In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
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Question: Exhibit 10.1

INTELLECTUAL PROPERTY AGREEMENT

THIS INTELLECTUAL PROPERTY AGREEMENT (this IP Agreement) is entered into as of April 14, 2014 (the Effective Date), by and between Motorola Solutions, Inc., a Delaware corporation (the Seller), and Zebra Technologies Corporation, a Delaware corporation (the Purchaser).

RECITALS

WHEREAS, the Seller, directly and through certain of its Affiliates, is engaged in the Business;

WHEREAS, the Seller desires to sell and transfer to the Purchaser, and the Purchaser desires to acquire from the Seller, the Business, and in furtherance thereof, at each applicable Closing, the Seller will sell and assign, and will cause the other members of the Seller Group to sell and assign, to the Purchaser Group, and the Purchaser will purchase and assume, and will cause the other members of the Purchaser Group to purchase and assume, from the Seller Group, certain of the assets and liabilities of the Business, including all of the capital stock of the Acquired Companies, all on terms and conditions set forth in that certain Master Acquisition Agreement of even date herewith (the Acquisition Agreement);

WHEREAS, certain assets owned, developed, or used by the Seller Parties in connection with the Business constitute Intellectual Property (as defined below);

WHEREAS, as part of the Purchaser's acquisition of the Business, the Seller intends to assign to the Purchaser Assignees certain of such Intellectual Property and to license the Purchaser Licensees to use certain of such Intellectual Property, in each case pursuant to the terms and conditions set forth herein; and

WHEREAS, as part of such acquisition, the Purchaser Assignees and Acquired Companies intend to license the Seller Parties to use certain of such assigned Intellectual Property and certain other Intellectual Property owned by the Acquired Companies.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual representations, warranties and covenants set forth in this IP Agreement and the other Transaction Agreements, and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree as follows:

ARTICLE I DEFINITIONS

Section 1.1 Definitions. For the purposes of this IP Agreement, the following terms have the meanings set forth below. Capitalized terms used in this IP Agreement but not otherwise defined herein have the meanings ascribed to them in the Acquisition Agreement.

(a) Acquired Company IP means all Intellectual Property owned by, as of the Initial Closing Date, any of the Acquired Companies, including the Acquired Company Patents and the Acquired Company Trademarks, but for the avoidance of doubt, excluding any Assigned IP.





(b) Acquired Company Patents means (i) all of the Patents owned by, as of the Initial Closing Date, any of the Acquired Companies, including those set forth on Schedule 1.1(b) of the Seller IPA Disclosure Schedule, and (ii) any Patents that are based on any invention disclosure that is owned by, as of the Initial Closing Date, any of the Acquired Companies, but for the avoidance of doubt, excluding any Assigned IP.

(c) Acquired Company Trademarks means all of the Trademarks owned by, as of the Initial Closing Date, any of the Acquired Companies, including those set forth on Schedule 1.1(c) of the Seller IPA Disclosure Schedule, but for the avoidance of doubt, excluding any Assigned IP.

(d) Acquisition Agreement has the meaning ascribed to it in the recitals.

(e) Additional Patents has the meaning ascribed to it in Section 2.1(b)(iii)(F).

(f) Ancillary IP Rights means, with respect to any Intellectual Property, any and all of the following in any jurisdiction throughout the world: (i) rights to pursue and collect damages, costs, injunctive relief and other remedies for past, current or future infringement, misappropriation, or conflict with such Intellectual Property; and (ii) royalties, fees, income and other payments and proceeds due or accrued as of the Initial Closing Date and thereafter under or arising from such Intellectual Property.

(g) Assigned Copyright Materials means all of the copyrightable or copyrighted materials owned by any Seller Party as of the Initial Closing Date that were created by a Business Employee, including the materials set forth on Schedule 1.1(g); provided that, for the avoidance of doubt, the Assigned Copyright Materials do not include any copyrightable or copyrighted material that is Software.

(h) Assigned Copyrights means all of the (i) Copyright registrations and unregistered Copyrights owned by of any Seller Party as of the Initial Closing Date that are for the Assigned Copyright Materials or the Assigned Software, and (ii) other Copyrights owned by any Seller Party as of the Initial Closing Date that were created by a Business Employee, including the Copyrights set forth on Schedule 1.1(h) of the Seller IPA Disclosure Schedule; provided that, for the avoidance of doubt, the Assigned Copyrights do not include any copyright registrations or unregistered copyrights for Software other than Assigned Software.

(i) Assigned IP means: (i) Assigned Copyrights, Assigned Copyright Materials, Assigned Patents, Assigned Know-How, Assigned Software, Assigned Trademarks, and Assigned Other IP; and (ii) any other Intellectual Property that is owned by any Seller Party as of the Initial Closing Date and that (a) is Formerly Owned by the Business, or (b) is or was used exclusively in connection with the Business on or prior to the Initial Closing Date.

(j) Assigned Know-How means all of the Know-How owned by any Seller Party as of the Initial Closing Date that was created by a Business Employee, including the Know-How set forth on Schedule 1.1(j).   2





(k) Assigned Other IP means all of the Intellectual Property (other than Copyrights, Know-How, Patents, and Software), if any, owned by any Seller Party as of the Initial Closing Date that was created by a Business Employee, including the Trademarks and other Intellectual Property set forth on Schedule 1.1(k)(i), but for the avoidance of doubt, excluding the Trademarks set forth on Schedule 1.1(k)(ii).

(l) Assigned Patents means (i) all of the Patents owned by any Seller Party as of the Initial Closing Date that are set forth on Schedule 1.1(l) of the Seller IPA Disclosure Schedule, and (ii) any Patents that are based on any invention disclosure that is owned by any Seller Party as of the Initial Closing Date and that is assigned to any of the Purchaser Assignees.

(m) Assigned Software means all of the Software owned by any Seller Party as of the Initial Closing Date that was created by a Business Employee, including the Software set forth on Schedule 1.1(m); provided that, for the avoidance of doubt, the Assigned Software does not include any rights under any Licensed Patents that cover Software.

(n) Assigned Trademarks means all of the Trademarks owned by any Seller Party as of the Initial Closing Date that are exclusively used in connection with the Business on the Initial Closing Date, including the Trademarks set forth on Schedule 1.1(n) of the Seller IPA Disclosure Schedule.

(o) Intentionally Omitted.

(p) Business Employee means any current or former employee or independent contractor of any Seller Party or any Acquired Company who, at the time of creation of Intellectual Property, was performing work for the Business and created such Intellectual Property for the Business in connection with the performance of such work.

(q) Buyer has the meaning ascribed to it in Section 6.3.

(r) Change of Control Event has the meaning ascribed to it in Section 6.3.

(s) Copyrights has the meaning ascribed to it in the definition of Intellectual Property.

(t) Derivative Works (i) with respect to copyrightable works shall have the meaning set forth in the U.S. Copyright Act, 17 U.S.C. §101, et seq. (including translation into other computer language and any other form in which an existing work may be recast, transformed or adapted which would constitute a derivative work under the U.S. Copyright Act, 17 U.S.C. §101), and (ii) with respect to Know-How, it shall also mean any material derived from such Know-How.

(u) Enterprise Data Capture Products means (i) bar code scanner products for reading machine-readable symbols (including fixed, handheld, portable, wearable, and vehicle-mounted laser scanners and linear and area imagers), (ii) radio frequency identification (RFID) reader products used to communicate with RFID tags (including portal RFID readers, doorway, forklift, crane and delivery-door RFID readers, handheld RFID readers, and fixed, vehicle-mounted, wearable, portable, hands-free and mobile RFID readers), or (iii) associated   3





accessories and Software, in each case, to the extent such products are the same as those (a) offered by the Enterprise Segment on or prior to the Initial Closing Date or (b) under development by the Enterprise Segment on the Initial Closing Date.

(v) Enterprise Mobile Computing Products means durable or rugged enterprise-grade fixed, handheld, wearable, vehicle-mounted, or portable computing or smartphone products, which products shall include handheld and portable mobile computers, gun handle mobile computers, tablet computers, vehicle-mounted computers and wearable computers, in each case, to the extent such products are the same as those (i) offered by the Enterprise Segment on or prior to the Initial Closing Date, or (ii) under development by the Enterprise Segment on the Initial Closing Date.

(w) Enterprise Products means (i) Enterprise Data Capture Products, (ii) Enterprise Mobile Computing Products, or (iii) Enterprise Wireless LAN Products.

(x) Enterprise Segment means the Enterprise reporting segment as reflected in the Seller Financial Statements except to the extent they include Integrated Digital Enhanced (iDEN) protocol network infrastructure products and related Software and services.

(y) Enterprise Wireless LAN Products means products that provide connectivity to wireless products within a local area network (whether indoors or outdoors) and that operate in compliance with the IEEE 802.11 standard (which products shall include types of products that are wireless local area network (LAN) products, including (i) wireless access points and ports compliant with the IEEE 802.11 standard, (ii) wireless controllers compliant with the IEEE 802.11 standard, (iii) wireless switches designed for use with the foregoing wireless access points, ports and controllers, and (iv) related LAN accessories and Software), in each case, to the extent such products are the same as those (a) offered by the Enterprise Segment on or prior to the Initial Closing Date, or (b) under development by the Enterprise Segment on the Initial Closing Date.

(z) Excluded Field Products means any product to the extent it was designed, developed, or manufactured for use in conjunction with or for interoperability with a (i) Public Safety Next-Gen LTE Network or (ii) Two-Way Radio Network.

(aa) Excluded Infrastructure Equipment means (i) (a) government, public safety or defense communications network infrastructure equipment and systems, or (b) professional and commercial communications network infrastructure equipment and systems, in each case of clauses (a) and (b), to the extent designed, developed, or manufactured to operate with Excluded Mobile Radio Products, or (ii) network infrastructure equipment to the extent designed, developed, or manufactured to operate with a Public Safety Next-Gen LTE Network and on the frequency band allocated to the Public Safety Community.

(bb) Excluded Mobile Radio Products means any product (including any government, public safety and defense, professional, and commercial product): (i) to the extent that such product has a primary communication mode of Push-to-Talk and contains a transceiver that operates: (a) in a frequency band that is allocated for land mobile radio users; and (b) in compliance with any Two-Way Radio Standard; or (ii) to the extent that such product contains a transceiver that operates in compliance with the Integrated Digital Enhanced (iDEN) protocol.   4





(cc) Excluded Software and Solutions means (i) a command and control solution (hardware and Software) to the extent that it is designed, developed, or manufactured primarily for use by the Public Safety Community or Government Entities, or (ii) Software to the extent designed primarily to operate Excluded Mobile Radio Products or Excluded Infrastructure Equipment.

(dd) Existing Stock has the meaning ascribed to it in Section 2.2(d).

(ee) Formerly Owned by the Business means, with respect to any type of Intellectual Property, any item of such Intellectual Property that (i) is owned by any Seller Party as of the Initial Closing Date and (ii) was at any time prior to the Initial Closing Date owned by any Acquired Company in any form, e.g., an invention owned by an Acquired Company prior to the Initial Closing Date for which a patent or patent application is owned by a Seller Party as of the Initial Closing Date.

(ff) Future Acquisition has the meaning ascribed to it in Section 6.4.

(gg) Group means (i) with respect to the Seller, the Seller Group, and (ii) with respect to the Purchaser, the Purchaser Group.

(hh) In-bound Licenses has the meaning ascribed to it in Section 3.4.

(ii) Incorporated Into means, with respect to a product, embedded in, used in, incorporated into, combined with, linked with, distributed with, provided as a service with or made available with such product, including any Object Code that is referenced or required to be present or available (e.g., available via another machine connected directly or through a network) in such product for such product to properly function in accordance with its specifications.

(jj) Insolvent Party has the meaning ascribed to it in Section 4.5.

(kk) Intellectual Property means any and all of the following in any jurisdiction throughout the world: (i) patents, patent applications, industrial design rights (including utility model rights, design rights, and industrial property rights), registrations and applications for registration of industrial design rights, patents of importation/confirmation, statutory invention registrations, and certificates of invention and like statutory right, all counterparts, continuations, divisions, continuations-in-part, revisions, extensions, supplementary certificates, substitutions, reexaminations, renewals, and reissuances of any of the foregoing and any patent or patent application that claims priority to any of the foregoing (collectively, Patents); (ii) Trademarks; (iii) copyright registrations and applications, and unregistered copyrights, published and unpublished works of authorship, and Mask Works, together with all applications, registrations, and renewals in connection therewith, and all common-law rights to any of the foregoing (collectively, Copyrights); (iv) computer programs, whether embodied in software, firmware or otherwise, including, software compilations, software implementations of algorithms, software tool sets, compilers, and software models and methodologies (whether in Source Code or Object Code form), and (C) translation, ported   5





versions and modifications of any of the foregoing (collectively, Software); (v) trade secrets, know-how, inventions, invention disclosures, and other confidential or proprietary information (collectively, Know-How); and (vi) all other intellectual property rights or industrial property rights.

(ll) Invention Disclosure Review List has the meaning ascribed to it in Section 2.1(b)(iii)(A).

(mm) Invention Disclosure Review Team means Paul Steinberg and Bob Sanders (or their replacements or proxies, as applicable, as determined by their respective then-current employer).

(nn) IP Agreement has the meaning ascribed to it in the preamble.

(oo) Know-How has the meaning ascribed to it in the definition of Intellectual Property.

(pp) LAN has the meaning ascribed to it in the definition of Enterprise Wireless LAN Products.

(qq) Licensable means, with respect to Intellectual Property, that (i) such Intellectual Property is owned by a third Person (other than a Seller Party), and (ii) as of the Initial Closing Date, a Seller Party has (to the extent which and for such time that a Seller Party has) a right to grant to any Purchaser Licensee the licenses, sublicenses, or related rights to such Intellectual Property as set forth in this IP Agreement without the payment of royalties or other consideration to third Persons (except for payments for which the Purchaser agrees to reimburse the Seller or payments to any third Person: (A) for inventions made by such third Person while engaged by any Seller Party; and (B) as consideration for the acquisition of such Intellectual Property) and without obtaining the consent of any third Person (except where such consent has already been granted).

(rr) Licensed Copyright Materials means all of the copyrighted and copyrightable materials owned or Licensable by any Seller Party as of the Initial Closing Date that are or have been, on or prior to the Initial Closing Date, (i) used in connection with the Business, (ii) used in connection with the development of any product, service, or system in the Business, or (iii) incorporated into any product, service, or system in the Business; provided, that, for the avoidance of doubt, the Licensed Copyright Materials do not include (A) the Assigned Copyright Materials, (B) works authored after, or acquired by any Seller Party after, the Initial Closing Date, or (C) Software.

(ss) Licensed Copyrights means: (i) all of the copyright registrations and unregistered copyrights owned or Licensable by any Seller Party as of the Initial Closing Date that are for the Licensed Copyright Materials or the Licensed Software; and (ii) all other Copyrights that are owned or Licensable by any Seller Party as of the Initial Closing Date that are or have been, on or prior to the Initial Closing Date, (A) used in connection with the Business, (B) used in connection with the development of any product, service, or system in the Business, or (C) incorporated into any product, service, or system in the Business; provided that, for the avoidance of doubt, the Licensed Copyrights do not include the Assigned Copyrights or   6





any copyright registrations or unregistered copyrights that are for (I) copyrightable works authored after, or acquired by any Seller Party after, the Initial Closing Date or (II) Software (other than the Licensed Software).

(tt) Licensed IP means the Licensed Copyrights, Licensed Copyright Materials, Licensed Know-How, Licensed Patents, Licensed Software, Licensed Trademarks, Mobility Trademarks, Non-Mobility Trademarks, and Licensed Other IP.

(uu) Licensed Know-How means all of the Know-How owned or Licensable by any Seller Party as of the Initial Closing Date that is or has been, on or prior to the Initial Closing Date, (i) used in connection with the Business, (ii) used in connection with the development of any product, service, or system in the Business, or (iii) incorporated into any product, service, or system in the Business; provided that, for the avoidance of doubt, the Licensed Know-How does not include (A) the Assigned Know-How, or (B) any Know-How that is developed or acquired by any Seller Party after the Initial Closing Date.

(vv) Licensed Other IP means all of the Intellectual Property (other than the Licensed Copyrights, Licensed Patents, Licensed Copyright Materials, Licensed Know-How, Licensed Software, and Trademarks), if any, owned or Licensable by any Seller Party as of the Initial Closing Date that is or has been, on or prior to the Initial Closing Date, (i) used in connection with the Business, (ii) used in connection with the development of any product, service, or system in the Business, or (iii) incorporated into any product, service, or system in the Business; provided that, for the avoidance of doubt, the Licensed Other IP does not include the Assigned Other IP.

(ww) Licensed Patents means all of the Patents (i) owned by any Seller Party as of the Initial Closing Date or that are based on an invention disclosure owned by any Seller Party as of the Initial Closing Date, or (ii) Licensable by any Seller Party as of the Initial Closing Date; provided that, for the avoidance of doubt, the Licensed Patents do not include the Assigned Patents.

