any such Action. If Indemnitor, within 30 days
after notice of any such Action, or such shorter period as is reasonably
required, fails to assume the defense of such Action, the Indemnified Party
will have the right to undertake the defense, compromise or settlement of such
Action on behalf of, and for the account and risk, and at the expense of,
Indemnitor, subject to the right of Indemnitor to assume the defense of such
Action at any time prior to settlement, compromise or final determination
thereof. The Indemnified Party
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shall be bound by the result of the defense of any Action, whether the defense
shall have been assumed by Indemnitor or by the Indemnified Party; PROVIDED,
HOWEVER, that Indemnitor shall not enter into any settlement or compromise of
any Action or consent to the entry of any judgment (i) which does not include
as an unconditional term thereof the delivery to the Indemnified Party, of a
written release from all liability in respect of such Action or (ii) for other
than monetary damages to be borne by Indemnitor, without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld. The Indemnified Party shall cooperate fully in all aspects of any
investigation, defense, pre-trial activities, trial, compromise, settlement or
discharge of any Action in respect of which indemnity is sought pursuant to
this Section 4; PROVIDED that in any event the costs associated therewith shall
also be deemed Losses hereunder.
4.2 APPEAL. Notwithstanding anything in this Section 4 to the
contrary, if, in connection with an Action indemnifiable under this Section 4,
a court, governmental body or other authority of competent jurisdiction or
other person having authority or jurisdiction over a matter or matters related
to the Action shall have rendered, entered or granted a binding judgment,
decision, ruling, order or award with respect to the matter or matters
providing for the payment of money damages or the claimant and Indemnitor shall
have agreed to settle the Action for an amount of money damages without
reservation of any rights or defenses against the Indemnified Party, and if the
Indemnified Party elects to appeal the judgment, decision, ruling, order or
award or declines to agree to the proposed settlement, as the case may be, then
the Indemnified Party may continue to defend the Action, free of any
participation by Indemnitor, but the amount of any ultimate liability under
this Section 4 with respect to Losses related to or allegedly arising in
connection with the matter or matters that shall have been comprehended by the
judgment, decision, ruling, order or award or by the proposed settlement, as
the case may be, shall then be limited to the amount of the judgment, decision,
ruling, order or award or the amount of the proposed settlement, as the case
may be.
4.3 LIMITATION ON OTHER RIGHTS OF RECOVERY. The rights of the
Indemnified Party to indemnification as provided for in this Section 4 shall
constitute the Indemnified Party's sole remedy against Indemnitor for
indemnification with respect to an Action and Indemnitor shall have no other
liability or damages to the Indemnified Party resulting from any Action. The
provisions of this Section 4 shall not eliminate or otherwise limit the right
of any Indemnified Party hereunder or any other person to seek to recover
contribution, damages or otherwise enforce its rights against any person other
than Indemnitor without regard to the provisions of this Section 4.
SECTION 5. MISCELLANEOUS.
5.1 FURTHER ASSURANCES. Each party hereto, at the reasonable
request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary
or desirable for effecting completely the consummation of this Agreement.
5.2 GOVERNING LAW AND VENUE. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware,
without regard to conflict or choice of laws, statutes, regulations, rules or
principles. ANY ACTION RELATING TO THE
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EXECUTION OR PERFORMANCE OF THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS,
STATE OR FEDERAL SITTING IN DELAWARE, AND EACH PARTY HERETO CONSENTS TO THE
JURISDICTION AND VENUE OF SUCH COURTS, AND AGREES NOT TO CONSENT VENUE ON THE
GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE.
5.3 SEVERABILITY. In addition to the reformation provision of
Section 3, if any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
then the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
5.4 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other.
5.5 AMENDMENT AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
5.6 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Cisco will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Telxon set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Cisco upon any such violation, Cisco shall
have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Cisco at law
or in equity and each of Aironet and Telxon hereby waives any requirement for
the security or posting of any bond in connection with such enforcement.
5.7 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with confirmation of receipt) to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
(a) If to Telxon to:
Telxon Corporation
3330 West Market Street
Akron Ohio, 44333
Attention: President
Facsimile No.: (330) 664-2220
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(b) If to Aironet to:
Aironet Wireless Communications, Inc.
