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EXHIBIT 10.55
2C LICENSE AGREEMENT (MOBILITY)
This 2C License Agreement (Mobility) (hereinafter "Agreement") is
entered into by and between 2C Computing, Inc. ("2C"), an Alabama corporation
with its principal place of business at 5030 Bradford Drive, Suite 230,
Huntsville, Alabama 35805, and Mobility Electronics, Inc. ("Mobility"), a
Delaware corporation with its principal place of business at 7955 E. Redfield
Road, Scottsdale, AZ 85260, effective as of the 12th day of July, 2000.
I.
RECITALS
1.1 2C owns the 2C Technology (as herein defined) and has the
right to grant non-exclusive licenses thereunder.
1.2 Mobility desires to obtain from 2C, and 2C hereby desires to
grant to Mobility, a certain non-exclusive license under the 2C Technology as
provided in this Agreement.
II.
DEFINITIONS
The following terms shall have meanings ascribed to them below:
2.1 "2C TECHNOLOGY" shall mean (i) any current or future PCI or
extended or remote PCI bus or split computer technology and all related
technology and intellectual property (including without limitation software,
patents, patents pending, trade secrets, ASIC chips and related intellectual
property blocks, designs, specifications and future enhancements, modifications
and variations thereto) now or in the future owned, developed, acquired or
licensed by 2C; and (ii) all technology and intellectual property of 2C which
enhances, modifies or improves the split computer technology of Cybex Computer
Products Corporation, an Alabama corporation ("Cybex"), represented by United
States Patent Application No. 09-430,163 for a "split computer architecture" and
United States Continuation Patent Application No. 09-430,162 or the split bridge
technology of Cycom, LLC, an Alabama limited liability company ("Cycom"), and in
each case, all related intellectual property, including without limitation
software, patents, patents pending, trade secrets, ASIC chips and related
intellectual property blocks, designs, specifications, and any future
enhancements, modifications, variations thereto, all intellectual property
associated with the adaptation of cables and connectors adapted for use with
such technology and future generations of any of the above, and any technology
developed or acquired by or for, or licensed by, 2C that incorporates any of the
above technology. Notwithstanding the above, the parties agree that 2C
Technology does not include any incorporated Mobility Technology or any
technology not owned by 2C or already licensed to Mobility by Cybex.
2.2 "MOBILITY TECHNOLOGY" shall mean all of Mobility's Split
BridgeTM Technology (as hereinafter defined), including Mobility current Split
BridgeTM ASIC chip commonly known as "Merlin" and ASIC Split BridgeTM chips
currently under development by Mobility with LSI
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Logic or developed in the future ("Mobility Split BridgeTM Chips"). This further
includes all related intellectual property and Mobility Split BridgeTM Chip
intellectual property including without limitation software, patents (including,
without limitation, United States Patent Nos. 6,070,214 and 6,088,752,), patents
pending, trade secrets, ASIC chips and related IP blocks, designs,
specifications, and any future enhancements, modifications, variations thereto,
and all intellectual property associated with the adaptation of cables and
connectors adapted for use with Mobility's Split BridgeTM Chips and technology
and future generations of any of the above. "Split Bridge Technology" is the
technology which allows a main computer PCI bus to be extended to a remote
location by connecting two proprietary Mobility Split BridgeTM Chips with a high
speed cable, and includes all of the above. Mobility Technology does not include
any incorporated 2C Technology.
2.3 "PERMITTED APPLICATIONS" shall mean any product or device or
ASIC chip containing 2C Technology for any application or purpose except those
applications identified in Article 3.3.
III.
GRANT OF LICENSE BY 2C
3.1 Subject to Mobility making the royalty payments required
pursuant to this Agreement, and during the Term, 2C grants to Mobility, for
Permitted Applications only, a worldwide, nontransferable, and nonsublicensable
right to use, sell and otherwise incorporate 2C Technology.
3.2 The rights granted in Section 3.1 will survive any change in
control of 2C.