(xx) Licensed Software means the Software owned or Licensable by any Seller Party as of the Initial Closing Date that is or has been, on or prior to the Initial Closing Date, (i) used in connection with the Business, (ii) used in connection with the development of any product, service, or system in the Business, or (iii) incorporated into any product, service, or system in the Business; provided that, for the avoidance of doubt, the Licensed Software does not include (I) the Assigned Software, (II) Software developed or acquired by any Seller Party after the Initial Closing Date, or (C) Seller Group Software specifically licensed to the Purchaser Group under another Transaction Agreement.

(yy) Licensed Trademarks means the Trademarks set forth on Schedule 1.1(yy); provided that, for the avoidance of doubt, the Licensed Trademarks do not include the Assigned Trademarks, the Mobility Trademarks, or the Non-Mobility Trademarks.

(zz) LTE means the Long Term Evolution (LTE) or Long Term Evolution Advanced (LTE-A) fourth generation (4G) broadband communications standards, including various derivations thereof that do not fundamentally alter the character thereof (e.g., wireless air-interface, framing structure, control, call set-up and connection management).   7





(aaa) Mask Work means: (i) any mask work, registered or unregistered, as defined in 17 U.S.C. §901; (ii) all registrations and applications to register the foregoing anywhere in the world; (iii) all foreign counterparts and analogous rights anywhere in the world (including semiconductor topography rights); and (iv) all rights in and to any of the foregoing.

(bbb) Material IP Contracts has the meaning ascribed to it in Section 3.4.

(ccc) Mobility Intellectual Property License means that certain Amended and Restated Intellectual Property License Agreement, by and between Motorola Mobility, Inc. and Motorola, Inc., effective as of July 31, 2010.

(ddd) Mobility Trademark License means that certain Amended and Restated Exclusive License Agreement, by and between Motorola Trademark Holdings, LLC and Motorola, Inc., effective as of July 30, 2010.

(eee) Mobility Trademarks means any Trademarks licensed to any Seller Party or any Acquired Company pursuant to the Mobility Trademark License that are, as of the Initial Closing Date, used in connection with the Business or any product, service, or system in the Business.

(fff) Mobility Transition Period has the meaning ascribed to it in Section 2.2(d)(i)(A).

(ggg) New Business Employee has the meaning ascribed to it in Section 2.1(b)(iii)(D).

(hhh) Non-Mobility Trademarks has the meaning ascribed to it in Section 2.2(d)(i)(B).

(iii) Non-Mobility Transition Period has the meaning ascribed to it in Section 2.2(d)(i)(B).

(jjj) Object Code means one or more computer instructions in machine readable form (whether or not packaged in directly executable form), including any such instructions that are readable in a virtual machine, whether or not derived from Source Code, together with any partially compiled or intermediate code that may result from the compilation, assembly or interpretation of any Source Code. Object Code includes firmware, compiled or interpreted programmable logic, libraries, objects, bytecode, machine code, and middleware.

(kkk) Off-the-Shelf Software Licenses means licenses in respect of commercially available, unmodified, off-the-shelf Software used by any of the Seller Entities solely for its own internal use with respect to the Business.

(lll) Open Source Software means any Software that is subject to any license that is, or is substantially similar to, a license approved by the Open Source Initiative and listed   8





at http://www.opensource.org/licenses as of the Initial Closing Date, which licenses include all versions of the GNU General Public License (GPL), the Lesser GNU Public License (LGPL), the GNU Affero GPL, the MIT License, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License, the Academic Free License, the BSD License and the Apache License, or any Reciprocal License.

(mmm) Out-bound Licenses has the meaning ascribed to it in Section 3.4.

(nnn) Outstanding Patents has the meaning ascribed to it in Section 2.1(b)(iii)(F).

(ooo) Patent Review List has the meaning ascribed to it in Section 2.1(b)(iii)(A).

(ppp) Patents has the meaning ascribed to it in the definition of Intellectual Property.

(qqq) Permitted Type of Enterprise Mobile Computing Product means a Type of Enterprise Mobile Computing Product that: (i) (a) is a component used in a solution, (b) interoperates with one or more Purchaser Excluded Products in such solution, and (c) is designed primarily for such use and interoperation; (ii) is a standalone product that is designed primarily for use by the Public Safety Community or Governmental Entities; or (iii) is a Purchaser Excluded Product that is designed primarily (A) for use by the Public Safety Community or Governmental Entities, (B) to operate in compliance with the Integrated Digital Enhanced (iDEN) protocol, or (C) to operate in compliance with any Two-Way Radio Standard.

(rrr) product means device or product.

(sss) Public Safety LTE Smartphone Devices means any fixed, handheld, vehicle-mounted, wearable, or portable wireless product that is compliant with LTE and is designed primarily for use by either the Public Safety Community or Governmental Entities.

(ttt) Public Safety Next-Gen LTE Network means a network that is based upon LTE and operates on a frequency band allocated to the Public Safety Community.

(uuu) Purchaser has the meaning ascribed to it in the preamble.

(vvv) Purchaser Assignees means one or more Persons designated, on or prior to the Initial Closing Date, by Purchaser to Seller.

(www) Purchaser Excluded Products means (i) Excluded Infrastructure Equipment, (ii) Excluded Mobile Radio Products, (iii) Excluded Software and Solutions, or (iv) Excluded Field Products.

(xxx) Purchaser Licensees means each (for the avoidance of doubt, and without limiting any other provision of this IP Agreement, current or future) Affiliate of the Purchaser (including the Acquired Companies).   9





(yyy) Push-to-Talk (PTT) means a method of transmitting voice or data communications on simplex and half-duplex channels that uses a momentary button to switch from voice or data reception mode to transmit mode.

(zzz) Reciprocal License means a license of an item of Software that requires or conditions any rights granted in such license upon: (i) the disclosure, licensing or distribution of other Software (whether or not in Source Code form); (ii) a requirement that any other licensee of the Software be permitted to modify, make Derivative Works of, or reverse-engineer any such other Software; (iii) a requirement that such other Software be redistributable by other licensees; (iv) the grant of any patent rights including non-assertion or patent license obligations; or (v) the imposition of any other material limitation, restriction, or condition on any Seller Entity's right to use or distribute other Software in connection with the Business (other than a requirement to include an acknowledgement of authorship of such item of Software or to distribute a copy of the terms and conditions of the applicable license agreement with respect to such Software).

(aaaa) Registered Intellectual Property has the meaning ascribed to it in Section 3.1.

(bbbb) Retained Seller Trademarks means any and all Trademarks owned or used by any Seller Party on or prior to the Initial Closing Date or at any time thereafter (but excluding, for the avoidance of doubt, any Trademarks that constitute an Acquired Asset).

(cccc) Review Patent has the meaning ascribed to it in Section 2.1(b)(iii).

(dddd) Review Period means the period of time on or prior to the one year anniversary of the Initial Closing Date.

(eeee) RFID has the meaning ascribed to it in Enterprise Data Capture Products.

(ffff) SDO means a patent pool, official or de facto standards setting or development organization, industry standards body industry, trade association or other similar organization.

(gggg) SDO Member means any Person that is or has ever been, directly or indirectly, (i) a member or promoter of, or a contributor to or a participant in, any SDO, (ii) obligated to license or disclose any Intellectual Property to, or made any commitments or agreements regarding, any SDO, or (iii) a participant in the writing, preparing, amending, revising, sponsoring, organizing, promulgating, setting, or approving of any specifications, standards, requirements, or guidelines related to the Business.

(hhhh) Section 365 has the meaning ascribed to it in Section 4.5.

(iiii) Section 365(n) has the meaning ascribed to it in Section 4.5.

(jjjj) Seller has the meaning ascribed to it in the preamble.   10





(kkkk) Seller Business means, collectively, the businesses of each member of the Seller Parties as of the Initial Closing Date, but excluding the Business.

(llll) Seller Entity means each Acquired Company and each Seller Party.

(mmmm) Seller Excluded Products means a (i) Type of Enterprise Data Capture Product, (ii) Type of Enterprise Mobile Computing Product, or (iii) Type of Enterprise Wireless LAN Product.

(nnnn) Seller IP means any and all Intellectual Property owned by any Seller Party prior to the Initial Closing Date or at any time thereafter.

(oooo) Seller IPA Disclosure Schedule has the meaning ascribed to it in Article III.

(pppp) Seller Licensed Activities has the meaning ascribed to it in Section 2.1(d).

(qqqq) Seller Party means Seller and each of its Affiliates (but, for the avoidance of doubt, excluding the Acquired Companies).

(rrrr) Shared Review Invention Disclosure has the meaning ascribed to it in Section 2.1(b)(iii)(C).

(ssss) Shared Review Patent has the meaning ascribed to it in Section 2.1(b)(iii)(B).

(tttt) Smart Sensing Network Equipment means any sensing equipment for use in conjunction with or interoperable with a distributed network of sensors intended to measure or ascertain data, including video, imaging, RFID, audio, temperature, and data measurements.

(uuuu) Software has the meaning ascribed to it in the definition of Intellectual Property.

(vvvv) Source Code means one or more statements in human readable form, including comments, definitions and annotations, which are generally formed and organized to the syntax of a computer or programmable logic programming language (including such statements in batch or scripting languages and including hardware definition languages such as VHDL), together with any and all text, data and data structures, diagrams, manuals, instructions, procedures, and other information that describe the foregoing.

(wwww) Third-Party Intellectual Property means any and all Intellectual Property licensed to any Seller Party from, or otherwise owned by, a Person other than a Seller Party (including open source Software, freeware or other publicly available Software).

(xxxx) Trademarks means (i) trademarks, service marks, logos, product numbers, trade dress, trade names, corporate names and Internet domain names, slogans, and   11





other indicia of commercial source or origin (whether registered, common law, statutory, or otherwise, and together with all translations thereof), (ii) all registrations and applications to register the foregoing anywhere in the world (including all renewals in connection therewith), and (iii) all goodwill symbolized by any of the foregoing clauses (i) and (ii).

(yyyy) Transferred IP means the Assigned IP and the Acquired Company IP.

(zzzz) Transferred IP Docket has the meaning ascribed to it in Section 2.3(a).

(aaaaa) Two-Way Radio Network means a wireless network (whether implemented in hardware or Software) capable of enabling, managing, supervising, or securing a communication of voice, data, or multimedia information in compliance with any one or more of the Two-Way Radio Standards.

(bbbbb) Two-Way Radio Standards means (i) any of the following standards: (A) Association of Public-Safety Communications Officials Project 25 (including Digital APCO P25), (B) European Telecommunications Standards Institute Terrestrial Trunked Radio (including TETRA), (C) European Telecommunications Standards Institute Digital Mobile Radio (including TETRAPOL), (D) European Telecommunications Standards Institute Digital Private Mobile Radio, (E) MotoTalk, (F) General Mobile Radio Service, (G) Family Radio Service, (H) Analog MDC-1200, (I) Analog Conventional, (J) Private Mobile Radio (PMR), Logic Trunked Radio (LTR), MPT 1327 / MPS 1327, Selcall (5-Tone), and NXDN, (K) Dogota, Mobile Radio (DMR), digital Private Mobile Radio (dPMR), and Police Digital Trunking (PDT), (L) Global Open Trunked Architecture (GoTa), (M) ARIB standards T-98 and T-102 (also known as DCR for Japan), (N) China specific protocol (PDMS/CDMR), (O) Enhanced Digital Access Communication System (EDACS), (P) OpenSky and GSM-R (Railway variant of GSM for Two-Way Radio), and (Q) Project 25 Conventional TDMA and China specific protocols (PDMR-T, PDMR-F); and (ii) various derivations thereof that do not fundamentally alter the character thereof. For the avoidance of doubt, Two-Way Radio Standards do not include Wireless Standards.

(ccccc) Type of Enterprise Data Capture Product means (i) bar code scanner products for reading machine-readable symbols (including fixed, handheld, portable, wearable, and vehicle-mounted laser scanners and linear and area imagers), (ii) RFID reader products used to communicate with RFID tags (including portal RFID readers, doorway, forklift, crane and delivery-door RFID readers, handheld RFID readers, and fixed, vehicle-mounted, wearable, portable, hands-free and mobile RFID readers), or (iii) associated accessories and Software.

(ddddd) Type of Enterprise Mobile Computing Product means durable or rugged enterprise-grade fixed, handheld, wearable, vehicle- mounted, or portable computing or smartphone products, which products shall include handheld and portable mobile computers, gun handle mobile computers, tablet computers, vehicle mounted computers and wearable computers.

(eeeee) Type of Enterprise Wireless LAN Product means products that provide connectivity to wireless products within a local area network (whether indoors or outdoors) and that operate in compliance with the IEEE 802.11 standard (which products shall include types of   12





products that are wireless LAN products, including (i) wireless access points and ports compliant with the IEEE 802.11 standard, (ii) wireless controllers compliant with the IEEE 802.11 standard, (iii) wireless switches designed for use with the foregoing wireless access points, ports and controllers, and (iv) related LAN accessories and Software).

(fffff) Wireless Standards means: (i) all cellular communication technical specifications adopted as a standard by either an SDO or a major operator of public subscription systems for in-country requirements (e.g., frequency spectrum availability, interconnection with preexisting telephony networks, etc.), as well as various adjunct protocols to the extent incorporated into such standards, including those technical specifications for digital radiotelephone service (A) promulgated by ETSI and presently known as the GSM, Pan-European Digital Cellular radiotelephone service (including Personal Communications Network services, presently known as DCS1800 and in the United States PCS1900), (B) promulgated in the United States by the Telecommunications Industry Association / Electronic Industries Associates (TIA/EIA) and presently known as AMPS (Advanced Mobile Phone System), NAMPS (Narrowband AMPS), TDMA Cellular/PCS - Radio Interface Interim Standards IS-I36, IS-137 or IS-138 (including IS-54, IS-55 and IS-56 and PCS 1900 standards JSTD-009, JSTD-010 and JSTD-011), (C) promulgated by ARIB (formerly RCR) and presently known as PDC (Personal Digital Cellular), (D) promulgated by the TIA and presently known as IS-95, IS-95B, RTT MC 1X, 1X Plus, and 1Xtreme Code Division Multiple Access services, (E) presently known as third generation (3G) cellular standards currently under development and known by such designations, including 3GPP, UMTS, WCDMA, 3GPP2, and CDMA2000, or (F) presently known as LTE; (ii) all technical specifications promulgated or currently under development by any of (A) IEEE and presently known as IEEE 802.11/WiFi or 802.15/WPAN standards, (B) EPCGlobal and presently known as EPC Radio Frequency Identity Protocols, (C) ISO/IEC 18000, 13157, 21481, 14443, or 15693, and presently known as RFID or NFC, or (D) Bluetooth; (iii) various derivations of the specifications and protocols referenced in clauses (i) and (ii) that do not fundamentally alter the character of such specifications and protocols (e.g., wireless air-interface, framing structure, control, call set-up and connection management); and (iv) any and all international versions of the specifications and protocols referenced in clauses (i) through (iii).

Section 1.2 Construction. Section 11.10 of the Acquisition Agreement shall apply mutatis mutandis to this IP Agreement.

ARTICLE II ASSIGNMENTS AND LICENSES

Section 2.1 Transferred IP.

(a) Acquired Company IP. For the avoidance of doubt, the Purchaser Group will acquire all Acquired Company IP by virtue of the acquisition by the Purchaser Group of the Acquired Company Shares pursuant to the terms of the Acquisition Agreement.   13





(b) Assignment of Assigned IP.

(i) Assignment. Effective as of the applicable Closing Date, the Seller hereby sells, assigns, transfers, conveys and delivers all of its right, title, and interest in and to the Assigned IP (together with the goodwill of the business symbolized by any Trademarks that constitute Assigned IP) and all Ancillary IP Rights with respect thereto, and shall cause the other Seller Parties to do the same, to the Purchaser Assignees and, effective as of the applicable Closing Date, the Purchaser Assignees hereby purchase, acquire and accept the same from the Seller Parties. The Seller hereby waives (and shall cause the other Seller Parties to waive) any moral rights, including rights of attribution, integrity, and disclosure, arising from all or any part of any Copyrights that constitute Assigned IP, together with all claims for damages and other remedies asserted on the basis of moral rights, and hereby sells, assigns, transfers, conveys, and delivers (and shall cause the other Seller Parties to do the same) to the Purchaser Assignees any waivers granted to any Seller Party of any such moral rights.

(ii) Mandatory Laws. If and to the extent that, as a matter of Law in any jurisdiction, ownership, title, or any rights or interest in or to any of the Assigned IP cannot be assigned as provided in Section 2.1(b)(i), (A) the Seller irrevocably agrees to (and shall cause the other Seller Parties to) assign and transfer, and the Seller hereby assigns and transfers (and shall cause the other Seller Parties to assign and transfer) to the Purchaser Assignees all rights (including all economic and commercialization rights) that can be assigned pursuant to Section 2.1(b)(i) to the fullest extent permissible, and (B) the Seller hereby grants to the Purchaser Assignees, and hereby agrees to cause the other Seller Parties to grant to the Purchaser Assignees, an unlimited, exclusive, irrevocable, assignable, transferable, sublicenseable, worldwide, perpetual, royalty-free, fully-paid up license to use, exploit, and commercialize in any manner now known or in the future discovered and for whatever purpose, any and all rights to Assigned IP that cannot be assigned as contemplated by Section 2.1(b)(i).