3875 Embassy Parkway
Akron, OH 44333
Attention: Roger J. Murphy
Facsimile No.: (330) 664-7922
(c) If to Cisco to:
Cisco Systems, Inc.
170 West Tasman Drive
San Jose, CA 95134-1706
Attention: Senior Vice President, Legal
and Government Affairs
Facsimile No.: (408) 526-5925
with a copy to:
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
Attention: Therese A. Mrozek, Esq.
Facsimile No.: (650) 496-2885
; or to such other address as any party hereto may designate for itself by
notice given as herein provided.
5.8 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
5.9 ENTIRE AGREEMENT. This Agreement represents and contains the
entire agreement and understanding among the parties hereto with respect to the
subject matter of this Agreement, and supersedes any and all prior oral and
written agreements and understandings.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first above written.
CISCO SYSTEMS, INC.
By: /s/ Larry Carter
Name: Larry Carter
Title: Sr. Vice President, Finance and
Administration, Chief Financial
Officer and Secretary
TELXON CORPORATION
By: /s/ John W. Paxton, Sr.
Name: John W. Paxton, Sr.
Title: Chairman and CEO
AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Roger J. Murphy
Name: Roger J. Murphy
Title: President and CEO
[SIGNATURE PAGE TO AGREEMENT]
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SCHEDULE 1
1. Nondisclosure Agreement, dated March 31, 1998, by and between Telxon
and Aironet.
2. LM3000 Software Agreement, dated March 30, 1998, by and between Telxon
and Aironet.
3. Patent License Agreement, dated March 30, 1998, by and between Telxon
and Aironet.
4. Tax Benefit and Indemnification Agreement, dated March 31, 1998, by
and between Telxon and Aironet.
5. Patent License Agreement, dated August 4, 1999, by and between Telxon
and Aironet.
6. Lease for 91 Springside Drive, dated April 1, 1998, by and between
Telxon and Aironet.
7. Sublease for 3875 Embassy Parkway, dated August 1, 1998, by and
between Telxon and Aironet.
8. Cross Covenant Not to Sue, dated March 31, 1998, by and between Telxon
and Aironet.
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EXHIBIT A
PURCHASE AGREEMENT
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PURCHASE AGREEMENT
Between: and:
Aironet Wireless Communications, Inc. Telxon Corporation
3875 Embassy Parkway 3330 West Market Street
Akron, Ohio 44333 Akron, Ohio
(330) 664-7900
(330) 664-7922 (Fax)
("Aironet") ("Buyer")
1. PRODUCTS, PRICES, TAXES AND TERM. Aironet agrees to sell its products
("Products") to Buyer in available quantities for use by Buyer or sale by
Buyer to its customers as part of ,or for use with, Buyer's finished
products. Buyer shall place its orders for Products in writing specifying
the Products ordered, quantity and desired shipping date. Prices for the
Products shall be the same price Aironet charges its other customers for
same Products in like quantities and similar terms and conditions. Prices
are F.O.B. point of shipment, exclusive of shipping charges, federal,
state and/or local excise, sales, use property, occupation or similar
taxes. This agreement supersedes any terms or conditions contained in
printed forms submitted by either party in connection with this purchase,
such as purchase orders, sales acknowledgments or invoices, which shall be
void and of no effect. The term of this agreement is the one year period
commencing on the date of the last signature below, provided that the term
may be extended by mutual written agreement of the parties. Aironet may
terminate this agreement prior to the expiration of the term upon Telxon's
material breach, provided that Telxon shall have five days from written
notice of breach to cure and avoid termination.
2. CREDIT APPROVAL AND PAYMENT TERMS. Buyer shall pay for its orders net 30
days from the date of invoice. Aironet's invoicing and shipment of orders
is subject to Aironet's approval of Buyer's credit. Buyer will provide
Aironet with such financial information as Aironet reasonably requests to
establish credit approval. Aironet may assess late charges of up to one
and one-half percent (1 1/2%) per month or a higher rate as may be allowed
by law. Aironet may also collect from Buyer all costs, including
reasonable legal fees, which Aironet may incur to collect any delinquent
amount.
