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As Of Filer Filing For·On·As Docs:Size Issuer Agent 4/30/07 Proxim Wireless Corp 8-K:1,9 4/24/07 3:90K Commerce Fin’l … Corp/FA |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 24K 2: EX-10.1 Material Contract HTML 27K 3: EX-10.2 Material Contract HTML 30K
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1.
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TERABEAM
desires to transfer all of its right, title, and interest in and
to the
U.S. patents listed in Attachment A (collectively, the
“Patents”).
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2.
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SPH
desires to acquire and TERABEAM is willing to assign to SPH all
of
TERABEAM’s right, title, and interest in and to the Patents, and any
inventions disclosed and claimed therein, along in each case with
any U.S.
reissue or reexamination of any of the Patents, and with any foreign
patent or application which claims priority to any of the Patents
(including foreign divisional, continuation, continuation-in-part,
reissue, reexamination, inventor certificate, utility model, or
any other
intellectual property or other applications), and all foreign patents,
inventor certificates, utility models, or other intellectual property
rights that may be granted thereon, all rights to claim priority
on the
basis of any such patent or application, and any and all reissues,
reexaminations, and extensions of any of the foregoing (collectively,
the
“Assigned Patents”).
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3.
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Pursuant
to Section 7 below, TERABEAM shall transfer, grant, convey, assign,
and
relinquish exclusively to SPH all of TERABEAM’s right, title, and interest
in and to the Assigned Patents. TERABEAM further shall transfer
and assign to SPH all causes of action, rights, and remedies arising
under
the Assigned Patents prior to, on, or after the Effective Date
of this
Agreement, including the right to sue to enforce the Assigned Patents
and
receive damages, including past, present, and future damages, for
infringement thereof.
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4.
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In
consideration of TERABEAM’s assignment as set forth herein, (a) on or
before June 10, 2007, SPH will pay to TERABEAM the sum of ONE MILLION
dollars ($1,000,000) by wire transfer of immediately available
funds
pursuant to wire transfer instructions provided by TERABEAM within
fifteen
(15) days of the Effective Date, (b) on or before June 30, 2007
SPH will
pay to TERABEAM the sum of ONE MILLION, FIVE HUNDRED THOUSAND dollars
($1,500,000) by wire transfer of immediately available funds pursuant
to
wire transfer instructions provided by TERABEAM within fifteen
(15) days
of the Effective Date, and (c) SPH hereby grants to TERABEAM the
rights
described on Attachment C.
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5.
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TERABEAM
and SPH acknowledge that this Agreement will be filed with the
Securities
and Exchange Commission, and thus made publicly
available. TERABEAM shall file the attachments to this
Agreement only to the extent required in the opinion of its counsel
and,
if filing is required, TERABEAM shall use its reasonable efforts
to have
as much of the attachments redacted and treated
confidentially. Subject to the foregoing, the parties agree
that the provisions of the Confidentiality Agreement, dated as
of April
24, 2007, apply to the negotiation of and transactions contemplated
by
this Agreement.
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6.
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In
the event that, in any action involving any of the Assigned Patents,
there
is any allegation of invalidity, unenforceability, or noninfringement
of
any of the Assigned Patents, SPH and TERABEAM agree to cooperate
reasonably with each other in any such action at SPH’s
expense.
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7.
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TERABEAM
will execute and deliver to SPH the Assignment substantially in
the form
of Attachment B hereto with respect to each of the Assigned Patents,
in
each case before June 10, 2007 (to an escrow agent reasonably acceptable
to both TERABEAM and SPH for delivery to SPH after TERABEAM receives
the
consideration contemplated in Section 4 above) to evidence the
transfer of
TERABEAM’s rights in all the Assigned Patents from TERABEAM to SPH to the
fullest extent possible. TERABEAM further agrees to provide testimony
in
connection with any proceeding affecting the right, title, interest,
or
benefit of SPH in and to the Assigned Patents, to execute and deliver
all
other papers that may be necessary or desirable to transfer TERABEAM’s
right, title, and interest to the Assigned Patents in SPH, its
successors
and assigns, to execute all divisional, continuation, reissue,
and
reexamination applications and assignments, to make all rightful
oaths,
and to perform any other acts deemed reasonably necessary to carry
out the
intent of this Agreement, in each case at SPH’s expense except to the
extent any such costs, expenses, fees, or damages arise from the
misconduct or negligence of TERABEAM or its current employees,
agents, or
representatives and except that TERABEAM’s efforts with respect to former
employees shall be limited to reasonable
efforts.