(iii) Patent Review Process.

(A) Information Exchange. Within forty-five (45) days after the Effective Date, Seller shall provide (I) to the Purchaser, an updated list of all Patents (other than those set forth on Schedule 1.1(l) of the Seller IPA Disclosure Schedule) owned by any Seller Party that (x) have an effective filing date or are based on an invention disclosure having a date of disclosure that is on or after January 9, 2007, and (y) that name as inventors, in Seller's reasonable, good-faith belief, one or more Business Employees and one or more Persons that are not Business Employees (the Patent Review List), and (II) to the Invention Disclosure Review Team, a list of invention disclosures (other than those set forth on Schedule 1.1(l) of the Seller IPA Disclosure Schedule or Schedule 1.1(j)) owned by any Seller Party that name as contributors one or more Business Employees   14





and one or more Persons that are not Business Employees (which list shall include the contributors, the title thereof, and the location code therefor) (the Invention Disclosure Review List). The Patent Review List shall include the Patents set forth on Schedule 2.1(b)(iii)(A).

(B) Patent Review and Ownership. The parties shall promptly review the Patent Review List and, in good-faith, discuss and negotiate during the Review Period whether any of the Patents listed on such Patent Review List (each, a Shared Review Patent) should be or should have been, as applicable, an Assigned Patent, based upon the general guideline and principle that Shared Review Patents that are primarily paid for, primarily used by, or primarily arising out of, or for which associated costs and fees were primarily allocated to, the Business or any Acquired Company (as compared with the Seller Business) should be or should have been, as applicable, Assigned Patents. Seller shall provide to Purchaser, upon Purchaser's reasonable request during the Review Period, information regarding such Patent Review List, the Patents listed thereon, and each such determination. If the parties agree, during the Review Period, that a Shared Review Patent should be or should have been, as applicable, an Assigned Patent, then, if such agreement was reached on or prior to the Initial Closing Date, the parties shall add such Shared Review Patent to Schedule 1.1(l) of the Seller IPA Disclosure Schedule and, if such agreement was reached after the Initial Closing Date, Seller shall (and shall cause the other Seller Parties to) promptly execute a Contract containing a present grant of assignment (or, if and to the extent, as a matter of Law in any jurisdiction, ownership, title, or any rights or interest in or to any such Shared Review Patent cannot be so assigned, a license) of such Shared Review Patent to the Purchaser Assignees, consistent with the terms and conditions of Section 2.1(b)(i) or Section 2.1(b)(ii), as applicable. If the parties cannot agree on whether any Shared Review Patent should be or should have been, as applicable, an Assigned Patent, the parties shall, during the Review Period, escalate such dispute to successively more senior-levels of executives and shall each make sure each such senior executive is promptly available to speak with (including by telephone) his or her counterpart.

(C) Invention Disclosure Review and Ownership. During the Review Period, within seventy-five (75) days after the Effective Date (or, in the event of any repeat of the process set forth in this Section 2.1(b)(iii)(C) in accordance with Section 2.1(b)(iii)(D), promptly (and no later than seventy-five (75) days) thereafter), Seller shall cause (on and prior to the Initial Closing Date), or the parties shall each cause (following the Initial Closing Date), as applicable, their respective employees on the Invention Disclosure Review Team to: (I) promptly review the Invention Disclosure Review List; (II) in good-faith determine whether any of the invention disclosures (and inventions listed on the Invention Disclosure Review List (and inventions described therein))   15





(each, a Shared Review Invention Disclosure) should be or should have been, as applicable, Assigned Know-How, based upon the general guideline and principle that Shared Review Invention Disclosures that are primarily paid for, primarily used by, or primarily arising out of, or for which associated costs and fees were primarily allocated to, the Business or any Acquired Company (as compared with the Seller Business) should be Assigned Know-How; and (III) provide to Purchaser the applicable Invention Disclosure Review List and such determinations of the Invention Disclosure Review Team with respect to such Invention Disclosure Review List.

Seller shall provide to Purchaser, upon Purchaser's reasonable request during the Review Period, information regarding such Invention Disclosure Review List, the invention disclosures listed thereon, and each such determination; provided, however, that Seller shall not be required to disclose to Purchaser the content of any Shared Review Invention Disclosure in response to any such request. Upon review of such determinations or information, as applicable, the parties shall promptly jointly review such determinations and information, during the Review Period, and determine, in good faith, whether the Invention Disclosure Review Team should re-review any Shared Review Invention Disclosures on such Invention Disclosure Review List and, if so, the parties shall repeat the process set forth in this Section 2.1(b)(iii)(C) with respect to such Shared Review Invention Disclosures. If the Invention Disclosure Review Team determines, during the Review Period, that a Shared Review Invention Disclosure should be or should have been, as applicable, Assigned Know- How, then, if such agreement was reached on or prior to the Initial Closing Date, the parties shall add such Shared Review Invention Disclosure to Schedule 1.1(j) and, if such agreement was reached after the Initial Closing Date, Seller shall (and shall cause the other Seller Parties to) promptly execute a Contract containing a present grant of assignment (or, if and to the extent, as a matter of Law in any jurisdiction, ownership, title, or any rights or interest in or to any such Shared Review Invention Disclosure cannot be so assigned, a license) of such Shared Review Invention Disclosure to the Purchaser Assignees, consistent with the terms and conditions of Section 2.1(b)(i) or Section 2.1(b)(ii), as applicable.

(D) Newly Identified Business Employee. If, during the Review Period, the Purchaser identifies a Person (New Business Employee) that the Purchaser reasonably believes, in good faith, is or was a Business Employee and (I) such New Business Employee is not named as a contributor on any Shared Review Invention Disclosure on an Invention   16





Disclosure Review List and is not named as an inventor on any Shared Review Patent on a Patent Review List, in each case previously provided to the Purchaser, or (II) Purchaser reasonably believes, in good faith, that Seller has not provided a complete and accurate Invention Disclosure Review List or Patent Review List with respect to any Patents or invention disclosures for which such New Business Employee is named as an inventor or contributor, respectively, then in each case of clauses (I) and (II), the Purchaser may notify Seller of such belief, and Seller shall promptly (but in no event more than thirty (30) days following such notice) provide to the Purchaser or the Invention Disclosure Review Team, as applicable, an updated Patent Review List and Invention Disclosure Review List with respect to such New Business Employee, and the parties shall repeat the process set forth in Section 2.1(b)(iii)(B) and Section 2.1(b)(iii)(C) with respect to such updated Patent Review List and Invention Disclosure Review List, respectively.

(E) Inventors Are All Business Employees. If (i) during the Review Period, Purchaser identifies a Patent or invention disclosure owned by any Seller Party where all of the inventors of such Patent or all of the contributors of such Invention Disclosure, respectively, are Business Employees, and (ii) Purchaser provides to Seller the evidence on which Purchaser is basing such identification, then such Patent or Invention Disclosure shall be an Assigned Patent or Assigned Know-How, as applicable, and the parties shall, where applicable on or prior to the Initial Closing Date, add such Patent or invention disclosure, as applicable, to Schedule 1.1(l) of the Seller IPA Disclosure Schedule or Schedule 1.1(j), as applicable, or, where applicable after the Initial Closing Date, Seller shall (and shall cause the other Seller Parties to) promptly execute a Contract containing a present grant of assignment (or, if and to the extent, as a matter of Law in any jurisdiction, ownership, title, or any rights or interest in or to any such Patent or Invention Disclosure, as applicable, cannot be so assigned, a license) of such Patent or Invention Disclosure, as applicable, to the Purchaser Assignees, consistent with the terms and conditions of Section 2.1(b)(i) or Section 2.1(b)(ii), as applicable.

(F) Arbitration. Attached as Schedule 2.1(b)(iii)(F) is a schedule of additional Patents provided by Seller to Purchaser prior to the Effective Date for review with respect to ownership allocation between the parties pursuant to the general guidelines and principles set forth in Section 2.1(b)(iii)(B) (the Additional Patents). The parties shall promptly, in good- faith, discuss and negotiate whether any of the Additional Patents should be or should have been, as applicable, an Assigned Patent. If any of such Additional Patents are not reviewed, or the parties cannot agree on whether any Additional Patent should be or should have been, as applicable, an Assigned Patent, prior to the Initial Closing Date, then the parties shall escalate such dispute to successively more senior-levels of executives as set forth in Section 2.1(b)(iii)(B). If such senior-levels of executives cannot resolve the dispute with respect to any such Patents (the Outstanding Patents) by the Initial Closing Date, then either party may, within thirty (30) days after the Initial Closing Date,   17





submit such Outstanding Patents for dispute resolution as follows. One or both parties may, within thirty (30) days after the Initial Closing Date, submit the dispute with respect to such Outstanding Patents for arbitration in Chicago, Illinois before a single arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures, as those Rules may be amended by written agreement of the parties. The parties shall cooperate, in good faith, prior to the commencement of any arbitration under this Section 2.1(b)(iii)(F), to agree to any such amendments or other processes with respect to such arbitration (e.g., timing of the arbitration, arbitrator's familiarity with patent law). The parties shall instruct the arbitrator, and the arbitrator shall resolve each dispute regarding the ownership of each Outstanding Patent, based upon the general guideline and principle that such Outstanding Patents that are primarily paid for, primarily used by, or primarily arising out of, or for which associated costs and fees were primarily allocated to, the Business or any Acquired Company (as compared with the Seller Business) should be or should have been, as applicable, Assigned Patents. The parties shall maintain the confidential nature of all information, documents and materials disclosed and statements made in connection with any negotiations or arbitration proceeding, and any arbitration proceeding and the judgment, including any hearing or award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits. The parties shall each bear their respective costs and expenses with respect to any arbitration pursuant to this Section 2.1(b)(iii)(F); provided, however, that the parties shall equally share (on a 50/50 basis) the cost of the arbitrator. If the arbitrator determines that any Outstanding Patent should be or should have been, as applicable, an Assigned Patent, Seller shall (and shall cause the other Seller Parties to) assign such Patent to the Purchaser Assignees in accordance with Section 2.1(b)(iii)(E).

(c) License-Back of Patents. Effective as of the Initial Closing Date, the Purchaser will cause each Acquired Company and each Purchaser Assignee to grant, following each applicable Closing Date, to the Seller Parties, an irrevocable (except as expressly set forth herein), perpetual, non-sublicenseable (except as expressly set forth herein), fully paid-up, royalty-free, worldwide, non-transferable (except as expressly set forth herein), non-exclusive license, under the Acquired Company Patents and Assigned Patents:

(i) (A) to use the Acquired Company Patents and Assigned Patents in the operation of the Seller Business and to practice any methods, processes, and procedures in connection therewith and (B) to make, have made, use, sell, offer for sale, import, and otherwise dispose of products, services, and systems that were designed, developed, manufactured, distributed, offered for sale, sold, resold, supported, otherwise under development, or provided, as of the applicable Closing Date, by the Seller Parties in connection with the Seller Business and to practice any methods, processes, and procedures in connection therewith, and in each case of clauses (A) and (B), including with respect to all Derivative Works and natural evolutions thereof;   18





(ii) to make, have made, use, sell, offer for sale, import, and otherwise dispose of Smart Sensing Network Equipment; and

(iii) to make, have made, use, sell, offer for sale, import, and otherwise dispose of Public Safety LTE Smartphone Devices.

(d) License-Back of Non-Patent, Non-Trademark IP. Effective as of the Initial Closing Date, the Purchaser will cause each Acquired Company and each Purchaser Assignee to grant, following each applicable Closing Date, to the Seller Parties, an irrevocable (except as expressly set forth herein), non-sublicenseable (except as expressly set forth herein), perpetual, fully paid-up, royalty-free, worldwide, non-transferable (except as expressly set forth herein), non-exclusive license, under the Transferred IP (other than Trademarks and Patents) that is or has been, on or prior to the Initial Closing Date, (x) used in connection with the Seller Business, (y) used in connection with the development of any product, service, or system in the Seller Business, or (z) incorporated into any product, service, or system in the Seller Business:

(i) (A) to use such Transferred IP in the operation of the Seller Business and to practice any methods, processes, and procedures in connection therewith and (B) to make, have made, use, sell, offer for sale, import, and otherwise dispose of products, services, and systems that were designed, developed, manufactured, distributed, offered for sale, sold, resold, supported, otherwise under development, or provided, as of the applicable Closing Date, by the Seller Parties in connection with in the Seller Business and to practice any methods, processes, and procedures in connection therewith, and in each case of clauses (A) and (B), including with respect to all Derivative Works and natural evolutions thereof;

(ii) to make, have made, use, sell, offer for sale, import and otherwise dispose of Smart Sensing Network Equipment; and

(iii) to make, have made, use, sell, offer for sale, import, and otherwise dispose of Public Safety LTE Smartphone Devices.

Clauses (i) through (iii) above are collectively referred to as the Seller Licensed Activities. The license rights granted under this Section 2.1(d) include:

(1) with respect to such Transferred IP that constitutes Copyrights or copyrightable materials (other than Software), the rights to reproduce, prepare Derivative Works of, perform, display, and distribute such Copyrights and copyrightable materials in connection with the Seller Licensed Activities; and

(2) with respect to such Transferred IP that constitutes Software, the rights to: (I) use, reproduce, prepare Derivative Works of,   19





perform, and display such Software in connection with the Seller Licensed Activities; and (II) distribute such Software and Derivative Works of such Software in connection with the Seller Licensed Activities (but in Source Code form, solely as permitted pursuant to Section 2.1(f) and in accordance with Article V).

For the avoidance of doubt, this Section 2.1(d) shall not constitute a license to Trademarks.

(e) Seller Excluded Products. The licenses granted pursuant to Section 2.1(c)(i), Section 2.1(c)(ii), Section 2.1(d)(i), and Section 2.1(d)(ii) do not extend to any product, system, or service if and solely to the extent such product, system, or service constitutes or includes a Seller Excluded Product; provided, that if any such Seller Excluded Product is a Type of Enterprise Mobile Computing Product, then if and solely to the extent that such Seller Excluded Product is a Permitted Type of Enterprise Mobile Computing Product, such licenses will extend solely to such Permitted Type of Enterprise Mobile Computing Product that constitutes such product, system, or service or, as included in such product, system, or service, is included in such product, system, or service, as applicable. By way of example, if a Seller Excluded Product is a single component of a product, system, or service that is otherwise licensed under Section 2.1(c)(i), Section 2.1(c)(ii), Section 2.1(d)(i), or Section 2.1(d)(ii) and such Seller Excluded Product is not a Permitted Type of Enterprise Mobile Computing Product, such licenses do not extend to such component, but such licenses do extend to the remainder of such licensed product, system, or service. By way of further example, if a Seller Excluded Product is a single component of a product, system, or service that is otherwise licensed under Section 2.1(c)(i), Section 2.1(c)(ii), Section 2.1(d)(i), or Section 2.1(d)(ii), then to the extent such Seller Excluded Product is a Permitted Type of Enterprise Mobile Computing Product, such licenses extend to such component as included in such licensed product, system, or service.

(f) Sublicenses. Each of the Seller Parties may grant sublicenses of the licenses granted to it pursuant to Section 2.1(c) or Section 2.1(d): (i) to any (for the avoidance of doubt, and without limiting any other provision of this IP Agreement, current or future) direct or indirect Subsidiary of Seller (but only for so long as such Person remains such a Subsidiary); (ii) to any other Person in connection with the sale or disposition of substantially all of the assets of a business or product line of any of the Seller Parties; (iii) other than with respect to Section 2.1(c), for the purpose of any Person's (including resellers, distributors, and OEMs) distribution of products licensed under Section 2.1(c) or Section 2.1(d); (iv) other than with respect to Section 2.1(c), to any Person (including OEMs, JDMs, suppliers, contractors, and subcontractors) solely for the purpose of, and to the extent necessary for, such Person to perform any service (including any service with respect to the design, manufacture, import, export, or supply of any product, service, or system in the Seller Business or any components thereof) for a Seller Party, and not for the direct benefit of such Person or any other Person, (v) other than with respect to Section 2.1(c), to a customer of a Seller Party for such customer's use of a product licensed under Section 2.1(c) or Section 2.1(d); or (vi) other than with respect to Section 2.1(c), with respect to Software, to any Person for the purpose of such   20





Person's development of Software that is compatible or interoperates with a product licensed under Section 2.1(c) or Section 2.1(d). The Seller Parties have no other right to grant sublicenses under any of the licenses granted to the Seller Parties under this IP Agreement.

(g) No Implied Rights. The Seller acknowledges and agrees that, except as expressly set forth in this Section 2.1 of this IP Agreement, the Seller Parties are not obtaining any rights under this IP Agreement in or to any Intellectual Property owned by Purchaser or any Purchaser Licensee as of the Initial Closing Date or at any time thereafter, and nothing in this IP Agreement confers on any Seller Party any right to use any names of the Purchaser or any Purchaser Licensee in any advertising publicity or other promotional activities.

Section 2.2 Licensed IP.