3. DELIVERY. Aironet will use reasonable efforts to meet the delivery dates
specified in Buyer's orders; however, Aironet will not be liable for
delays in delivery for any reason. Aironet will select the carrier, who
will deliver the Products to Buyer at the location(s) shown in Buyer's
orders, or as otherwise agreed in writing by the parties. Title and risk
of loss or damage will pass to Buyer at Aironet's place of shipment upon
delivery to the first carrier. Buyer may not cancel this agreement for any
reason. Buyer may modify or cancel its orders without charge if done at
least sixty days prior to the scheduled shipping date. Orders may not be
modified or canceled sixty or fewer days prior to the scheduled shipping
date.
4. WARRANTY. Aironet warrants the Aironet manufactured products purchased
pursuant to this agreement against defects in material and
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workmanship under normal use and service for one year from the date of
shipment to Buyer. Aironet, at its option, will at no charge either
repair, replace, or refund the purchase price of the Product during the
warranty period provided it is returned in accordance with the terms of
this warranty to the location specified by Aironet from time to time.
Repair, at Aironet's option, may include the replacement of parts or
boards with functionally equivalent reconditioned or new parts or boards.
Replaced parts or boards are warranted for the balance of the original
applicable warranty period. All replaced parts, boards, or Product shall
become the property of Aironet. This warranty is extended by Aironet to
Buyer only and is not assignable or transferable to any other party.
Aironet is not responsible under this warranty for ancillary equipment,
whether or not manufactured by Aironet, which is attached to or used in
connection with the Product, nor for operation of the Product with any
such ancillary equipment. Because each Product system is unique, Aironet
disclaims liability for range, coverage, or operation of the system as a
whole under this warranty. This warranty does not cover: defects or damage
resulting from use of the Products in other than its normal and customary
manner; defects or damage from misuse, accident or neglect; defects or
damage from improper testing, operation, maintenance, installation,
alteration, modification or adjustment; breakage or damage to antennas
unless caused directly by defects in material or workmanship; product
disassembled or repaired in such a manner as to adversely affect
performance or prevent adequate inspection and testing to verify any
warranty claim; or Product which has had the serial number removed or made
illegible.
5. PATENT AND COPYRIGHT INDEMNIFICATION. Aironet agrees to defend, at its
expense, any suits against Buyer based upon a claim that the Products
purchased hereunder infringe a now existing U.S. patent or copyright and
to pay costs and damages finally awarded in any such suit, provided that
Aironet is notified promptly in writing of the suit and Aironet is given
sole control of said suit and is provided by Buyer with all requested
assistance for defense of same. If the use or sale of any Products
furnished is enjoined as a result of such suit, Aironet at its option and
at no expense to Buyer will either (i) obtain for Buyer the right to use
or sell the Products, (ii) substitute a substantially equivalent product
or (iii) require the return of the Products and reimburse Buyer the
purchase price, less a charge for reasonable wear and tear and
depreciation. This indemnity does not extend to any suit based upon any
infringement or alleged infringement of any patent or copyright by
Products which have been altered by any person or entity other than
Aironet or by the combination of any Products with other items other than
when the Products are used for their intended purpose. This states the
entire liability of Aironet for intellectual property infringement.
6. FIRMWARE, MASK WORKS, SOFTWARE AND LICENSE DISCLAIMER. The Products may be
accompanied by software, and one or more components of the Products may
contain firmware or mask works programs built into their circuitry.
Buyer's purchase of the Products includes a non-exclusive, royalty-free,
non-transferable license to use such software, firmware and mask works
with or as part of the Products, but only under the conditions prescribed
by this Section 6. Any firmware, mask works or software which Aironet
furnishes with the Product is subject to the following minimum conditions,
in addition to those which may be imposed by law or other license terms
included with the Products: (i) Aironet (or its supplier) retains all
title and ownership to such firmware, mask works or software, and Aironet
reserves all rights in patents, copyrights, trade secrets and other
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intellectual property in it; (ii) Buyer may not copy, disassemble,
decompile or reverse engineer the firmware, mask works or software under
any circumstances, nor will Buyer assist or cooperate with third parties
attempting any of the foregoing; and (iii) Buyer will exercise the same
care to prevent any unauthorized copying or dissemination by Buyer's
customers and others who are to use the Products as Buyer would take to
protect Buyer's own proprietary information, but in no event less than
reasonable care. If Buyer ever transfers the Products to any other party,
Buyer shall bind its transferee to the terms of this Section 6. Except for
the right to use the software, firmware or maskworks as provided in this
Section 6, nothing contained in this agreement shall be deemed to grant to
Buyer or any other person or entity, either directly or by implication,
estoppel, or otherwise any license or right under any patents, copyrights,
trademarks or trade secrets of Aironet or any third party.