3.3 Mobility shall not have the right to use 2C Technology in any
application or product that does not incorporate Mobility's Technology.
IV.
TITLE AND OWNERSHIP
4.1 Mobility acknowledges that 2C owns and has all rights, title
and interest in and to all intellectual property relating to 2C Technology
including all patents, patents pending, trade secrets, software, utility models,
trademarks, mask works, copyrights, and all related applications therefor,
including all future improvements, modifications, and enhancements made to 2C
Technology.
4.2 If either or both parties develop new technology, products
and/or chips that include a significant amount of both 2C Technology and
Mobility Technology for extended PCI bus systems and applications that are
beyond the capabilities of Mobility Technology, the parties agree as follows:
(a) Each party will have the right to use, sell, or otherwise market
the joint products or chips.
(b) Product or chip development cost will be funded fifty percent (50%)
by each party, or if only one party decides to fund such development, the party
that has agreed to fund
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development will receive 100% of royalties due the other party until 125% of
such development cost is recovered, or as otherwise agreed to by mutual written
consent.
(c) If the joint chips are sold by either party, the other party will
receive a royalty of 15% on the sales revenues of all such chips. Such royalty
may be adjusted from time to time by the mutual written consent of Mobility and
2C; provided, however, if the joint chips are also developed jointly with Cybex,
Cycom or any of their respective affiliates (collectively, the "Cybex Entities")
then any such royalty payable by Mobility to 2C hereunder shall be divided among
2C and the Cybex Entities as they deem appropriate and as specified in writing
to Mobility by the involved entities (including 2C); it being acknowledged and
agreed that such 15% royalty shall be the maximum aggregate amount payable by
Mobility to 2C and the Cybex Entities for any such joint chip. Both parties will
have the right to purchase and sell such chips from the manufacturing foundry at
cost.
(d) If the joint products are sold by either party, the other party
will receive a royalty of 6% on the sales revenue of all such products;
provided, however, if the joint products are also developed jointly with any
Cybex Entity then any such royalty payable by Mobility to 2C hereunder shall be
divided among 2C and the Cybex Entities as they deem appropriate and as
specified in writing to Mobility by the involved entities (including 2C); it
being acknowledged and agreed that such 6% royalty shall be the maximum
aggregate amount payable by Mobility to 2C and the Cybex Entities for any such
joint product. Such royalty may be adjusted from time to time by the mutual
written consent of Mobility and 2C. Both parties will have the right to
manufacture and sell such products.
(e) Any technology contributed by a party will be owned 100% by such
contributing party, and may not be used by the non-contributing party for any
purpose other than the joint product and/or joint chip. Any new jointly
developed technology and any associated patents and patent rights will be
jointly owned by the parties, but also may not be used for any purpose other
than the joint product and/or joint chip as provided above without the other
party's consent.
4.3 Pursuant to the terms of this agreement, 2C agrees to make
available to Mobility, to the extent it has the right to do so, all future
enhancements, variations, modifications, and future generations of 2C Technology
at a royalty rate defined below.
V.
ROYALTIES AND LINK PURCHASES
During the Term, Mobility shall pay to 2C royalties as follows:
5.1 On all sales by Mobility of any product incorporating any 2C
Technology, 6% of Mobility's sale price of such product. This royalty will not
apply to any products sold by Mobility which are purchased from Cybex Computer
Products Corporation or 2C or its affiliates (including, without limitation,
Cycom, LLC) for resale.
5.2 Subject to availability (it being acknowledged and agreed that
Mobility shall be treated at least similar to 2C's other customers), 2C and its
affiliates shall offer for sale to Mobility any of their products that
incorporate 2C Technology or Mobility Technology. The price of such product
sales to Mobility will be at a rate no greater than the lowest rate offered to
any third party independent of 2C or its affiliates that purchases the same
product at comparable
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volumes. Moreover, 2C and its affiliates agree to provide Mobility an
appropriate discount on the pricing for the applicable products if the
applicable 2C or affiliate product incorporates a material amount of Mobility
Technology at terms to be mutually agreed upon in writing.