(a) Patent License. Effective as of the Initial Closing Date, the Seller hereby grants (and will cause each other Seller Party to grant following each applicable Closing Date), to the Purchaser Licensees an irrevocable (except as expressly set forth herein), perpetual, non-sublicenseable (except as expressly set forth herein), fully paid-up, royalty-free, worldwide, non-transferable (except as expressly set forth herein), non-exclusive license, under the Licensed Patents:

(i) (A) to use the Licensed Patents in the operation of the Business and to practice any methods, processes, and procedures in connection therewith and (B) to make, have made, use, sell, offer for sale, import and otherwise dispose of products, services, and systems that were designed, developed, manufactured, distributed, offered for sale, sold, resold, supported, otherwise under development, or provided, as of the applicable Closing Date, by the Seller Entities in connection with the Business and to practice any methods, processes, and procedures in connection therewith, and in each case of clauses (A) and (B), including with respect to all Derivative Works and natural evolutions thereof; and

(ii) to make, have made, use, sell, offer for sale, import, and otherwise dispose of Smart Sensing Network Equipment.

(b) License of Non-Patent, Non-Trademark Licensed IP. Effective as of the Initial Closing Date the Seller hereby grants (and will cause each other Seller Party to grant, following each applicable Closing Date), to the Purchaser Licensees an irrevocable (except as expressly set forth herein), non-sublicenseable (except as expressly set forth herein), perpetual, fully paid-up, royalty-free, worldwide, non-transferable (except as expressly set forth herein), non-exclusive license, under the Licensed IP (other than Trademarks and Patents):

(i) (A) to use such Licensed IP in the operation of the Business and to practice any methods, processes, and procedures in connection therewith and (B) to make, have made, use, sell, offer for sale, import, and otherwise dispose of products, services, and systems that were designed, developed, manufactured,   21





distributed, offered for sale, sold, resold, supported, otherwise under development, or provided, as of the applicable Closing Date, by the Seller Entities in connection with the Business and to practice any methods, processes, and procedures in connection therewith, and in each case of clauses (A) and (B), including with respect to all Derivative Works and natural evolutions thereof; and

(ii) to make, have made, use, sell, offer for sale, import, and otherwise dispose of Smart Sensing Network Equipment.

Clauses (i) and (ii) above are collectively referred to as the Purchaser Licensed Activities. The license rights granted under this Section 2.2(b) include:

(1) with respect to Licensed IP that constitutes Copyrights or copyrightable materials (other than Software), the rights to reproduce, prepare Derivative Works of, perform, display, and distribute such Copyrights and copyrightable materials in connection with the Purchaser Licensed Activities; and

(2) with respect to Licensed IP that constitutes Software, the rights to (I) use, reproduce, prepare Derivative Works of, perform, and display such Software in connection with the Purchaser Licensed Activities; and (II) distribute such Software and Derivative Works of such Software in connection with the Purchaser Licensed Activities (but in Source Code form, solely as permitted pursuant to Section 2.2(f) and in accordance with Article V).

For the avoidance of doubt, this Section 2.2(b) shall not constitute a license to Trademarks.

(c) License of Trademark IP.

(i) License Grant. Effective as of the Initial Closing Date, the Seller hereby grants (and will cause each other Seller Party to grant, following each applicable Closing Date, to the Purchaser Licensees) a perpetual (unless terminated in accordance with Section 4.2(ii)(c)), fully paid-up, royalty-free, worldwide, non-transferable (except as set forth herein), non-exclusive license to use any and all Licensed Trademarks in the Business (including with respect to the Purchaser Licensed Activities), including with respect to all Derivative Works and natural evolutions of such Business, in a manner that is the same or substantially similar to the manner in which the Seller Entities have used the Licensed Trademarks in the Business.

(ii) Quality Control. Purchaser will cause each Purchaser Licensee, following the Initial Closing Date, to include appropriate Trademark notices as required by applicable Law in connection with each of their respective uses of the Licensed Trademarks. The Purchaser acknowledges and agrees that all use of the Licensed Trademarks by the Purchaser Licensees following the Initial Closing Date and all goodwill associated therewith shall inure to the benefit of the Seller.   22





Purchaser will cause the Purchaser Licensees to use the Licensed Trademarks following the Initial Closing Date with appropriate legends as required under applicable Law. Purchaser agrees that the quality of all Seller Excluded Products and any other products and services marketed or sold by the Purchaser Licensees under the Licensed Trademarks will conform to at least the level of quality of the Enterprise Products as currently provided by the Seller Entities as of the Initial Closing Date. Purchaser will (and will cause each Purchaser Licensee to) reasonably cooperate with Seller in facilitating Seller's control of such quality, permit reasonable inspection of the Purchaser Licensees' operations (upon reasonable notice and during normal business hours) solely with respect to their respective use of the Licensed Trademarks (if any), and supply Seller with specimens of any of their respective uses of the Licensed Trademarks (if any), including such specimens that are advertising or marketing materials, upon Seller's reasonable request, at Seller's expense.

(d) Transitional Trademark License.

(i) License Grant. Effective as of the Initial Closing Date, the Seller hereby grants (and will cause each other Seller Party to grant following each applicable Closing Date) to the Purchaser Licensees:

(A) for a period of one hundred eighty (180) days after the applicable Closing Date (the Mobility Transition Period), a fully paid-up, royalty-free, worldwide, non-transferable, non-exclusive sublicense to use any and all Mobility Trademarks, in accordance with the terms and conditions of the Mobility Trademark License; and

(B) for a period of seven hundred thirty (730) days after the applicable Closing Date (the Non-Mobility Transition Period), a fully paid-up, royalty-free, irrevocable (except as expressly set forth herein), worldwide, non-transferable, non- exclusive license to use any and all Retained Seller Trademarks (other than the Mobility Trademarks and Licensed Trademarks) that are or have been, on or prior to the Initial Closing Date, used in connection with the Business or any product, service, or system in the Business (the Non-Mobility Trademarks),

in each case of clauses (A) and (B), solely in connection with the operation of the Business or with the exercise of the licenses granted pursuant to Section 2.2(a) and Section 2.2(b), in a manner that is the same or substantially similar to the manner in which the Seller Entities used the Mobility Trademarks or Non-Mobility Trademarks, as applicable, in connection with the Business as of the Initial Closing Date, including with respect to existing signs and stocks of advertisements and promotional materials and items, inventory and packaging included in the Acquired Assets (Existing Stock) containing any Mobility Trademark or Non- Mobility Trademark. Seller Excluded Products manufactured during the Mobility Transition Period or Non-Mobility Transition Period that bear the Mobility Trademarks or the Non-Mobility Trademarks will be treated as   23





Existing Stock under this Section 2.2(d), except to the extent a Purchaser Licensee is separately sublicensed with respect to any such Mobility Trademark or Non-Mobility Trademark.

(ii) Purchaser Transition Efforts. Notwithstanding Section 2.2(d)(i), each Purchaser Licensee shall use Reasonable Efforts to discontinue the use of, exhaust, or otherwise dispose of, the Existing Stock after the Initial Closing Date and to modify all manufacturing equipment to cease to manufacture Seller Excluded Products marked with the Mobility Trademarks as soon as reasonably practicable after the Initial Closing Date.

(e) Purchaser Excluded Products. The licenses granted pursuant to Section 2.2(a), Section 2.2(b), and Section 2.2(c) do not extend to any product, system, or service if and solely to the extent such product, system, or service constitutes or includes a Purchaser Excluded Product, except for a Purchaser Excluded Product that is Smart Sensing Network Equipment that is, as manufactured by or for a Purchaser Licensee, not specifically enabled for use in conjunction with or for interoperability with a (i) Public Safety Next-Gen LTE Network or (ii) Two-Way Radio Network. By way of example, if a Purchaser Excluded Product is a single component of a product, system, or service that is otherwise licensed under Section 2.2(a), Section 2.2(b), or Section 2.2(c), such licenses do not extend to such component, but such licenses do extend to the remainder of such licensed product, system, or service.

(f) Sublicenses. Each Purchaser Licensee may grant sublicenses of the licenses granted to it pursuant to Section 2.2: (i) to any (for the avoidance of doubt, and without limiting any other provision of this IP Agreement, current or future) direct or indirect Subsidiary of Purchaser (but only for so long as such Person remains such a Subsidiary); (ii) to any other Person in connection with the sale or disposition of substantially all of the assets of a business or product line of any Purchaser Licensee; (iii) other than with respect to Section 2.2(a), for the purpose of any Person's (including resellers, distributors, and OEMs) distribution of products licensed under Section 2.2; (iv) other than with respect to Section 2.2(a), to any Person (including OEMs, JDMs, suppliers, contractors, and subcontractors) solely for the purpose of, and to the extent necessary for, such Person to perform any service (including any service with respect to the design, manufacture, import, export, or supply of any product, service, or system in the Business or any components thereof) for a Purchaser Licensee, and not for the direct benefit of such Person or any other Person, (v) other than with respect to Section 2.2(a), to a customer of a Purchaser Licensee for such customer's use of a product licensed under Section 2.2; or (vi) other than with respect to Section 2.2(a), with respect to Software, to any Person for the purpose of such Person's development of Software that is compatible or interoperates with a product licensed under Section 2.2. The Purchaser Licensees have no other right to grant sublicenses under any of the licenses granted to the Purchaser Licensees under this Section 2.2.

(g) Acknowledgement. The Purchaser acknowledges and agrees that the licenses granted under this Section 2.2 do not extend to Purchaser or any product, system or service manufactured, sold, designed, distributed, or supported by Purchaser directly or indirectly through any Purchaser Licensee, other than any Business Activities for Seller Excluded Products or Smart Sensing Network Equipment.   24





Section 2.3 Delivery.

(a) Documentation. To the extent in the possession or under the control of any Seller Party, the Seller shall provide (and shall cause the other Seller Parties to provide) to the Purchaser: (i) promptly after the Initial Closing Date, complete and accurate copies of all the following that constitute Transferred IP: file histories and notes (where such notes are regarding, with respect to Transferred IP, actual or potential disclosure dates or prior art dates, standards-essential Patents, or license or covenants not to sue granted to any Person with respect to such Transferred IP) from the Seller Parties' docketing systems of the pending Patent applications and issued Patents (and invention disclosures, if any, for all such applications and Patents that any Seller Party is able to provide using Reasonable Efforts), pending Trademark applications and Trademark registrations, Copyright applications and Copyright registrations, and unpublished Patent applications; (ii) within thirty (30) days after the Effective Date, for Transferred IP throughout the world, a list of the names, addresses, email addresses, and phone numbers of prosecution counsel and agents; (iii) within thirty (30) days after the Effective Date, a list of all actions that must be taken for Transferred IP throughout the world (a Transferred IP Docket) within one hundred eighty (180) days after the Effective Date (including the payment of any registration, maintenance, or renewal fees or the filing of any documents, corrections, or replies to any Governmental Entity, applications or certificates, for the purposes of prosecuting, maintaining, or renewing any such registered, issued, or applied-for Transferred IP); and (iv) at least on a monthly basis during the period of time from the Effective Date until the Initial Closing Date, reasonable access to the docketing information (with respect to such Transferred IP) generated by any Seller Party in the Ordinary Course consistent with how such Seller Party generates such information for itself. As of the Initial Closing Date, the Purchaser assumes all responsibility for the prosecution, maintenance and enforcement of the Transferred IP assigned under this IP Agreement as of the Initial Closing Date to a Purchaser Assignee, and the payment of all fees, and all other prosecution and maintenance activities associated with such Transferred IP. After the Effective Date, Seller shall (and shall cause the other Seller Parties to) cooperate and assist Purchaser in good faith with respect to: (A) providing information to Purchaser that is reasonably sufficient to allow Purchaser to understand prosecution, maintenance, renewal, and new filing activities with respect to the Transferred IP that occur or will occur between the Effective Date and the Initial Closing Date; and (B) providing written instructions to all prosecution counsel and agents throughout the world who are responsible for the Transferred IP to instruct such counsel and agents that Purchaser and the Purchaser Assignees will be responsible for the Transferred IP as of the Initial Closing Date and that all reasonably necessary steps should be taken to prevent the loss of any rights embodied by the Transferred IP unless such counsel and agents have received express written instructions to the contrary from Purchaser.

(b) Obligation to Deliver Technology. Following the Initial Closing Date, to the extent in the possession or under the control of any Seller Party and to the extent not   25





contained in storage media that constitutes an Acquired Asset and is delivered to the Purchaser, the Seller shall (and shall cause the other Seller Parties to), upon the Purchaser's reasonable request, use Reasonable Efforts to provide the Purchaser with all materials, Software, information, tangible embodiments, and other tangible things, as those terms have been interpreted pursuant to any applicable Laws governing the production of documents and things, constituting, comprising, related to, or necessary to practice the Transferred IP or Licensed IP. To the extent that such materials, Software, information, tangible embodiments, and other tangible things constitute, comprise or relate to any Intellectual Property licensed to Seller under Section 2.1(c) or Section 2.1(d) or the Licensed IP, the Seller shall be permitted to retain a reasonable number of copies of such documents, materials, Software, information, tangible embodiments, and other tangible things. Purchaser shall use Reasonable Efforts to inform Seller of the locations of any such materials, Software, information, tangible embodiments, and other tangible things requested by Purchaser, where Purchaser has actual knowledge of such locations.

Section 2.4 General Intellectual Property Provisions.

(a) Termination of Third Party Contracts. The license rights granted to the Purchaser Licensees under any Licensed IP that constitutes Third-Party Intellectual Property, if any, are subject to the terms and conditions of the Contracts applicable to such Licensed IP, and will terminate upon (i) termination of such Contracts, or (ii) termination of the Seller Parties' right to sublicense the Purchaser Licensees under such Contracts, in each case by the applicable third party licensor or sublicensor, as applicable (and not by a Seller Party).

(b) Compliance with Third Party Contracts. Following the Initial Closing Date, the Purchaser shall cause the Purchaser Licensees and its and their employees, contractors and agents to, comply with the terms and conditions of any such Contracts that are listed on Schedule 2.4(b) to the extent such terms and conditions are applicable to the Third-Party Intellectual Property sublicense rights granted to the Purchaser Licensees pursuant to this IP Agreement; provided, however, that the foregoing shall not require any Purchaser Licensee (or any current or future Affiliate thereof) or any of their respective employees, contractors, or agents (i) to pay or otherwise be responsible for any direct or indirect amounts, fees, charges, costs, or other consideration to any Person or (ii) to grant any license (or covenant not to sue) with respect to any Intellectual Property, in each case of clauses (i) and (ii) with respect to any such Contract.

(c) No Implied Rights. The Purchaser acknowledges and agrees that, except as expressly set forth in Section 2.1 and Section 2.2 of this IP Agreement, (i) the Purchaser Licensees are not obtaining any rights in or to any Seller IP or Retained Seller Trademarks under this IP Agreement, and (ii) nothing in this IP Agreement confers on the Purchaser Licensees any right to use any name of any Seller Party in any advertising, publicity or other promotional activities; provided, however, that notwithstanding anything to the contrary contained in this IP Agreement, the Purchaser Licensees and any of their current or future Affiliates may make factual, non-trademark use of Seller's and the other Seller Parties' full corporate names in order to fairly and accurately describe the history of the Business. Nothing herein prohibits such Purchaser Licensees and such   26





Affiliates from maintaining books and records containing documents of files marked with any Retained Seller Trademarks in the Ordinary Course for archival and regulatory compliance purposes.

(d) Third-Party Trademarks. Except as otherwise expressly provided herein, nothing in this IP Agreement confers on the Purchaser Licensees any right to use any Trademarks owned by any Person other than the Seller Parties. Except with respect to the Trademarks set forth on Schedule 2.4(d), following the Initial Closing Date, the Purchaser Licensees may not add any such Trademarks to any inventoried Enterprise Products of the Business existing as of the Initial Closing Date that are part of the Acquired Assets and that contain a Trademark licensed to the Seller Parties pursuant to the Mobility Trademark License without the Seller's prior written consent.

Section 2.5 Standards Organizations. The Seller or at least one other Seller Party is a member of the SDOs listed on Schedule 3.8(a) of the Seller IPA Disclosure Schedule. The Seller shall provide (and shall cause the other Seller Parties to provide) to Purchaser within ninety (90) days of the Initial Closing Date, complete and accurate copies of, any IP policies, other licensing commitments, and generally applicable member requirements that are associated with any SDO listed on Schedule 3.8(a) of the Seller IPA Disclosure Schedule and complete copies of all IP declarations, pledges, commitments, and other statements that any Seller Party has made in association with the Transferred IP, in all cases, with respect to each such copy, to the extent that Purchaser cannot obtain such copy using Reasonable Efforts and Seller is not prohibited from providing such copy to Purchaser). During the period of time between the Effective Date and the Initial Closing Date, Seller shall promptly notify Purchaser if any Seller Party becomes a member of any SDO not listed on Schedule 3.8(a) of the Seller IPA Disclosure Schedule, becomes subject to any other IP policy, licensing commitment, or generally applicable member requirement of any SDO, or submits any IP declaration, pledge, commitment, or other statement to any SDO. The Purchaser acknowledges and agrees that Patents that are Transferred IP may be subject to the requirements of such SDOs. Subject to the Purchaser's receipt prior to the Initial Closing Date of such applicable IP policies, other licensing commitments, and generally applicable member requirements, the Purchaser agrees, with respect to Patents that are Transferred IP, to comply (and will cause the Purchaser Assignees to comply) with the licensing commitments imposed on members of such SDOs and to comply with any other requirements of such SDOs that are generally applicable to members thereof, to the extent Seller is required to pass such commitments or requirements on to Purchaser under its agreements with the applicable SDO.