7. WARRANTY DISCLAIMERS. THE WARRANTY GIVEN IN SECTION 4 IS LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED. SECTION 4 SETS FORTH
THE FULL EXTENT OF AIRONET'S RESPONSIBILITIES AND LIABILITY REGARDING THE
PRODUCTS, AND REPAIR, REPLACEMENT, OR REFUND OF THE PURCHASE PRICE, AT
AIRONET'S OPTION, IS BUYER'S EXCLUSIVE REMEDY. SECTION 5 SETS FORTH THE
FULL EXTENT OF AIRONET'S RESPONSIBILITY AND LIABILITY REGARDING
INTELLECTUAL PROPERTY INFRINGEMENT.
8. CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL AIRONET BE LIABLE FOR ANY
LOSS OF USE, LOSS OF TIME, LOST DATA, INCONVENIENCE, COMMERCIAL LOSS, LOST
PROFITS OR SAVINGS OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
REGARDLESS OF HOW ARISING OR WHETHER AIRONET HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL
LIABILITY OF AIRONET AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE
SHALL BE LIMITED TO THE PURCHASE PRICE PAID TO AIRONET FOR THE AFFECTED
PRODUCTS DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR
CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY
IS CUMULATIVE AND NOT PER INCIDENT.
10. GOVERNMENT SALES. Any software or firmware which is part of or accompanies
the Products constitutes commercial computer software programs developed
at private expense, and to the extent that the Products or any
accompanying software is provided to or on behalf of the United States of
America, its agencies and/or instrumentalities (collectively, the
"Government"), Buyer must provide such Products (A) with "restricted
rights" within the meaning of, and use, duplication and disclosure thereof
by the Government is subject to the restriction set forth in, the Rights
in Technical Data and Computer Licensed Program clause at 48 C.F.R.
252.227-7013 and (B) Buyer shall provide that the software and firmware
constitute "restricted computer
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software" within the meaning of the Commercial Computer Licensed Program -
Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable, or as set
forth in the particular department or agency regulations or rules which
provide protection equivalent to or greater than the above cited clauses
or any successor provisions to any of the foregoing. The
Manufacturer/Contractor is Aironet Wireless Communications, Inc., 3875
Embassy Parkway, Akron, Ohio 44334.
11. COMPLIANCE WITH LAW. Buyer shall not use or transfer the Products except
in accordance with all applicable federal, state, and local laws and
regulations. In the event that Buyer uses or sells the Products outside of
the United States, Buyer shall comply with all the United States export
control laws and similar laws of the foreign county involved. The Products
have been configured to operate in the United States unless otherwise
agreed by Aironet as to any specific order.
12. YEAR 2000. In reference to requests regarding "Year 2000" compliance,
please be advised that for all Aironet products, there is no reliance upon
any function that keeps time or calendar information. Therefore, Aironet
products do not require any "Year 2000" specific modifications or updates
to operate correctly before, during or after the year 2000, provided that
all other products (for example, hardware, software and firmware) used
with the Aironet products, properly exchange accurate data with it.
13. GENERAL. Buyer may not assign this agreement or Buyer's rights or
obligations hereunder without the express written consent of Aironet.
Notices under this agreement must be sent by telegram, telex, telecopy, or
registered or certified mail to the appropriate party at its address
stated on the first page of this agreement (or to a new address if the
other has been properly notified of the change). If Aironet, the notice
must be addressed to the President of Aironet. A notice will not be
effective until the addressee actually receives it. All terms and pricing
of this agreement are confidential and Buyer will not disclose same
without Aironet's prior written consent. This agreement constitutes the
entire and final expression of agreement between the parties pertaining to
the subject matter of the agreement and supersedes all other
communications between the parties, including all previous oral or written
communications. If any provision is held invalid all other provisions
shall remain valid, unless such invalidity would frustrate the purpose of
this agreement. No waiver of any term, or alteration or modification of
the agreement will be binding upon either Buyer or Aironet unless made in
writing and signed by an authorized representative of each. No failure or
delay to act on any rights under this agreement shall be construed as a
waiver of these or any other rights of the parties. Any term which by its
nature survives the expiration or termination of this agreement shall so
survive. This agreement shall be governed in accordance with the law of
the state of Ohio without regard to conflict-of-laws principles.