5.3 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 at least 30 days prior to the date a
royalty payment is due. Within 30 days after the end of each quarter, Mobility
shall furnish to 2C a report providing the number and types of 2C Technology
sold, the applicable royalty rate, and the total royalty paid.
5.4 Mobility agrees to make and maintain such books, records and
accounts as are reasonably necessary to verify the royalty payments due 2C under
this Agreement. An independent certified public accountant, selected by 2C, 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 Mobility which are necessary to determine the accuracy of the
royalty payments made to 2C. In the event that the independent audit reveals
that the royalties owed by Mobility for any given quarter are more than 5%
greater than the royalties actually paid by Mobility for that quarter, then in
addition to remitting all outstanding royalties shown to be due under the audit,
all expenses incurred by 2C in conducting the audit shall be paid by Mobility
within 30 days of receiving the auditor's report; otherwise, all expenses
incurred by 2C in conducting the audit shall be borne by 2C.
5.5 2C intends to develop, at 2C's cost and expense, a new
physical interface transistor chip (the "PI Chip"). 2C agrees that 2C will sell
the PI Chip to Mobility at a price equal to the lower of: (a) the lowest price
offered to any third party independent of 2C and its affiliates that purchase
the PI Chip at comparable volumes or (b) a mutually agreeable price which
provides for the amortization of 2C's NRE costs.
VI.
COVENANTS
6.1 2C hereby covenants not to utilize 2C Technology, Mobility
Technology or any technology jointly developed by Mobility and 2C in any docking
station product, application, or purpose for portable or handheld computers.
VII.
TERM AND TERMINATION
7.1 The Term of this agreement is perpetual and can only be
terminated upon the written consent of both 2C and Mobility 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
Mobility to pay any royalties when due and/ or the use of 2C Technology except
as permitted in this Agreement.
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VIII.
REPRESENTATIONS AND WARRANTIES
8.1 REPRESENTATIONS AND WARRANTIES OF 2C. 2C hereby represents,
warrants and covenants to Mobility that as of the execution date of this
Agreement:
(a) 2C is a corporation duly organized, validly existing and in good
standing under the laws of the State of Alabama, with full power to carry on its
business and activities as now being conducted;
(b) This Agreement has been duly authorized, executed and delivered by
2C. 2C has the corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. No other act, approval or proceeding on the
part of 2C is or will be required to authorize the execution and delivery of
this Agreement, or the consummation of the transactions contemplated hereby; and
(c) The execution and delivery by 2C of this Agreement will not, and
the fulfillment of and compliance by 2C with the terms, conditions and
provisions hereof will not, (i) conflict with any of the terms, conditions or
provisions of the articles of incorporation or by-laws of 2C, (ii) violate any
term, condition or provision of, or require any consent, authorization or
approval under, any judicial or arbitration judgment, order, award, writ,
injunction or decree applicable to 2C, or (iii) conflict with, result in a
breach of, constitute a default under (whether with or without the giving of
notice or the lapse of time or both), or accelerate or permit the acceleration
of the performance required by, or require any consent, authorization or
approval under any document, instrument, agreement or license to which 2C or a
person under its control is a party or is bound or to which any of the assets or
properties of 2C or such person are subject, other than as set forth on Exhibit
A attached hereto.
8.2 REPRESENTATIONS AND WARRANTIES OF MOBILITY.
(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
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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.
8.3 INDEMNIFICATION.
(a) Mobility shall indemnify, hold harmless and defend 2C, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "2C Indemnitee") from and against any and all claims,
suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts witness fees and court costs) incurred by any 2C
Indemnitee arising out of, resulting from or otherwise concerning a breach by
Mobility of any of Mobility's representations and warranties contained in this
Article 8.
(b) 2C shall indemnify, hold harmless and defend Mobility, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Mobility Indemnitee") from and against any and all
claims, suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts' fees and court costs) incurred by any Mobility
Indemnitee arising out of, resulting from or otherwise concerning a breach by 2C
of any of 2C's representations and warranties contained in this Article 8.