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER

Except as specifically set forth in, or qualified by any matter set forth in, the disclosure schedules, dated as of the date of this IP Agreement and delivered by the Seller to the Purchaser (collectively, the Seller IPA Disclosure Schedule) (it being agreed that the disclosure of any matter in any section or subsection in the Seller Disclosure Schedule, the Seller IPA Disclosure Schedule or the Seller EMA Disclosure Schedule shall be deemed to have been disclosed in any other section or subsection in the Seller Disclosure Schedule to which the applicability of such   27





disclosure is reasonably apparent on the face of such disclosure), the Seller represents and warrants to the Purchaser as follows:

Section 3.1 Ownership. With respect to each item of Assigned IP and Acquired Company IP, respectively, such item is owned by a Seller Party or an Acquired Company, respectively, and such Seller Party or Acquired Company, respectively, has marketable title to such item. Schedules 1.1(b) and 1.1(c) of the Seller IPA Disclosure Schedule collectively set forth a complete and accurate list of all registered, issued, or applied-for Intellectual Property that constitutes Acquired Company IP and Schedules 1.1(h), 1.1(l), and 1.1(n) of the Seller IPA Disclosure Schedule collectively set forth a complete and accurate list of all registered, issued, or applied-for Intellectual Property that constitutes Assigned IP (such Acquired Company IP and Assigned IP, collectively, the Registered Intellectual Property). For each listed item, each of Schedule 1.1(b), 1.1(c), 1.1(h), 1.1(l), and 1.1(n) of the Seller IPA Disclosure Schedule, as applicable, indicates, as applicable, each owner of each such item of Registered Intellectual Property, the jurisdictions in which each such item of Registered Intellectual Property has been issued or registered or in which any application for such issuance or registration has been filed, the registration or application number, and the application filing or registration dates thereof. Each such item of Registered Intellectual Property is subsisting and, to the Knowledge of the Seller, valid and enforceable (except with respect to applications for Intellectual Property). A Seller Party has sufficient right, title, and interest in and to the Licensed IP to grant the licenses granted under this IP Agreement with respect thereto.

Section 3.2 Encumbrances. Except as set forth on Schedule 3.2(a) of the Seller IPA Disclosure Schedule, the Transferred IP is free and clear of any Encumbrances (other than Permitted Encumbrances and obligations under applicable SDO agreements with SDOs listed on Schedule 3.8 of the Seller IPA Disclosure Schedule) and, as of the Initial Closing Date, will be fully transferable, alienable, and licensable by the Purchaser Assignees and Acquired Companies without restriction and without payment to any Person and, except as set forth on Schedule 3.2(b) of the Seller IPA Disclosure Schedule, no Person has an option to take an assignment or license of any Transferred IP.

Section 3.3 Claims. Except as set forth on Schedule 3.3(a) of the Seller IPA Disclosure Schedule, (i) no Legal Proceeding is pending against any Seller Entity, (ii) no Legal Proceeding has been brought against any Seller Entity during the last three (3) years that was not resolved (other than pursuant to a settlement or license Contract), and (iii) no Claim has been threatened in writing against any Seller Entity during the last three (3) years (and, with respect to clause (B), was directed to the Seller Entities' Legal and Governmental Affairs group (including any member or representative thereof and any attorney of any of the Seller Entities) or of which any of them were aware), in each case of clauses (i) through (iii), (A) with respect to any infringement, misappropriation, or other violation, of any Intellectual Property of any Person (or any unfair competition or trade practices) by any Seller Entity in connection with an Enterprise Product (including by any making, having made, using, selling, offering for sale, importing, and otherwise disposing of an Enterprise Product or any services in connection therewith), including any unsolicited offers to license specifically directed (in whole or in part) to an Enterprise Product and directed to the Seller Entities' Legal and Governmental Affairs group (including any member or representative thereof and any attorney of any of the Seller Entities) or of which any of them were aware, unsolicited demands to license, or cease and desist letters, or   28





(B) challenging the enforceability, use, ownership, scope, or validity, of any Transferred IP (other than office actions issued in the ordinary course of prosecuting any pending patent or trademark application). Except as set forth on Schedule 3.3(b) of the Seller IPA Disclosure Schedule, with respect to the infringement, misappropriation, or other violation of any Transferred IP, (1) no Legal Proceeding has been brought during the last six (6) years or is pending, and (2) no Claim has been threatened in writing during the last three (3) years, against any Person by any Seller Entity. None of the Enterprise Products or Transferred IP are subject to any outstanding Order restricting or otherwise limiting the use, validity, enforceability, disposition, or exploitation thereof or any right, title, or interest of any Seller Entity with respect thereto.

Section 3.4 Material IP Contracts. Schedule 3.4 of the Seller IPA Disclosure Schedule sets forth a complete and accurate list of all of the following (the Material IP Contracts): (i) Contracts to which any Acquired Company is a party under which (A) a Person grants to an Acquired Company a license to (or covenant not to sue with respect to) Intellectual Property in connection with the Business (the In-bound Licenses) (provided that Seller shall not be required to list Off-the-Shelf Software Licenses and Contracts for Open Source Software), or (B) an Acquired Company grants to any Person a license to (or covenant not to sue with respect to) Intellectual Property (the Out-bound Licenses) (provided that Seller shall not be required to so list non-exclusive licenses granted in the Ordinary Course to a (I) supplier solely for the purposes of, and to the extent necessary for, such supplier to design, manufacture and supply Enterprise Products for any Seller Entity with respect to the Business, and not for the direct benefit of such supplier or any other Person, or (II) customer solely for such customer's use of an Enterprise Product), (ii) other than In-Bound Licenses and Out-Bound Licenses set forth in Schedule 3.4(a) or Schedule 3.4(b) of the Seller IPA Disclosure Schedule, material Contracts entered into by any Seller Entity that materially adversely affect any Seller Entities' ability to own, use, transfer, license, or enforce any Transferred IP (including any sole or exclusive license grants) or that require payment of royalties with respect to any Transferred IP, and (iii) all Contracts (other than Assumed Contracts set forth on Schedule 1.1(c) of the Acquisition Agreement) entered into by any Seller Entity pursuant to which, as of the Initial Closing Date, any Acquired Company is a licensee or sublicensee of any cross-license to any Patent that claims or is alleged to claim any Wireless Standard or that is a general cross-license to any Patent, excluding any such Contracts that will expire or terminate within six (6) months after the Effective Date.

Section 3.5 Non-Infringement. Except as set forth on Schedule 3.5(a) of the Seller IPA Disclosure Schedule, the operation of the Business as currently conducted does not infringe, misappropriate, or otherwise violate (or constitute any unfair competition or trade practices), and has not, during the past six (6) years with respect to Patents and during the past three (3) years with respect to all other Intellectual Property, infringed, misappropriated, or otherwise violated (or constituted unfair competition or trade practices), of any Intellectual Property of any Person in any material respect; provided that the foregoing representation is limited to the Knowledge of the Seller with respect to any third party Patents to the extent they claim or are alleged to claim Wireless Standards. Except as set forth on Schedule 3.5(b) of the Seller IPA Disclosure Schedule, to the Knowledge of the Seller, no Person is infringing, misappropriating, or otherwise violating, or, within the last three (3) years, has infringed, misappropriated, or otherwise violated, any Transferred IP in any manner material to the Business.   29





Section 3.6 Employees. All Persons (including current and former employees, contractors, and consultants of any of the Seller Entities) who have conceived, created, invented, modified, improved, or developed any Intellectual Property material to, and used in or necessary for, the operation of the Business, for (or under the direction or supervision of) any Seller Entity (during the course of such employment, engagement, or Contract term therewith, as applicable) have executed and delivered to a Seller Entity, a Contract (i) providing for the non-disclosure by such Person of any trade secrets or other material confidential information of any of the Seller Entities with respect to such Intellectual Property, and (ii) providing for the assignment by way of a present grant of assignment (or, in the case of an independent contractor or consultant of (a) a Seller Entity (other than an Acquired Company), a sublicenseable license, or (b) an Acquired Company, a license) by such Person to a Seller Entity of any such Intellectual Property arising out of such Person's employment by, engagement by, or Contract with such Seller Entity, except where the failure to have such a Contract would not reasonably be expected to have a material adverse effect on the Business; provided, however, that the foregoing representation shall be to the Knowledge of the Seller solely with respect to any such contractor or consultant engaged by, or contracted with, a Seller Entity other than with the involvement or awareness of the Seller Entities' Legal and Governmental Affairs group (including any member or representative of and any attorney of any of the Seller Entities). No such Person has made any assertions with respect to any alleged ownership or title to any such Intellectual Property. To the Knowledge of the Seller, no such Person is in violation of any term or condition of any such Contract.

Section 3.7 Software. None of the Seller Entities (i) has delivered, licensed, released, or disclosed to any Person any of the Source Code for any Enterprise Product (other than, in the Ordinary Course to: (1) an employee of a Seller Entity, (2) a contractor or supplier of a Seller Entity solely for the purposes of, and to the extent necessary for, such contractor or supplier to develop, manufacture, and supply Enterprise Products for any Seller Entity, and not for the direct benefit of such contractor or supplier or any other Person, or (3) with respect to Source Code that is not material to the Business, a customer of a Seller Entity with respect to Enterprise Products or to any Person for the purpose of such Person's development of Software that is compatible or interoperates with an Enterprise Product, in each case of clauses (1) through (3), under written Contracts (which include confidentiality, use, and disclosure restrictions) normally used by the applicable Seller Entity to protect its own similar confidential or proprietary information (and in no event less stringent than the terms and conditions of Article V)), except as would not reasonably be expected to have a material effect on the Business, or (ii) is a party to any Contract requiring the deposit of any such Source Code with an escrow agent or escrow service (or other escrow Contract) or requiring the sharing or disclosure of any such Source Code with any Person. With respect to any Open Source Software that is or has been used by a Seller Entity in any way in connection with any Enterprise Product (including any Open Source Software that is Incorporated Into any Enterprise Product by or on behalf of a Seller Entity), the Seller Entities are and have been in compliance in all material respects with all applicable licenses with respect thereto. No Software that is governed by (or has otherwise been licensed or made available to a Seller Entity under) a Reciprocal License has been (a) Incorporated Into any Enterprise Product by or on behalf of a Seller Entity, or (b) distributed or made available to any Person in connection with the Business by any Seller Entity, in each case of clauses (a) and (b), in a manner that would or does require or condition any right to perform the activity described in clause (a) or (b) on any of clauses (i) through (v) of the definition of Reciprocal License (with   30





respect to such Software). The Seller Entities are in possession of any material Source Code owned by any of the Seller Entities (including any such Source Code to any Enterprise Product) that is related to the Business.

Section 3.8 SDOs. Except as set forth on Schedule 3.8(a) of the Seller IPA Disclosure Schedule, no Seller Entity is an SDO Member. To the extent any Seller Entity is an SDO Member, such Person complies and has complied with all applicable rules and terms and conditions of membership (including all related disclosure obligations), and each Seller Entity is and has been, in material compliance with all Laws related to being an SDO Member, in each case, in connection with the Business. Schedule 3.8(b) of the Seller IPA Disclosure Schedule sets forth a complete and accurate list, to the Knowledge of the Seller, of all Transferred IP that constitutes a Patent that is specifically identified in a disclosure to any SDO where such Patent is subject to any rule, term or condition, license, disclosure obligation, commitment, or agreement related to such SDO (together with a description or reference to such rule, term or condition, license, disclosure obligation, commitment, or agreement).

Section 3.9 Intellectual Property Assets. Assuming (i) the receipt of all consents required to assign or transfer any Assumed Contract (or, with respect to those which are not received, the cooperation by Seller pursuant to Section 10.6 of the Acquisition Agreement), (ii) the replication or split and partial assignment of all Non-Assignable Shared Contracts material, individually or in the aggregate, to the Business as contemplated by Section 10.7 of the Acquisition Agreement, and (iii) the acquisition of all regulatory approvals of Governmental Entities required in connection with the authorization, execution and delivery of the Acquisition Agreement and the consummation of the Contemplated Transactions and excluding all (A) with respect to the receipt of administrative or corporate services or benefits (as set forth in Section 1.2(b) of the Acquisition Agreement), Software and other Third-Party Intellectual Property used in connection with such services or benefits provided to the Acquired Companies pursuant to the Transition Services Agreement, (B) rights granted to the Seller Group under the Contracts set forth on Schedule 3.9 of the Seller IPA Disclosure Schedule, (C) Licensed Mobility Patents (as defined in the Mobility Intellectual Property License) and Mobility Technology (as defined in the Mobility Intellectual Property License), in each case to the extent licensed to each member of the Motorola Group (as defined in the Mobility Intellectual Property License) as of the Initial Closing Date pursuant to the Mobility Intellectual Property License, and (D) Intellectual Property (other than Licensed IP) owned by, or licensed from any Person (other than the Seller Entities) to, a supplier of the Seller Entities that is used by such supplier for the purposes of, and to the extent necessary for, such supplier to manufacture and supply Enterprise Products for the Seller Entities with respect to the Business, and (E) Patents to which the Seller Entities are not licensed as of the Effective Date and that claim Wireless Standards,: the Transferred IP and the Licensed IP, taking into account all provisions of this IP Agreement and the other Transaction Agreements, will be sufficient to enable the Purchaser Assignees and Purchaser Licensees to design, develop, manufacture, import, market, distribute, offer for sale, sell, resell, import, export, use, and support the Enterprise Products and perform services in connection therewith immediately following the Initial Closing in all material respects as designed, manufactured, imported, marketed, distributed, offered for sale, sold, imported, exported, used, supported, and provided, as applicable, by the Seller Entities as of the Effective Date; provided that the foregoing shall not be construed as a representation or warranty against third party Intellectual Property infringement claims. The Purchaser Licensees shall have,   31





following the Initial Closing Date, sufficient rights with respect to the Trademarks licensed to the Purchaser Licensees pursuant to Section 2.2(d), to resell after the Initial Closing Date, finished Enterprise Products that are part of the Acquired Assets or Acquired Company Assets and that bear, as of the Initial Closing Date, any of such Trademarks.

Section 3.10 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS IP AGREEMENT OR ANOTHER TRANSACTION AGREEMENT, NEITHER PARTY (NOR ANY MEMBER OF ITS GROUP OR ANY OF ITS AFFILIATES) MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO ANY INTELLECTUAL PROPERTY ASSIGNED OR LICENSED BY ANY OF THEM TO THE OTHER PARTY (OR ANY MEMBER OF THE OTHER PARTY'S GROUP OR ANY OF ITS AFFILIATES), IN EACH CASE INCLUDING ITS CONDITION, ITS MERCHANTABILITY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, OR TITLE OR NON- INFRINGEMENT.

Section 3.11 No Other Warranties or Covenants. Without limiting Section 3.11, except as expressly set forth in this IP Agreement or another Transaction Agreement, nothing contained in this IP Agreement shall be construed as: (i) a warranty or representation by any Seller Party or Purchaser Assignee or Acquired Company as to the validity or scope of the Transferred IP or the Licensed IP; (ii) conferring any license or any other right, by implication, estoppel or otherwise, under any Seller IP or Transferred IP, except as expressly granted herein; (iii) imposing on any Seller Party or Purchaser Assignee or Acquired Company any obligation to institute any suit or action for infringement of any Transferred IP or Licensed IP, or to defend any suit or action brought by any Person which challenges or concerns the validity of any Transferred IP or Licensed IP; (iv) a warranty or representation by any Seller Party or Purchaser Assignee or Acquired Company that any manufacture, use, sale, lease or other disposition of products by the Purchaser Licensees or Seller Parties or the use of any Transferred IP or Licensed IP will be free from infringement of any Intellectual Property; or (v) imposing on either party any obligation to file any patent application or to secure any patent or maintain any patent in force.

ARTICLE IV TERM AND TERMINATION

Section 4.1 Term. The term of this IP Agreement shall be from the Effective Date until all of the Intellectual Property licensed hereunder is in the public domain (provided, however, that in such event the representations and warranties in Article III shall survive (and terminate) in accordance with the Acquisition Agreement) or this IP Agreement is terminated pursuant to Section 4.3. This IP Agreement shall not expire or terminate for any other reason (even in the event of a material breach).

Section 4.2 Irrevocability of Licenses. Each of the parties acknowledges and agrees that the licenses granted hereunder (i) are irrevocable and (ii) may not be terminated for any reason (even in the event of a material breach), except that (a) with respect to Licensed IP that constitutes Third-Party Intellectual Property, solely as provided in Section 2.4(a), (b) with respect to a particular Patent licensed under this IP Agreement, the license granted to such Patent shall automatically terminate upon the expiration of the statutory term (including all extensions   32





and renewals) of such Patent, and (c) Seller may terminate the license granted to the Purchaser Licensees pursuant to Section 2.2(c) (and no other provision of this IP Agreement), following the Initial Closing Date and upon prior written notice to Purchaser, in the event Purchaser materially breaches Section 2.2(c) and fails to cure such material breach within one hundred twenty (120) days after Purchaser's receipt of written notice from Seller (which such notice shall contain a reasonable description of such material breach and a statement of Seller's intent to terminate the license granted to the Purchaser Licensees pursuant to Section 2.2(c) if such material breach is not cured within such one hundred twenty (120) day period). Nothing herein shall preclude any party from seeking damages or other remedies at law or in equity (other than termination of this IP Agreement or any license to any Intellectual Property granted under this IP Agreement) for any breach hereof.