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8.
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In
furtherance of this Agreement, TERABEAM hereby acknowledges that,
from
June 30, 2007 forward but subject to the other terms of this Agreement,
SPH has succeeded to all of TERABEAM’s right, title, and standing to
receive all rights and benefits pertaining to the Assigned Patents,
institute and prosecute all suits and proceedings, and take all
actions that SPH, in its sole discretion, may deem necessary or
proper to
collect, assert, or enforce any claim, right, or title of any kind
under
any and all of the Assigned Patents, whether arising before, on,
or after
the Effective Date, to defend and compromise any and all such actions,
claims, suits, or proceedings relating to such transferred and
assigned
rights, title, interest, and benefits, and to do all other such
acts and
things in relation thereto as SPH, in its sole discretion, deems
advisable.
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9.
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TERABEAM
represents and warrants that no consents of any other parties are
necessary under any agreements concerning any of the Assigned Patents
in
order for the transfer and assignment of any of the Assigned Patents
under
this Agreement to be legally effective, that no obligation of TERABEAM
will be breached by the assignments made herein, and that TERABEAM
shall
not execute any agreement with any third party in conflict
herewith.
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10.
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TERABEAM
represents and warrants that, to the best of TERABEAM’s knowledge, upon
consummation of this Agreement and execution of Assignments substantially
in the form of Attachment B, SPH shall have good and marketable
title to
the Assigned Patents, free and clear of any and all liens, mortgages,
encumbrances, pledges, security interests, licenses, or charges
of any
nature
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11.
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In
the case of Force Majeure preventing or hindering either party
from
performing its obligations under this Agreement, such Force Majeure
shall
not constitute a breach or default under this Agreement provided
that: (i)
the party prevented or hindered from performing (the “Affected Party”)
shall give written notice to the other party (the “Non-Affected Party”),
as soon as practically possible, containing reasonable particulars
of the
Force Majeure in question and the effect of such Force Majeure
as it
relates to the obligations of the Affected Party; and (ii) the
Affected
Party works diligently to correct the reason for such delay, excuses
performance by the Non-Affected Party during the period of such
delay, and
reimburses the Non-Affected Party for any losses incurred by the
Non-Affected Party by reason of such
delay.
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12.
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This
Agreement shall inure to the benefit of, and be binding on, the
parties
hereto together with their respective legal representatives, and
successors and assigns.
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13.
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This
Agreement shall be governed by and construed in accordance with
the laws
of the State of New York and of the United
States.
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14.
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This
Agreement merges and supersedes all prior and contemporaneous agreements,
assurances, representations, and communications between or among
the
parties hereto concerning the matters set forth
herein.
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15.
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SPH
hereby disclaims any and all warranties whatsoever in connection
with this
Agreement and any goods, services, and information provided hereunder,
whether express or implied.
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16.
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The
waiver by either party of a breach or default of any of the provisions
of
the Agreement by the other party shall not be construed as a waiver
of any
succeeding breach of the same or any other provisions, nor shall
any delay
or omission on the part of either party to exercise or avail itself
of any
right, power or privilege that it has or may have hereunder, operate
as a
waiver of any breach or default by the other
party.
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17.
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If
any provision of the Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, that provision
shall
be limited
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18.
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All
notices, requests, demands, consents, approvals, designations and
other
communications called for or contemplated by this Agreement shall
be in
writing and shall be deemed given to SPH or TERABEAM (i) when delivered
to
such party by hand or by overnight courier or delivery service,
or (ii)
three business days after being sent to such party by registered
or
certified mail (return receipt requested, postage prepaid), in
each case
at the address(es) for such party set forth above (or at such other
address as such party may designate by notice in the manner
aforesaid).
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TERABEAM,
INC.
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SPH
AMERICA, LLC
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By: /s/
Robert E. Fitzgerald
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By:
/s/ Choongsoo Park
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Date: 4/24/07
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Date: 4/24/07
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| This ‘8-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 6/30/07 | 8-K | |||
| 6/10/07 | ||||
| Filed on: | 4/30/07 | |||
| For Period End: | 4/24/07 | |||
| 2/15/00 | S-8 | |||
| List all Filings | ||||