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IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their duly-authorized representatives as of the dates set forth
below.
AIRONET WIRELESS COMMUNICATIONS, INC. TELXON CORPORATION
------------------
By: By:
______________________
(Authorized Signature) (Authorized Signature)
(Print Name) (Print Name)
Title: Title:
Date: Date:
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EXHIBIT B
LICENSE AGREEMENT
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LICENSE AGREEMENT
This License Agreement (this "Agreement") is made as of November 8,
1999, by between Aironet Wireless Communications, Inc. ("Aironet") and Telxon
Corporation. This Agreement shall become operative only upon closing
("Closing") under the Agreement and Plan of Merger and Reorganization dated as
of the date hereof by and among Cisco Systems, Inc., Aironet, and Osprey
Acquisition Corporation.
BACKGROUND
WHEREAS, Aironet and Telxon are parties to a License, Rights, and
Supply Agreement dated as of March 31, 1998 (together with all exhibits and
schedules thereto and as amended, the "Prior Agreement"), pursuant to which
Aironet has granted to Telxon certain rights and licenses, and has agreed to
supply Telxon with certain products; and
WHEREAS, to accommodate changes in the respective business plans of
the parties, effective as of the Closing, the Prior Agreement is hereby
terminated and this Agreement shall be entered into in its place.
AGREEMENT
NOW, THEREFORE, based on the mutual rights, obligations,
representations, and warranties set forth below, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. LICENSE. Subject to the other provisions of this Agreement, Aironet
hereby grants a perpetual (subject to Section 14), worldwide, non-exclusive
fully paid license to Telxon to make, support, service, maintain, repair,
integrate, install, combine, use, market, sell, lease, and transfer the
hardware products identified in SCHEDULE 1 and to copy the software and
firmware used therein and to load or integrate the software and firmware into
such hardware and to transfer such copies, in object code form only, with its
associated hardware and to support, service and maintain the software and
firmware (such hardware, software and firmware being collectively referred to
as "Legacy Products") to its customers. Telxon shall, and shall require its
distributors, OEMs, VARs and other resellers to, include an end user software
license with each copy of the software distributed with Legacy Products in an
end user in form reasonably acceptable to Aironet.
2. TERMINATION OF PRIOR AGREEMENT. The Prior Agreement and all
licenses and rights thereunder are terminated effective as of the Closing;
provided, however, that the following sections of the Prior Agreement and only
those sections shall survive termination: Sec. 18.3 (Confidentiality), 18.5
(Limitation of Liability).
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3. NO ROYALTIES. No royalties or fees are due in payment of the rights
and licenses granted to Telxon in this Agreement which are fully paid.
4. CONTRACTORS. Telxon may have the licensed activities performed for
it by third parties that are not direct competitors of Aironet, but Telxon has
no right to sublicense or re-license its rights hereunder.
5. RESTRICTIONS. Telxon shall not:
5.1 prepare improvements, refinements, enhancements,
modifications, adaptations, revisions, or derivatives of the Legacy
Products, except for minor changes to permit the Legacy Products to be
compatible or interface with Telxon's finished products,
5.2 sell any subassemblies or radios for Legacy Products
unless they are integrated into such products or are sold as repair or
replacement parts for such products, either by Telxon directly to an
end user or indirectly through a Telxon reseller, distributor, OEM, or
other channel partner or service or repair vendor;
5.3 sell Legacy Products through its alternate distribution
channels except to those partners which are certified to sell complete
Telxon integrated PTCs and pen-based products; or
5.4 otherwise engage in any activities prohibited under
Section 2.7 of the Prior Agreement.
6. DOCUMENTS. Telxon is in possession of documentation, procedures,
engineering drawings, manufacturing specifications, know how, schematics,
diagnostic programs, test procedures, code , specifications, vendor and parts
lists, technical bulletins, and the like necessary for Telxon to exercise its
rights under the license ("Documentation"). Telxon may copy and use the
Documentation in connection with the exercise of the license.