Section 4.3 Termination of Agreement. This IP Agreement will terminate automatically and without need for further action by either party in the event that the Acquisition Agreement is terminated in accordance with its terms.

Section 4.4 Effect of Termination. Upon termination of this IP Agreement pursuant to Section 4.3, this IP Agreement and the rights and obligations of the parties under this IP Agreement, including any obligation to make any assignment or grant any license hereunder, automatically end without any liability against any party or its Affiliates, except as otherwise provided in the Acquisition Agreement and except that the provisions of this Section 4.4, Article V, Section 6.1, Section 6.2, Section 6.6, Section 6.7, Section 6.8, Section 6.9, Section 6.10, Section 6.11, Section 6.12, and Section 6.13 will remain in force and survive any termination of this IP Agreement.

Section 4.5 Bankruptcy. The parties acknowledge and agree that the licenses granted hereunder are licenses of intellectual property within the meaning of Section 365(n) of the Bankruptcy Code (Section 365(n)), which have been licensed hereunder in a contemporaneous exchange for value. The parties further acknowledge and agree that if the Seller (or any of its Affiliates) or the Purchaser (or any of its Affiliates), as applicable (the Insolvent Party): (i) becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due; (ii) applies for or consents to the appointment of a trustee, receiver or other custodian for it, or makes a general assignment for the benefit of its creditors; (iii) commences, or has commenced against it, any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceedings; or (iv) elects to reject, or a trustee on behalf of it elects to reject, this IP Agreement or any agreement supplementary hereto, pursuant to Section 365 of the Bankruptcy Code (Section 365), or if this IP Agreement or any agreement supplementary hereto is deemed to be rejected pursuant to Section 365 for any reason, this IP Agreement, and any agreement supplementary hereto, shall be governed by Section 365(n) and the other party may elect to fully exercise its rights under this IP Agreement in accordance with Section 365(n). Upon written request from such other party to the Insolvent Party, its applicable Affiliates, or the bankruptcy trustee, of such other party's election to proceed under Section 365(n), such Insolvent Party, its applicable Affiliates, such bankruptcy trustee, or any third party agent shall comply in all respects with Section 365(n), including providing such other party (and its Affiliates) with the Intellectual Property licensed to such other party (and its Affiliates) and not interfering with the rights of such other party (and such Affiliates) as provided in this IP Agreement to obtain access to such Intellectual Property from such Insolvent Party, its applicable Affiliates, the bankruptcy trustee, or any third party agent.   33





ARTICLE V CONFIDENTIALITY

Each party shall (and shall cause the other members of its Group and its Affiliates to) hold the Source Code, trade secrets and other confidential information licensed to any of them under this IP Agreement in confidence, and shall protect the confidentiality thereof using at least the same degree of care that it uses to protect its own similar confidentiality or proprietary information, but in no event using less than a reasonable degree of care. Each party shall not (and shall cause the other members of its Group and its Affiliates not to) (i) disclose any such Source Code, trade secrets, or confidential information to any Person other than to (a) those of its employees who have a need to know, or (b) other third Persons (including customers, suppliers, prospective suppliers, or joint developers), or (ii) use or disclose such Source Code, trade secrets and other confidential information except as necessary to exercise its rights or perform its obligations under this IP Agreement in accordance with any applicable restrictions or obligations with respect thereto, in each case of clauses (i) and (ii), under written Contracts (which include confidentiality, use, and disclosure restrictions) normally used by such party to protect its own similar confidential or proprietary information (and in no event less stringent than the terms and conditions of this Article V). This Article V will not apply to Source Code, trade secrets, or other confidential information of a party or any other member of its Group or any of its Affiliates where the other party can demonstrate such Source Code, trade secrets, or other confidential information (A) is or becomes generally known to the public or enters the public domain, other than as a result of a breach of this IP Agreement by such other party or a member of its Group or its Affiliates, (B) was rightfully disclosed to such other party or a member of its Group or its Affiliates by a third Person provided that such other party or member complies with the restrictions imposed by the third Person, or (C) was developed independently by such other party or member or Affiliate without use of or reference to any information disclosed to any of them by such party. If a party or any of members of its Group or its Affiliates is legally required to disclose any of the other party's Source Code, trade secrets, or other confidential information in connection with any legal proceeding, such party shall promptly notify the other party of the foregoing so that the other party may seek to prevent such disclosure or obtain the entry of a protective order or other appropriate protective device or procedure. The disclosing party shall fully cooperate with and aid such other party in connection with the foregoing. If a protective order or other protective device satisfactory to such other party is not obtained, the disclosing party or its applicable member will disclose only that portion of such Source Code, trade secrets, or other confidential information that is legally required to be disclosed (and will notify the other party of which portions are disclosed). Each party shall take steps reasonable under the circumstances to protect the confidentiality of all Source Code, trade secrets, and other confidential information licensed under this IP Agreement by it or its Affiliates to the other party or a member of its Group or any of its Affiliates.   34





ARTICLE VI GENERAL PROVISIONS

Section 6.1 Remedies. The sole and exclusive remedy for any breach of this IP Agreement, including the representations and warranties and covenants herein, shall be as set forth in Article 8 of the Acquisition Agreement. The representations and warranties and covenants contained herein shall terminate in accordance with Section 8.4 of the Acquisition Agreement

Section 6.2 Assignment. Neither party may assign (whether by operation of law or otherwise) this IP Agreement, or any of its licenses, rights, privileges or obligations hereunder, without the prior written consent of the other party, and any such attempted assignment shall be void; provided, however, that, following the Initial Closing Date, without any such prior written consent but upon prior written notice to the other party, each party may assign this IP Agreement to: (i) an Affiliate; (ii) a lender for collateral security; (iii) a Person that succeeds to all or substantially all of its business or assets to which this IP Agreement relates in connection with a merger or sale of all or substantially all of its assets to which this IP Agreement relates; or (iv) corporate reorganization of the party in which the ultimate ownership of the party immediately prior to such reorganization is the same as the ultimate ownership of the party immediately after such reorganization. If a Seller Party assigns or transfers any Licensed IP, the Seller shall (or shall cause the applicable Seller Party to) expressly condition such assignment or transfer on the express acknowledgement and agreement of the assignee or transferee that all such Licensed IP is bound by the license grants set forth herein. If Purchaser or a Purchaser Assignee assigns or transfers any Intellectual Property licensed to the Seller Parties pursuant to Section 2.1(c) or Section 2.1(d), the Purchaser shall (or shall cause the applicable Purchaser Assignee to) expressly condition such assignment or transfer on the express acknowledgement and agreement of the assignee or transferee that all such Intellectual Property is bound by such license grants. Notwithstanding anything to the contrary contained in this IP Agreement, Article III may only be assigned by a party (and shall be assigned by a party) together with such party's assignment of the Acquisition Agreement in accordance with the terms and conditions thereof. Subject to the foregoing limitations, this IP Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 6.3 Effect of Merger or Change of Control. Upon a merger or change of control of a party (including, for purposes of this Section 6.3, with respect to Purchaser any Purchaser Licensee and with respect to Seller any Seller Party) (a Change of Control Event) with or to a Person (other than a Person that is a then-current Affiliate of such party) (the Buyer), the license rights granted under Article II to such party shall not extend to the Buyer or any of its Affiliates existing immediately prior to the Change of Control Event or any of its or their past, current, or future products, systems or services. If as a result of the Change of Control Event such party remains a separate, independent legal entity (or is merged into another Person, where such Person was formed or created for the purpose of the Change of Control Event or where such Person is a then-current Affiliate of such party), then the license rights granted to such party under Article II shall continue in full force and effect. If as a result of the Change of Control Event such party is merged into the Buyer (other than if the Buyer is formed or created for the purpose of the Change of Control Event) or another Person (other than if such Person is formed or created for the purpose of the Change of Control Event or if such Person is a then-   35





current Affiliate of such party) or otherwise does not remain a separate, independent legal entity (except if such party is merged into another Person, where such Person was formed or created for the purpose of the Change of Control Event or where such Person is a then-current Affiliate of such party), then (i) the license rights granted to such party under Article II shall be limited to the operation of the business and the products, systems, and services (including Smart Sensing Network Equipment and Public Safety LTE Smartphone Devices, as applicable) of such party existing as of the effective date of the Change of Control Event and Derivative Works and natural evolutions thereof (but, in all cases, with respect to such license rights, subject to Section 2.1(e) or Section 2.2(e), as applicable), and (ii) no rights or licenses granted to such party under Article II may be extended to the Buyer or any of its Affiliates existing immediately prior to the Change of Control Event in connection with any of its or their past, current, or future products, systems or services.

Section 6.4 Acquisitions. If either party acquires a business or a Person that conducts a business covering any of the same products, systems, or services as those covered by any license granted under Article II to such acquiring party (a Future Acquisition) (whether in an asset or equity transaction), any such license shall be deemed to apply to such same products, systems, and services (but no other products, systems or services) of such acquired business or Person; provided, that all Patents acquired in connection with such Future Acquisition are licensed to the non-acquiring party and, in the case of Seller, the Seller Parties or, in the case of Purchaser, the Purchaser Licensees, pursuant to the terms and conditions of this IP Agreement. In such event, any such acquired Person shall be deemed a Seller Party or a Purchaser Licensee hereunder, as the case may be.

Section 6.5 Further Assurances. Each of the parties agrees that from time to time, at the reasonable request and expense of the other party, it shall execute and deliver such other documents and take such other actions as the other party may reasonably request to effectuate the transactions contemplated by this IP Agreement (including any short form documentation evidencing the licenses granted by any Seller Party hereunder or other documentation to perfect or record the rights granted hereunder in the Transferred IP or Licensed IP in any jurisdiction throughout the world). The Seller acknowledges and agrees (including on behalf of the other Seller Parties) that the Purchaser or any of its Affiliates may record and perfect this IP Agreement or such documentation in any jurisdiction throughout the world, and the Seller shall (and shall cause the other Seller Parties to) cooperate therewith, at the Purchaser's expense. The Purchaser hereby requests, and the Seller hereby grants (and shall cause the other Seller Parties to grant) to the Purchaser and its Affiliates, all rights necessary to record this IP Agreement or such documentation with the United States Patent and Trademark Office, the United States Copyright Office, and any equivalent office or agency in any jurisdiction in the world. Seller shall (and shall cause the other Seller Parties) to, between the Effective Date and the Initial Closing Date, cooperate with the Purchaser in connection with the Purchaser's preparation for acquiring the Business, including (i) by reasonably sharing information to prevent any loss of any of the Seller Entities' rights to any Intellectual Property constituting Transferred IP or Licensed IP, and (ii) facilitating between the parties and their respective Affiliates' communication and sharing of information related to this IP Agreement.   36





Section 6.6 Governing Law; Forum.

(a) The Laws of the State of Delaware (without reference to its principles of conflicts of law) shall govern the construction, interpretation and other matters arising out of or in connection with this IP Agreement and its schedules (whether arising in contract, tort, equity or otherwise).

(b) Except with respect to (i) the result arising out of the escalation referenced in Section 2.1(b)(iii)(B) and (ii) the result of the escalation referenced in Section 2.1(b)(iii)(F) and any arbitration pursuant to Section 2.1(b)(iii)(F) (other than to enforce any arbitral judgment), the parties hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any Dispute arising out of or relating to this IP Agreements or any agreement or instrument contemplated thereby or entered into in connection herewith or therewith or any of the transactions contemplated hereby or thereby. Each party hereby irrevocably agrees that all claims in respect of such Dispute or proceeding will be heard and determined in such courts (and the courts hearing appeals from such courts). The parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such Dispute brought in such court or any defense of inconvenient forum in connection therewith. TO THE EXTENT PERMITTED BY APPLICABLE LAW THEN IN EFFECT, EACH PARTY HERETO WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM WHETHER BASED ON CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR RELATING TO THIS IP AGREEMENT OR THE ACTION OF ANY OF THE PARTIES THERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.

Section 6.7 Severability. If any term or provision of this IP Agreement is determined to be invalid, illegal or unenforceable, the remaining terms and provisions of this IP Agreement remain in full force, if the essential terms and conditions of this IP Agreement for each party remain valid, binding and enforceable. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this IP Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 6.8 Entire Agreement; Conflicting Provisions. This IP Agreement, together with the other Transaction Agreements and any side letters executed by the parties in connection therewith, and all of the exhibits and schedules appended hereto and thereto, constitute the final, complete and exclusive statement of the parties' agreement on the matters contained herein and therein. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this IP Agreement and the other Transaction Agreements are superseded by this IP Agreement and the other Transaction Agreements, including, but subject to Section 5.5(b) of the Acquisition Agreement, the NDA. In the event of any conflict between any specific provision of this IP Agreement (including Article V) and the provisions of the Acquisition Agreement with respect to the subject matter hereof, the provisions of this IP Agreement will control.





Section 6.9 Counterparts. The parties may execute this IP Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and all of which together constitute one agreement. This IP Agreement is effective upon delivery of one executed counterpart from each party to the other party. The signatures of all parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or email transmission which includes a copy of the sending party's signature(s) is as effective as signing and delivering the counterpart in person.

Section 6.10 Amendment. The parties may amend this IP Agreement only by a written agreement signed by the parties and that identifies itself as an amendment to this IP Agreement.

Section 6.11 Waiver. The parties may waive a provision of this IP Agreement only by a writing signed by the party against whom enforcement of the waiver is sought. A party is not prevented from enforcing any right, remedy or condition in the party's favor because of any failure or delay in exercising any right or remedy or in requiring satisfaction of any condition, except to the extent that the party specifically waives the same in writing. A written waiver given for one matter or occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver for any other matter or occasion. Any enumeration of a party's rights and remedies in this Agreement is not intended to be exclusive, and a party's rights and remedies are intended to be cumulative to the extent permitted by Law and include any rights and remedies authorized in Law or in equity.

Section 6.12 Notices. Each party giving any notice required or permitted under this IP Agreement will give the notice in writing, and shall be deemed to have been duly given: (i) when received if delivered personally; (ii) when transmitted if sent by facsimile (with transmission confirmed); (iii) the day after it is sent if sent by commercial overnight courier; (iv) upon receipt if sent by certified or registered mail (return receipt requested); or (v) when transmitted if sent by email (with receipt confirmed by recipient). Notice to a party is effective for purposes of this Agreement only if given as provided in this Section 6.12 at the address of which the sending party has been notified in accordance with this Section 6.12.   If to the Seller:



Motorola Solutions, Inc. 1303 E. Algonquin Road Schaumburg, Illinois 60196 Facsimile: +847.576.4688 Email: michael.annes@motorolasolutions.com



Attention: Michael Annes, Senior Vice President, Business Development and Ventures   38





With copies to:



Motorola Solutions, Inc. 1303 E. Algonquin Road Schaumburg, Illinois 60196 Facsimile: +847.576.4688 Email: mark.hacker@motorolasolutions.com Attention: Mark Hacker, General Counsel   Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 United States of America Facsimile: +1.312.558.5700 Email: mcostigan@winston.com odavid@winston.com Attention: Matthew D. Costigan Oscar A. David

If to the Purchaser:



Zebra Technologies Corporation 475 Half Day Road Suite 500 Lincolnshire, IL 60069 Facsimile: (847) 821-1492 Email: jkaput@zebra.com Attention: Jim Kaput, General Counsel

With a copy to:



Kirkland & Ellis LLP 300 N. LaSalle Street Chicago, Illinois 60654 Facsimile: +1.312.862.2200 Email: henry.kleeman@kirkland.com scott.falk@kirkland.com Attention: R. Henry Kleeman R. Scott Falk, P.C.

Section 6.13 No Joint Venture. Nothing in this IP Agreement creates a joint venture or partnership between the parties. This IP Agreement does not authorize any party (i) to bind or commit, or to act as an agent, employee or legal representative of, another party, except as may be specifically set forth in other provisions of this Agreement, or (ii) to have the power to control the activities and operations of another party. The parties are independent contractors with respect to each other under this IP Agreement. Each party agrees not to hold itself out as having any authority or relationship contrary to this Section 6.13.

[Remainder of Page Intentionally Left Blank]   39





IN WITNESS WHEREOF, the parties have duly executed and delivered this Intellectual Property Agreement on the date first written above.   MOTOROLA SOLUTIONS, INC.

By:   /s/ Anders Gustafsson Name:   Anders Gustafsson Title:   Chief Executive Officer

ZEBRA TECHNOLOGIES CORPORATION By:   /s/ Michael Annes Name:   Michael Annes Title:   Senior Vice President 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

Answer: 111395


Question: Exhibit 10.38

IN ACCORDANCE WITH ITEM 601(b) OF REGULATION S-K, CERTAIN IDENTIFIED INFORMATION (THE CONFIDENTIAL INFORMATION) HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED. THE CONFIDENTIAL INFORMATION IS DENOTED HEREIN BY [*****].