(c) Any 2C Indemnitee or Mobility 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
Mobility or 2C, as appropriate (the "Indemnitor"), of any claim or suit brought
against such 2C Indemnitee or Mobility Indemnitee in respect of which such 2C
Indemnitee or Mobility 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 2C Indemnitee or
Mobility Indemnitee, as the case may be, as above provided and keep such 2C
Indemnitee or Mobility Indemnitee fully informed on a current basis of the
Indemnitor's defense and/or settlement of such claim or suit. The 2C Indemnitee
or Mobility 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. 2C and Mobility 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 Mobility and 2C associated
with their respective obligations under this Agreement and the payments provided
to 2C hereunder.
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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, 2C and
Mobility, respectively, will treat and maintain the proprietary business,
technical, patent prosecution and other proprietary information, to include the
documentation and comments communicated between 2C and Mobility (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, 2C or
Mobility 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 2C or Mobility 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
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(vi) that the recipient is required to disclose pursuant
to lawful legal process or other applicable law.
X.
DISCLAIMER OF WARRANTIES
10.1 MOBILITY ACKNOWLEDGES THAT ITS USE OF THE 2C TECHNOLOGY IS AT
THE SOLE RISK OF MOBILITY. THE 2C TECHNOLOGY MAY CONTAIN DEFECTS, FAIL TO COMPLY
WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS RESULTS WHEN
OPERATED ALONE OR IN COMBINATION WITH OTHER TECHNOLOGY OR ANY OTHER HARDWARE,
SOFTWARE, EQUIPMENT, OR PRODUCTS. MOBILITY ACCEPTS THE 2C TECHNOLOGY "AS IS."
NEITHER 2C NOR MOBILITY 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, 2C SPECIFICALLY DOES NOT
WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS: (i) THAT THE 2C TECHNOLOGY WILL
MEET MOBILITY'S REQUIREMENTS; (ii) THAT ANY PRODUCT INCORPORATING THE 2C
TECHNOLOGY WILL BE ERROR FREE OR OPERATE IN AN UNINTERRUPTED MANNER; (iii)
REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE 2C TECHNOLOGY IN TERMS OF
CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK
AS TO THE RESULTS AND PERFORMANCE OF THE 2C TECHNOLOGY IS ASSUMED BY MOBILITY.
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 2C OR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY
OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND MOBILITY SHALL NOT RELY
ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMERS OF WARRANTY
CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. MOBILITY AGREES TO RELEASE 2C
FROM ANY LIABILITY ANY CUSTOMER OF MOBILITY SUFFERS OR INCURS DUE TO THE USE OF
ANY PRODUCT INCORPORATING THE 2C TECHNOLOGY. Mobility shall include with the
sales documentation for any product which incorporates 2C Technology or 2C 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 Mobility to bring or prosecute actions or suits on behalf
of 2C against third parties for patent infringement or conferring any right to
bring or prosecute actions or suits on behalf of 2C against third parties for
patent infringement.
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10.4 With the sole exception of its obligations to indemnify set
forth in Paragraph 8.3, 2C's entire liability to Mobility 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 Mobility to 2C pursuant
to this Agreement.
XI.
GENERAL PROVISIONS
11.1 MARKINGS. Mobility agrees to identify 2C's products and
packaging incorporating 2C Technology in a manner approved by 2C, which approval
will not be unreasonably withheld.
11.2 SUPPORT. 2C agrees to provide reasonable support to Mobility
to educate Mobility in the use of 2C Technology at no charge. Additionally, 2C
will provide Mobility with development and architecture systems support to meet
Mobility'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 2C and Mobility and their respective
permitted successors and permitted assigns. Subject to the following, the rights
and licenses of Mobility under this Agreement are personal to Mobility.