6.1 COPYRIGHT NOTICES. Telxon shall ensure that all copies of
the Documentation in Telxon's possession or control incorporate
copyright and other proprietary notices in the same manner that
Aironet incorporates such notices in the Documentation or in any
manner reasonably requested by Aironet. Telxon shall promptly notify
Aironet in writing upon its discovery of any unauthorized use of the
Documentation or infringement of the Documentation or Aironet's
proprietary rights in the Documentation.
6.2 PROTECTION OF DOCUMENTATION. Documentation is the
confidential and proprietary property of Aironet. Telxon receives no
rights to and, other than copies of Documentation customarily provided
to customers or members of its distribution channels and maintenance
providers, will not sell, assign, lease, rent, market, transfer,
encumber or suffer to exist any lien or security interest (other than
those of Aironet and
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Telxon's commercial lenders) nor allow any person, firm, or
corporation to copy, reproduce or disclose, in whole or in part in any
manner, the Documentation. Telxon shall take all reasonable steps,
both during and after the term of this Agreement, to ensure that no
unauthorized person shall have access to Documentation and that no
unauthorized copy, in whole or in part, in any form shall be made.
7. LICENSING TO U.S. GOVERNMENT. Telxon shall identify or mark any
copies of the Software and Documentation provided pursuant to any agreement
with the United States Government or any contractor therefor, as follows: (i)
For acquisition by or on behalf of civilian agencies, as necessary to obtain
protection substantially equivalent to that afforded to restricted computer
software and related documentation developed at private expenses and which is
existing computer no part of which was developed with government funds and
provided with Restricted Rights in accordance with subparagraphs (a) through
(d) of the "Commercial Computer Software Restricted Rights" clause at 48 C.F.R.
52.227-19 of the Federal Acquisition Regulations and its successors; or (ii)
For acquisition by or on behalf of units of the Department of Defense ("DOD")
as necessary to obtain protection substantially equivalent to that afforded to
commercial computer software and related documentation developed at private
expenses and provided with Restricted Rights as defined in DOD FAR Supplement
48 C.F.R. 52.227-7013(c)(1)(ii) and its successors.
8. OWNERSHIP. Neither Telxon nor Aironet shall acquire any ownership
interest in the other's intellectual property rights as a result of this
Agreement. Telxon acknowledges that the intellectual property underlying the
Legacy Products and Documentation is Aironet's sole property, and that Telxon
has no right, title, or interest in or thereto except for the license granted
in this Agreement. Aironet's and Telxon's intellectual property rights shall
remain separate property and shall not be, or be deemed to be, a joint work,
compilation, or any other type of work of multiple authorship by reason of this
Agreement.
9. NO IMPLIED RIGHTS. Except for the specific and unequivocal rights
and licenses conferred herein, nothing contained in this Agreement shall be
deemed to grant to Telxon or any other person or entity, either directly or by
implication, estoppel, or otherwise any license or right under any patents,
copyrights, trademarks, trade secrets, or other intellectual or industrial
property rights of Aironet or any third party.
10. TRADEMARKS; PROPRIETARY LEGENDS. Telxon's products, including the
Legacy Products, shall not carry any of Aironet's trademarks. Aironet may
reasonably require Telxon to mark the Legacy Products with proprietary rights
notices required either (a) by or in accordance with law or (b) to prevent
prejudice to Aironet's intellectual property rights.
11. DISCLAIMER. AIRONET MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO
ANY LEGACY PRODUCT, WHETHER EXPRESS OR IMPLIED OR ARISING UNDER ANY STATUTE OR
FROM ANY COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,
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SATISFACTORY QUALITY OR PERFORMANCE, OR NON-INFRINGEMENT.
12 Telxon shall prepare and maintain on a current basis complete and
accurate books and records, in accordance with generally accepted accounting
principles, sufficient to document compliance with this Agreement. All such
books and records shall be retained for at least three (3) years from the date
they are created. At the request of Aironet and during the normal business
hours of Telxon, no more than once in any fiscal quarter, Telxon shall permit
an Aironet's representative, to have access to such books, records and
inventories as may be necessary to determine Telxon's compliance with this
Agreement.