CISCO SYSTEMS, INC. NONEXCLUSIVE VALUE ADDED DISTRIBUTOR AGREEMENT

This Nonexclusive Value Added Distributor Agreement (Agreement), between ScanSource, Inc., a South Carolina corporation, with its principal place of business at 6 Logue Court, Greenville, South Carolina, 29615 (Distributor), and Cisco Systems, Inc., a California corporation with its principal place of business at 170 West Tasman Drive, San Jose, California 95134 - 1706, (Cisco) is entered into as of the date last written below (the Effective Date).

This Agreement consists of this signature page and the following attachments, each of which is incorporated into this Agreement by reference:

1. Nonexclusive Value Added Distributor Agreement Terms and Conditions 2. EXHIBIT A: Territory 3. EXHIBIT B: Value Added Distributor Support Exhibit 3.1 Appendix 1: Cisco Problem Prioritization and Escalation Guideline 4. EXHIBIT C: Software License Agreement 5. EXHIBIT D: Distributor Freight Policy 6. EXHIBIT E: Affiliate List 7. EXHIBIT F: Software Transfer and Relicensing Policy 8. EXHIBIT G: End of Life Policy

This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior or contemporaneous oral or written communications between the parties. In the event of conflict between the terms of this Agreement and the terms of an Exhibit hereto, the terms of the Exhibit shall govern. There are no conditions, understandings, agreements, representations or warranties, express or implied, which are not specified herein. This Agreement may only be modified by a written document executed by the parties hereto.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed. Each party warrants and represents that its respective signatories whose signatures appear below have been and are on the date of signature duly authorized to execute this Agreement.

ScanSource,Inc. (Distributor) Cisco Systems, Inc. (Cisco) By: /s/ Jeffrey E. Yelton By: /s/ Frank A. Calderon Name: Jeffrey E. Yelton Name: Frank A . Calderon Title: VP Merchandising Title: VP, WW Sales Finance

Date: 1/19/07 Date: January 22, 2007

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

NONEXCLUSIVE VALUE ADDED DISTRIBUTOR AGREEMENT TERMS AND CONDITIONS

1.0 DEFINITIONS.

Affiliate(s) are the entities listed on Exhibit E to this Agreement that are either business units of Distributor (and therefore wholly-owned and a part of Distributor) or are wholly-owned subsidiaries of Distributor, but in either case, only for so long as ownership remains as defined in this provision.

Cisco Quarter shall mean Cisco's fiscal quarters (August 1-October 31; November 1-January 31; February 1-April 30; and May 1-July 31).

Documentation shall mean user manuals, training materials, Product descriptions and specifications, technical manuals, license agreements, supporting materials and other printed information relating to any Product, whether distributed in print, in electronic form, or in CD-ROM or video format.

End User is the final purchaser or licensee who has acquired Products for its own internal use and not for resale, remarketing or redistribution. An entity that performs stocking, sparing or warehousing activities for third parties or procures Cisco Products, Services or Software for delivery to third parties is not an End User.

Global Price List means a complete listing of those Cisco products, services, including products and services which Cisco may make available to Distributor at its sole discretion, and associated prices.

Hardware is the tangible product made available to Distributor.

Major Release or New Release means a release of Software which is designated by Cisco as a change in the ones digit in the Software version number [(x).x.x].

Non-Genuine Products are any and all products: (i) to which a Mark or other Cisco trademark or service mark has been affixed without Cisco's consent; (ii) that have not been manufactured by Cisco or Cisco Technologies, Inc. (CTI) or by a licensed manufacturer of either Cisco or CTI in accordance with the applicable license; or (iii) are produced with the intent to counterfeit or imitate a genuine Cisco Product

Obsolete Product shall mean any Product that is removed from the then-current Value Added Distributor Price List.

Purchase Order is a written or electronic order from Distributor to Cisco for Hardware, Software or Services to be purchased, licensed or provided under this Agreement.

Product means, individually or collectively as appropriate, Hardware, licensed Software, Documentation, developed products, supplies, accessories, and goods to the foregoing, listed on the then-current published Global Price List.

Reseller means an authorized reseller of Distributor that meets Cisco's then-current requirements for resellers, including, without limitation, the requirements set out in Section 26.0 of this Agreement. In the event Cisco enters into authorization agreements whereby Cisco authorizes particular resellers to purchase Products or Services from Distributor and to resell Products or Services to End User, then Reseller shall mean a reseller that is a party to such an authorization agreement.

Services means Cisco's SmartNet family of packaged service offerings, as well as such other service offerings as Cisco makes available for purchase by Distributor on Cisco's Wholesale or Global Price List.

Software is the machine readable (object code) version of the computer programs listed from time to time on the Wholesale or Global Price List and made available by Cisco for license by Distributor, and any copies or Updates thereof. Cisco reserves the right, during the term of this Agreement, to license and distribute items of Software from time to time. Such items of Software may be licensed under additional or different policies and license terms, which will be made available to Distributor. Notwithstanding the use of the term purchase to refer to any item of Software comprising or included within a Product, Cisco and Distributor agree that all Software provided by Cisco to Distributor under this Agreement is licensed by Cisco to Distributor rather than purchased by Distributor from Cisco.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

Territory is comprised of those regions or countries listed in Exhibit A.

Unauthorized Cisco Product means any genuine Cisco Product or Cisco Service that Distributor purchases or acquires from any party other than Cisco and/or an Approved Source. Unauthorized Cisco Products do not include Non-Genuine Products.

Update means a bug fix, error correction, patch or workaround for the Software which is provided by Cisco to Distributor in response to Distributor's request, or at Cisco's option, which Cisco chooses to provide to Distributor.

Value Added Distributor Price List shall mean a portion of the Global Price List containing Products which Cisco makes available to Distributor for stocking and the prices at which Cisco will sell such Products to Distributor.

2.0 SCOPE. This Agreement and the attached Exhibits set forth the terms and conditions for Distributor's purchase of Hardware and license of Software, and redistribution of Products, during the term of this Agreement.

Affiliates of Distributor listed on Exhibit E may purchase Products, solely for redistribution, from Cisco under this Agreement. Distributor hereby guarantees the performance by such Affiliates of the financial and other contractual obligations set forth in this Agreement and represents and warrants that it is empowered to enter into this Agreement on behalf of such Affiliates, and to bind (and does so bind) such Affiliates to the terms and conditions of this Agreement.

Cisco may require certain of the listed Affiliates to execute an agreement with Cisco or an affiliate of Cisco such that the legal relationship shall be between Cisco or Cisco's affiliate and Distributor's Affiliate.

Any breach by Distributor or by an Affiliate of (i) this Agreement, or (ii) any other agreement between Cisco and Distributor or an Affiliate of either party, shall entitle Cisco to terminate this Agreement and/or any such agreement with Affiliate and/or any other Affiliate pursuant to Section 18.

The limit of liability set forth in this Agreement shall be deemed an aggregate limit of liability, not per Affiliate, regardless of whether an Affiliate or Affiliates has executed a separate agreement with Cisco or a Cisco Affiliate permitting such Affiliate to purchase under the terms of this Agreement.

In addition, any reporting requirements hereunder shall be performed solely by Distributor. All reporting information related to Distributor or any Affiliate(s) shall be aggregated and submitted as part of a single report, as required herein.

3.0 APPOINTMENT OF DISTRIBUTOR. 3.1 By this Agreement, Cisco makes, and Distributor accepts, the appointment of Distributor as an authorized, non-exclusive distributor of Products and Services to Resellers located in the Territory. Distributor agrees to use its best efforts to distribute Product solely to Resellers located in the Territory. Those Resellers may resell Product only to End Users who intend to use the Product in the Territory. All Resellers to which Distributor distributes Product must meet Cisco's then-current guidelines for Resellers, as amended from time to time.

3.2 Distributor is authorized to resell only those Products and Services which are listed on the Value Added Distributor Price List. Notwithstanding the foregoing, Cisco may, in its discretion, make available for purchase and resale by Distributor, but not for stocking by Distributor, certain other products and/or services which are listed on the Global Price List. Upon such products or services being made available to Distributor, such products and services will be deemed to be Products and Services as defined herein.

3.3 Products Requirements. For new Products or Services added to the Global or Value Added Distributor Price List, including products or services which become available to Cisco as a result of an acquisition by Cisco of another entity, Cisco may impose certification, installation, or training requirements on Distributor prior to allowing Distributor to purchase, resell, or provide support for such Products or Services.

3.4 Distributor agrees not to solicit orders for Products or Services, or to engage salespeople or establish warehouses or other distribution centers for the redistribution of Products or Services, outside the Territory, except to the extent advertising is placed in a particular advertising medium (except catalogs) which is distributed both inside and outside of the Territory.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

3.5 Unauthorized Cisco Products. Distributor acknowledges that the purchase and Resale of Non-Genuine or Unauthorized Cisco Products are not within the scope of this Agreement and Integrator is not entitled to the rights granted herein with respect to the resale of such Non-Genuine or Unauthorized Cisco Products. For all Unauthorized Cisco Products, Cisco reserves the right to withhold any warranty or Cisco Support on such products, unless such products pass a Cisco equipment inspection and Cisco receives payment for the applicable equipment inspection and/or software license fees, as required in the then​ current Software Transfer and Licensing Policy. A printed copy of the Software Transfe and Licensing Policy, in effect on the Effective Date of this Agreement and available at http://www.cisco.com/warp/public/csc/refurb_equipment/swpolicy.html, shall accompany this agreement. This policy is subject to change without notice. If Cisco determines that Reseller has Resold and/or redistributed Unauthorized Cisco Products purchased from Unauthorized Sources, then Cisco may, at Cisco's sole discretion: (a) audit Reseller's purchase and resale records of Cisco Product and relevant records pursuant to Section 17.0 (Reports and Records) and/or (b) invoice Reseller for all reasonable costs incurred by Cisco in its performance of the Audit and/or (c) suspend all Product shipments to Reseller.

4.0 ORDERS. 4.1 Upon and subject to credit approval by Cisco at the time of Cisco's receipt of any Purchase Order, Distributor shall purchase or license Products or Services by issuing a Purchase Order, signed, if requested by Cisco, or (in the case of electronic transmission) sent by its authorized representative, indicating specific Products and Services, Cisco Product numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable and contract reference, if any. No contingency contained on any Purchase Order shall be binding upon Cisco. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Distributor to Cisco, and any such additional or conflicting terms are deemed rejected by Cisco.

4.2 Cisco shall use commercially reasonable efforts to provide order acknowledgement information within [*****] business days for all Purchase Orders placed on Cisco.com or within [*****] business days of Purchase Orders faxed or hand delivered to Cisco. Cisco Customer Service will review and accept or decline all Purchase Orders for the Cisco entity that will supply the Products or Services, and no other person is authorized to accept Purchase Orders on behalf of Cisco. Cisco Customer Service may accept a Purchase Order even if some of the information required by Section 4.1 above is missing or incomplete. In relation to Services, Cisco will confirm acceptance of a Purchase Order for Services by issuing a list of Products covered by such Services (the Equipment List).

4.3 Distributor may defer Product shipment for up to [*****] from the original shipping date scheduled by Cisco, provided written or electronic notice (issued, in either case, by an authorized representative of Distributor) is received by Cisco at least [*****] days before the originally scheduled shipping date. Cancelled Purchase Orders, rescheduled shipments or Product configuration changes requested by Distributor less than [*****] days before the original scheduled shipping date shall be subject to (a) acceptance by Cisco, and (b) a charge of [*****] of the total invoice amount relating to the affected Products. Cisco reserves the right to reschedule shipment in cases of configuration changes requested by Distributor within [*****] days of scheduled shipment. No cancellation shall be accepted by Cisco where Products are purchased with implementation Services, including design, customization or installation Services, except as may be set forth in the agreement or Statement of Work under which the Services are to be rendered.

5.0 SHIPPING AND DELIVERY 5.1 Scheduled shipping dates will be assigned by Cisco as close as practicable to the Distributor's requested date based on Cisco's then-current lead times for the Products. Cisco will communicate scheduled shipping dates in the order acknowledgement or on Cisco.com. Cisco will ship Product in compliance with Distributor Freight Policy set forth in Exhibit D. If no guidance is contained on Exhibit D for any particular shipment, Cisco shall select the carrier.

5.2 For shipments to the United States, shipping terms are [*****], which shall appear on Cisco's order acknowledgement or be accessible via Cisco.com. Title and risk of loss shall pass from Cisco to Distributor [*****]. For orders placed and/or shipments to destinations outside of the United States but within the Territory (International Orders), Distributor may need to contract with, and/or order from, a Cisco affiliate. Different shipping terms may apply to International Orders, as Cisco shall specify at the time and as shall be recorded in Distributor's agreement with such Cisco affiliate or otherwise set out on Cisco.com.

5.3 CISCO SHALL NOT BE LIABLE FOR LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. EXCEPT IN ACCORDANCE WITH THE APPLICABLE DELIVERY TERMS SET FORTH IN THIS AGREEMENT, CISCO SHALL NOT HAVE ANY

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

LIABILITY IN CONNECTION WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED TO BE AN AGENT OF CISCO.

6.0 PAYMENT. 6.1 Prices for Products shall be those specified in Cisco's then-current Global or Value Added Distributor Price List. [*****] As provided in sub- section 3.2, in its discretion, Cisco may choose to make products or services which are on the Global Price List but not on the Value Added Distributor Price List available to Distributor. The prices for such products or services will be provided by Cisco to Distributor at the time Cisco makes such products available.

6.2 Upon and subject to credit approval by Cisco, payment terms shall be [*****] days from shipping date. All payments shall be made in the currency in which the Price List is quoted for the applicable Purchase Order [*****].

6.3 The purchase price does not include any federal, state or local taxes, or sales, use, excise, ad valorem, value-add, withholding or other taxes or duties that may be applicable to the purchase of Products. When Cisco has the legal obligation to collect such taxes, the appropriate amount shall be added to Distributor's invoice and paid by Distributor, unless Distributor provides Cisco with a valid tax exemption certificate prior to issuance of a purchase order. Such certificate must be in a form authorized by the appropriate taxing authority.

6.4 Distributor is free to determine its minimum resale prices unilaterally. Distributor understands that neither Cisco nor any employee or representative of Cisco may give any special treatment (favorable or unfavorable) to Distributor as a result of Distributor's selection of minimum resale prices. No employee or representative of Cisco or anyone else has any authority to determine what Distributor's minimum resale prices for the Products must be, or to limit Distributor's pricing discretion with respect to the Products and Services.

6.5 In the event any provisions of this Agreement or any other agreement between Distributor and Cisco require that Cisco grant credits to Distributor's account, Cisco will grant such credit to Distributor's account. [*****]. Cisco will only consider debit memos initially received from Distributor during the time period associated with such request, as set forth herein.

All debit memos Distributor submits to Cisco will be submitted using any method identified in 25.8, or as otherwise agreed between the parties.

6.6 Except as stated in Sections 7 (Price Protection), 12 (Inventory Balance), 13 (Return of Obsolete Product), 18 (Term and Termination) or as otherwise stated herein, for all price adjustment related credits requested by the Distributor to be granted by Cisco, the

6.7 Distributor must make the initial credit request to Cisco, in writing, within [*****] of the underlying point of sale transaction. Any initial credit requests submitted by the Distributor to Cisco greater than [*****] after the underlying point of sale transaction will not be honored by Cisco and Cisco will not grant such credit to Distributor.

7.0 PRICE PROTECTION. 7.1 Definition: For purposes of this Section 7.0, Products In-Transit shall be defined as all Products with a particular Cisco part number shipped by Cisco to Distributor in the [*****] day period prior to the date on which Cisco announces a general price decrease for Products with such part number, excluding those Products which Distributor has received into its inventory during such [*****] day period.

7.2 In the event Cisco puts into effect a general price decrease for any Product from the Value Added Distributor Price List, Cisco will provide to Distributor a price credit on any such Product on order, In Transit or in Distributor's inventory as of the effective date of the price decrease, provided that the price credit for such Product in inventory or In Transit shall not exceed the dollar value of shipments of that Product (measured by the appropriate Cisco product number) to Distributor over the preceding [*****]. Cisco will credit Distributor's account with an amount equal to the number of units of such Product in Distributor's inventory and In Transit on the effective date of a price decrease multiplied by the difference between the net price paid and the new net price. Distributor will have [*****] from the effective date of the price change to exercise protection under this program by issuing a request for credit memo with supporting documentation to Cisco. Claims for price protection submitted more than [*****] from the effective date of a price decrease will be rejected. Notwithstanding the foregoing, Product on order will receive an automatic retroactive price credit. The only inventoried Product covered under this price protection clause is Product which has been identified by Distributor to Cisco in the daily inventory reports required in sub-sub-section 17.2.2, excluding any Third-Party

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

Sourced Product. Cisco will use commercially reasonable efforts to notify Distributor within [*****] of all such pricing changes.

8.0 RESERVED

9.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING. 9.1 Distributor's use of Software is governed by the terms contained in Exhibit C (End User License Agreement (EULA)). For purposes of this Agreement, all references to Customer or You therein shall refer to Distributor.