Notwithstanding the foregoing, Mobility may assign its rights and licenses under
this Agreement to any Affiliate (as hereinafter defined) or any successor to all
or substantially all of its business or assets without the prior written consent
of 2C, provided such Affiliate or successor assumes in writing the obligations
of Mobility under this Agreement. Mobility Indemnitees and 2C 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. 2C shall not assign or transfer the 2C Technology or grant
any security interest, lien, right, license or other encumbrance upon or
respecting the 2C 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 Mobility or of another Affiliate of Mobility
and any and all corporations, partnerships, limited liability entities, and
other entities that are under common control with Mobility or any successor to
all or substantially all of the business of Mobility 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 Mobility
then outstanding (treating as outstanding any interests obtainable by Mobility
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.
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11.5 ARBITRATION. Except as otherwise provided for in this
Agreement, all disputes, claims and controversies between the parties to this
Agreement shall be submitted to arbitration before a panel of three arbitrators.
The arbitration shall be conducted according to the commercial arbitration rules
and the rules governing large, complex cases of the American Arbitration
Association. A party shall commence arbitration under this paragraph by
submitting a concise statement of its claim and a demand for arbitration to the
other party and to the American Arbitration Association. The decision and award
of the arbitrators shall be final and binding, and the award so rendered may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in Atlanta, Georgia. 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 Atlanta, Georgia.
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.
Charles Mollo
Chief Executive Officer
7955 E. Redfield Road
Scottsdale, AZ 85260
To 2C: 2C Computing, Inc.
Remigius G. Shatas
President/CEO
5030 Bradford Drive, Suite 230
Huntsville, Alabama 35805
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
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and all other communications between the parties relating to such subject
matter. Each party represents and warrants to the other party that in entering
into this Agreement it has not relied on any representations, promises or
assurances from the other party or any employee, officer, director,
representative, or attorney of the other party not expressly contained in this
Agreement. Any other terms or conditions shall not be incorporated herein or be
binding upon either party unless expressly agreed to in writing by both parties.
11.11 SEVERABILITY. If any provision of this Agreement is declared
or found to be illegal, unenforceable or void, then both parties shall be
relieved of all obligations arising under such provision, but only to the extent
that such provision is illegal, unenforceable or void. Further, this Agreement
shall be deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable while preserving its intent or, if that is not
possible, by substituting therefor another provision that is legal and
enforceable and achieves the same intended objective. If the remainder of this
Agreement shall not be affected by such illegal, unenforceable or void provision
and is capable of substantial performance, then each provision not so affected
shall be enforced to the extent permitted by law.
11.12 INTERPRETATION. In any interpretation of this Agreement, it
shall be deemed that this Agreement was prepared jointly by the parties, and no
ambiguity shall be construed or resolved against either party on the premise or
presumption that such party was responsible for drafting this Agreement.
11.13 WAIVER. No delay or omission by either party to exercise any
right or power hereunder shall impair any right or power or be construed to be a
waiver thereof. A waiver by either of the parties of any of the covenants,
conditions or agreements to be performed by the other party or any breach
thereof shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenant, condition or agreement contained herein. All remedies
provided for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to either party at law, in equity or
otherwise, and may be enforced concurrently therewith or from time to time.
11.14 HEADINGS. Captions, headings and titles in this Agreement are
for reference purposes only and are neither part of this Agreement nor to be
used for purposes of interpreting the Parties' intent.
11.15 FURTHER ACTS. Each party shall do, or cause to be done, all
such further acts, and shall execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, any and all such further documentation as
the other party reasonably requires to carry out the purposes of this Agreement.
11.16 MEDIA RELEASES. All media releases, public announcements and
public disclosures by 2C or Mobility, 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 2C and Mobility may publicly
disclose the existence of this Agreement and its broad purpose, but not any of
the specific terms thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
2C COMPUTING, INC.
By: /s/ REMIGIUS G. SHATAS
-------------------------------
Its: President/CEO
------------------------------
MOBILITY ELECTRONICS, INC.
By: /s/ CHARLES R. MOLLO
-------------------------------
Its: President/CEO
------------------------------
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