13. COVENANTS. Telxon agrees that it shall at all times: (i) act to
protect the Documentation with the same level of diligence and care that it
takes to protect its own trade secrets, but in no case less than a reasonable
degree of care; (ii) maintain high standards of quality in Legacy Products; and
(iii) comply in all material respects with all applicable laws, rules, and
regulations in its performance hereunder.
14. TERMINATION. Aironet may terminate this Agreement upon a material
breach by Telxon, provided that Telxon may avoid termination by curing the
breach within seven (7) days following receipt of written notice of breach from
Aironet. Upon termination or expiration Telxon shall return or destroy the
Documentation at Aironet's direction. The provisions of Section 6.2 shall
survive termination of this Agreement.
15. ASSIGNMENT. Telxon may not assign this Agreement or its rights or
obligations hereunder without the express written consent of Aironet.
16. INDEMNIFICATION. Telxon shall indemnify, defend, and hold harmless
Aironet, and its affiliates, officers, directors, employees, and agents from
and against any and all losses, liabilities, claims, and expenses (including,
without limitation, reasonable attorneys' fees) which result from or arise in
connection with Telxon's exercise of its rights hereunder.
17. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF THE OBLIGATION TO
KEEP THE DOCUMENTATION CONFIDENTIAL AND BREACH OF THE SCOPE OF THE LICENSE,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF THIS AGREEMENT OR
ANY TERMINATION OF THIS AGREEMENT WHETHER LIABILITY IS ASSERTED IN CONTRACT OR
TORT, AND IRRESPECTIVE OF WHETHER IT HAS ADVISED OR HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH DAMAGES.
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18. MISCELLANEOUS. This Agreement shall not be construed to create a
partnership, joint venture, agency relationship, or any similar arrangement
between the parties for any purpose whatsoever. This Agreement is severable.
Any determination by a court of competent jurisdiction that a provision of this
Agreement is not enforceable shall not prevent enforcement of the remaining
provisions. This Agreement may be executed in two or more counterparts, each of
which shall be deemed and enforceable as an original, and all of which together
shall constitute one and the same instrument. This Agreement shall be governed
by and construed under the laws of the State of Ohio, without regard to the
conflict of laws principles thereof. Any notices required or permitted to be
given pursuant to this Agreement shall be given in writing and delivered by
confirmed fax receipt, confirmed courier delivery, or confirmed postal delivery
and shall be deemed made upon confirmation of receipt. Such notices shall be
made to the parties at their principal offices to the attention of their
presidents. This Agreement, together with any schedules attached hereto,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof, and supersedes all prior and contemporaneous
agreements, both oral and written. This Agreement may not be amended except
pursuant to a written instrument executed by both parties hereto, nor may any
provision hereof be waived except pursuant to a written instrument executed by
the party granting such waiver.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby
execute this Agreement as of the date set forth in the first paragraph hereof.
AIRONET WIRELESS TELXON CORPORATION
COMMUNICATIONS, INC.
By:_______________________________ By:__________________________________
Roger J. Murphy, President John W. Paxton, Chairman
and Chief Executive Officer and Chief Executive Officer
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SCHEDULE 1.1
LEGACY PRODUCTS
- --------------------------- ----------------------------- -------------------------------
1000 SERIES 2000 SERIES
- --------------------------- ----------------------------- -------------------------------
900 MHz 2.4 GHz
DSSS DSSS
Proprietary Proprietary
- --------------------------- ----------------------------- -------------------------------
RADIOS: R100 (095) R200 (025)
093
091
- --------------------------- ----------------------------- -------------------------------
PC CARDS: PC1000 (690-900) PC2000 (690-2400)
- --------------------------- ----------------------------- -------------------------------
ACCESS POINTS: AP1000E (630-900) AP2000E (630-2400)
AP1000T (631-900) AP2000T (631-2400)
AP1000L (632-900) AP2000L (632-2400)
- --------------------------- ----------------------------- -------------------------------
UNIVERSAL CLIENTS: UC1000E UC2000E
UC1000S UC2000S
- --------------------------- ----------------------------- -------------------------------
OTHERS: IC1000 (655-900) IC2000 (655-2400)
MC1000 (670-900) MC2000 (670-2400)
671-900 671-2400
672-900 672-2400
POSLAN 210-900 DS2415-2400
DS2410-900
DS2445
- --------------------------- ----------------------------- -------------------------------