9.2 Distributor shall notify Cisco promptly of any breach or suspected breach of the EULA and further agrees that it will, at Cisco's request, assist Cisco in efforts to preserve Cisco's intellectual property rights including pursuing an action against any breaching third parties.

10. WARRANTY. 10.1 C i s c o  P r o d u c t s  a r e  p r o v i d e d  w i t h  w r i t t e n  l i m i t e d  w a r r a n t i e s ,  a s  s e t  f o r t h  a t  t h e  f o l l o w i n g  U R L : http://www.cisco.com/warp/public/cc/serv/mkt/sup/tsssv/wnty/. Distributor will pass through to Resellers all written limited warranties provided by Cisco with Products purchased by Distributor and Distributor shall contractually require (in whatever manner Distributor deems appropriate) each such Reseller to provide such warranty and other terms to any End User to which the Reseller redistributes the Product.

10.2 In addition to the written limited warranty provided by Cisco with its Products, such warranty statement shall apply to Distributor during the period between when it receives a Product and when it resells or redistributes such Product,

10.3 Notwithstanding any other provision hereof, Cisco's sole and exclusive warranty and obligation with respect to the Products sold hereunder are set forth in Cisco's Limited Warranty Statement delivered with the Product. Distributor SHALL NOT MAKE ANY WARRANTY COMMITMENT, WHETHER WRITTEN OR ORAL, ON CISCO'S BEHALF. Distributor shall indemnify Cisco against any warranties made in addition to Cisco's standard warranty and for any misrepresentation of Cisco's reputation or Cisco's Products.

10.4 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10.0, CISCO HEREBY DISCLAIMS AND DISTRIBUTOR WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10, CISCO MAKES NO REPRESENTATION OR WARRANTY AS TO OWNERSHIP OF INTELLECTUAL PROPERTY OR OF PROPRIETARY RIGHTS, OR AS TO INFRINGEMENT OR MISAPPROPRIATION THEREOF. DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF ANY SUCH INFRINGEMENT, MISAPPROPRIATION OR ANY CLAIM THEREOF SHALL BE AS SET FORTH IN SECTION 15 OF THIS AGREEMENT (PATENT AND COPYRIGHT INFRINGEMENT).

11.0 TRADEMARKS. 11.1 Cisco grants to Distributor the right to use the name, logo, trademarks, and other marks of Cisco (collectively, the Marks) for all proper purposes in the sale of Cisco Products and Services to End Users and the performance of Distributor's duties hereunder only so long as this Agreement is in effect. Distributor's use of such Marks shall be in accordance with Cisco's policies including, but not limited to trademark usage and advertising policies, and be subject to Cisco's written approval. Distributor further agrees not to affix any Marks to products other than genuine Products. Distributor shall have no claim or right in the Marks, including but not limited to trademarks, service marks, or trade names owned, used or claimed now or which Cisco has authority to grant Distributor the right to use in the future. Distributor agrees that upon notice from Cisco it will immediately terminate its use of a particular Mark.

11.2 Distributor shall not acquire, use, promote or Resell Non-Genuine Products. Additionally, Distributor shall

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

notify Cisco promptly of the existence, or suspected existence, of Non​ Genuine Products in possession of or promoted by third parties, and further agrees that it will, at Cisco's request, assist Cisco to diligently pursue any action against any third party in possession of or promoting Non- Genuine Products.

11.3 If Distributor acquires, uses, promotes or Resells Non-Genuine Products, Cisco may take one or more of the following actions, at Cisco's discretion: (i) invoice Distributor, and the latter further agrees to pay within [*****] of receipt of the invoice, for all reasonable costs associated with any Audit and/or any investigation carried out by Cisco or its independent accountants or investigators, that disclosed a material breach by Distributor of this Section, and/or (ii) require Distributor, [*****] of Cisco's request, to recall and destroy all Non-Genuine Products that Distributor has sold to Resellers and replace such products with legitimate, equivalent Products at Distributor's expense, (iii) require Distributor, within [*****] of receiving Cisco's written request, to provide Cisco with all details related to Distributor's acquisition of all Non-Genuine Products, including without limitation, its suppliers, shipping details and all buyers to whom Distributor resold Non-Genuine Products, and (iv) terminate this Agreement by notice with immediate effect.

12.0 INVENTORY BALANCE. For a [*****] period, beginning on the effective date of this agreement, Distributor has the option to return to Cisco, for credit, up to [*****] of the dollar value of Product listed on the Value Added Distributor Price List and shipped to Distributor in the preceding Cisco Quarter, net of credits issued by Cisco to Distributor. [*****] Cisco shall credit Distributor's account in the amount of the price paid by Distributor for returned Products, less any price protection credits issued to Distributor related to the Product returned (the Return Credit). Each of the following requirements must be met by Distributor:

12.1 [*****]

12.2 Distributor may submit the inventory balance claim between the first and [*****] calendar days of the following months: February, May, August, and November.

12.3 [*****]

12.4 Distributor shall bear all shipping and handling charges to the Cisco designated United States site for Product returned for credit;

12.5 Distributor shall obtain an RMA number prior to returning any Product to Cisco. Distributor shall follow Cisco's then-current RMA process; and

12.6 Distributor reports must be provided to Cisco in accordance with the requirements of sub- section 17.2.

[*****]

13.0 RETURN OF OBSOLETE PRODUCT 13.1 Cisco will use commercially reasonable efforts to notify Distributor, including by electronic posting, when a Product becomes an Obsolete Product.

13.2 Provided Distributor provides required reports to Cisco in accordance with Section 17.0 of this Agreement, Distributor shall have the right to return Obsolete Product for full credit under Cisco's then-current RMA Process. [*****]

13.3 Distributor must notify Cisco of the quantity of Obsolete Product to be returned to Cisco within [*****] of notification of obsolescence by Cisco. Such right to return is contingent upon return by Distributor of Obsolete Product within [*****] of such notification by Cisco. Such Product must be in new and unused condition and in factory sealed boxes.

13.4 [*****]

14.0 RESERVED

15.0 PATENT AND COPYRIGHT INFRINGEMENT. 15.1 Cisco will have the obligation and right to defend any claim, action, suit or proceeding (IPR Claim) brought

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

against Distributor, its officers, directors, employees and agents (Named Parties) so far as it is based on a claim that any Product supplied under this Agreement infringes Third Party IPR (as defined below). Cisco will indemnify Named Parties and hold harmless against any final judgment entered in respect of such an IPR Claim by a court of competent jurisdiction and against any settlements arising out of such an IPR Claim. Cisco's obligations to defend the IPR Claim and indemnify Distributor are conditional upon:

15.1.1 Distributor notifying Cisco promptly in writing of the IPR Claim or threat thereof; Distributor granting Cisco full and exclusive authority for the conduct of the defense and settlement of the 15.1.2 IPR Claim and any subsequent appeal; and 15.1.3 Distributor providing Cisco all information and assistance reasonably requested by Cisco in connection with the conduct of the defense and settlement of the IPR Claim and any subsequent appeal.

15.2 For the purposes of this Agreement, Third Party IPR means a United States copyright existing as at the Effective Date, a United States patent issued as at the Effective Date, a trademark registered in the United States as at the Effective Date, trade dress existing in the United States as at the Effective Date, or a claim that a Product is manufactured by means of misappropriation of a third party's trade secrets.

15.3 If an IPR Claim has been made, or in Cisco's opinion is likely to be made, Distributor agrees to permit Cisco, at its option and expense, either to: (a) procure for Distributor the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) immediately terminate both parties' respective rights and obligations under this Agreement with regard to the Product, in which case Distributor will return the Product to Cisco and Cisco will refund to Distributor the price originally paid by Distributor to Cisco for the Product, [*****].

15.4 Notwithstanding the foregoing, Cisco has no liability for, and Distributor will defend and indemnify Cisco against, any IPR Claim arising from:

15.4.1 the combination, operation, or use of a Product supplied under this Agreement with any product, device, or software not supplied by Cisco; 15.4.2 the amount or duration of use which Distributor, a Reseller or an End User makes of the Product, revenue earned by Distributor, a Reseller or an End User from services it provides that use the Product, or services offered by Distributor, a Reseller or an End User to external or internal customers; 15.4.3 the alteration or modification of any Product supplied under this Agreement; 15.4.4 Cisco's compliance with Distributor's designs, specifications, or instructions; or 15.4.5 Distributor's use of the Product after Cisco has informed Distributor of modifications or changes in the Product required to avoid such an IPR Claim if the alleged infringement would have been avoided by implementation of Cisco's recommended modifications or changes.

15.5 This Section states the entire obligation of Cisco and its suppliers, and the exclusive remedy of Distributor, in respect of any infringement or alleged infringement of any intellectual property rights or proprietary rights. THIS INDEMNITY OBLIGATION AND REMEDY ARE GIVEN TO Distributor SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND CISCO DISCLAIMS, ALL WARRANTIES, CONDITIONS AND OTHER TERMS OF NON-INFRINGEMENT OR TITLE WITH RESPECT TO ANY PRODUCT.

15.6 [*****].

16.0 SUPPORT. Support shall be provided in accordance with Exhibit B. Distributor acknowledges that Cisco will not be responsible for warranty service and support except as specifically provided in Exhibit B or a Cisco support program (e.g., SmartNet).

17.0 REPORTS AND RECORDS. 17.1 With regard to both Distributor and Affiliates' activity, Distributor shall keep full, true, and accurate records and accounts, in accordance with generally-accepted accounting principles, of each Product or Service purchased and deployed, Resold, or distributed by serial number, including information regarding compliance with Cisco marketing and sales programs, Software usage, and export or transfer. Distributor shall make these records available for audit by Cisco upon [*****] prior written notice, during regular business hours, at Distributor's principal place of business or such other of Distributor's locations where Distributor may maintain relevant records. [*****].

All reporting and related obligations in this Section 17 apply to not only data regarding Distributor's activities, but also

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

the activities of the Affiliates. All such information shall be compiled into one report unless otherwise directed herein. The report(s) shall identify the specific Distributor entity involved in the subject transaction.

17.2 Reporting. [*****]

17.3 Distributor agrees to use commercially reasonable efforts, commensurate with the manner in which Distributor treats any of its other leading vendors, in order to facilitate Cisco's ability to obtain daily sales information from Distributor via EDI.

17.4 ECCN Numbers. Upon request by Distributor, Cisco agrees to make available to Distributor the Export Control Classification Number (ECCN) for each of Cisco's Product and information as to whether or not any of such Products are classified under the U.S. Munitions license.

17.5 Unauthorized Cisco Product. Distributor will not purchase Products for resale to any Reseller from any person or entity other than Cisco, provided that Distributor may accept returned Product from Resellers if Distributor initially sold the Product to be returned to such Reseller. [*****]

18.0 TERM AND TERMINATION. 18.1 This Agreement shall commence on the Effective Date and continue thereafter for a period of two (2) years, unless extended by written agreement of both parties or sooner terminated as set forth below. Without prejudice to either party's right to terminate this Agreement as set forth in sub​ sections 18.2 to 18.5 below, Cisco may, by written notice to Distributor, given at least thirty (30) days prior to the end of the then-current term of the Agreement, extend the term of the Agreement for the period set forth in such notice, up to a maximum of one (1) year beyond the then- current expiration date. Any extension shall be on the same terms and conditions then in force, except as may be mutually agreed in writing by the parties. In the event the Agreement expires and Cisco intends to not renew the Agreement, Cisco will provide written notice of same to Distributor. Notwithstanding Cisco's right to extend the term of this Agreement, each party acknowledges that this Agreement shall always be interpreted as being limited in duration to a definite term and that the other party has made no commitments whatsoever regarding the duration or renewal of this Agreement beyond those expressly stated herein.

18.2 Termination for Convenience. Either party may terminate this Agreement, without cause, by giving the other party [*****] days prior written notice. Notwithstanding the foregoing, Cisco may terminate this Agreement immediately upon written notice in the event of breach by Distributor of Section 9.0 (Proprietary Rights and Software Licensing), Section 11.0 (Trademarks), Section 19.0 (Confidentiality) or Section 20.0 (Export Restrictions) of this Agreement.

18.3 A party may terminate this Agreement immediately through written notice if (i) the other party ceases to carry on business as a going concern; or (ii) the other party becomes or may become the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; or (iii) a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party's assets; or (iv) an event similar to any of the foregoing occurs under applicable law.

18.4 Cisco may terminate this Agreement upon [*****] days' written notice, in the event it becomes known that (i) Distributor or an Affiliate or Distributor's direct or indirect parent has acquired or intends to acquire a controlling interest in a third party that is a competitor of Cisco, or (ii) Distributor or its direct or indirect parent is to be acquired by a third party, or (iii) a controlling interest in Distributor or its direct or indirect parent is to be transferred to a third party.

18.5 Upon termination or expiration of this Agreement, (a) Cisco reserves the right to cease all further delivery of Product or Services due against any existing Purchase Orders unless Distributor agrees to pay for such deliveries in advance by certified or cashier's check, (b) all outstanding invoices immediately become due and payable by certified or cashier's check, and (c) all rights and licenses of Distributor hereunder shall terminate, subject to the terms of the following sentence. Except for a termination of this Agreement resulting from Distributor's breach of Section 9.0 (Proprietary Rights and Software Licensing) or Section 19.0(Confidential Information), upon termination or expiration of this Agreement, Distributor may continue to use, in accordance with the terms and conditions of this Agreement, Products shipped to it by Cisco prior to the date of termination or expiration.

18.6 Upon termination or expiration of this Agreement, Distributor shall immediately return to Cisco all Confidential Information (including all copies thereof) then in Distributor's possession, custody or control; provided, that except for a termination resulting from Distributor's breach of Section 9.0 (Proprietary Rights and Software Licensing) or Section 19.0 (Confidential Information), Distributor may retain a sufficient amount of such Confidential Information and material

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

to support its installed base of Products.

18.7 [*****].

18.8 In the event of termination by Cisco for convenience, termination by Distributor for Cisco's material breach, or expiration of this Agreement where Cisco has provided Distributor with written notice from an authorized representative of its intention not to renew the Agreement, Cisco agrees to repurchase all Product in Distributor's inventory within [*****] days following the effective date of termination or expiration. Within [*****] days following the effective date of termination or expiration, Distributor shall return to Cisco all Product held in inventory as of the effective date of termination. Distributor shall receive credit for any Product so returned in an amount equal to the original purchase price thereof, less any credits or discounts which have been previously paid or applied to Distributor. Such credits shall be first applied to any uncontested amounts due Cisco. Any remaining balance shall be payable to Distributor as soon as commercially practicable. Cisco shall have the option to select the method of return and shall bear all freight costs associated with returns of Product by Distributor under this Section 18.8.

18.9 In the event of termination by Cisco for Distributor's material breach, or termination by Distributor for convenience, Cisco may, at its option, allow Distributor to return unsold Product, but Cisco is in no way obligated to do so. In the case of authorized return of Product by Cisco under Section 18.9, Distributor will bear all freight costs associated with return of Product to Cisco.

18.10 [*****]

Distributor shall obtain an RMA number prior to returning any Product to Cisco. Distributor shall follow Cisco's then-current RMA process.

18.11 DISTRIBUTOR AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT, IT SHALL HAVE NO RIGHTS TO DAMAGES OR INDEMNIFICATION OF ANY NATURE, SPECIFICALLY INCLUDING COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF ANY PRODUCT, OR OTHER COMMITMENTS IN CONNECTION WITH THE BUSINESS AND GOOD WILL OF DISTRIBUTOR. DISTRIBUTOR EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS RELATIONSHIP. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THIS SECTION SHALL IN NO WAY BE INTERPRETED TO RELEASE EITHER CISCO OR DISTRIBUTOR FROM ANY PAYMENTS OR FINANCIAL OBLIGATION MADE PRIOR TO TERMINATION.

19.0 CONFIDENTIALITY. Distributor acknowledges that, in the course of selling Products and Services and performing its duties under this Agreement, Distributor, its Resellers, and End Users to which Distributor provides access to Cisco technical data (including without limitation Products, Services, and technical data made available on Cisco Connection Online pursuant to Exhibit C), may obtain information relating to Products, Services, or to Cisco, which is of a confidential and proprietary nature (Proprietary Information). Such Proprietary Information includes, but is not limited to, trade secrets, know-how, inventions, techniques, processes, programs, schematics, software source documents, data, Customer lists, financial information and sales and marketing plans.

Cisco owns and intends to maintain its ownership of all such Proprietary Information. [*****] Distributor shall appropriately bind each of its employees to whom such disclosure is made, to hold the Proprietary Information in strict confidence and not to disclose such information to any person other than as is necessary in the course of its employment by Distributor and will indemnify Cisco for all damages suffered by Cisco in the event of wrongful disclosure of such Proprietary Information. Neither party shall disclose, advertise, or publish either the existence, the subject matter, any discussions relating to, or any of the terms and conditions, of this Agreement (or any summary of any of the forgoing) to any third party without the prior written consent of the other party. Any press release, publication, advertisement or public disclosure regarding this Agreement is subject to both the prior review and the written approval of both parties.

Cisco acknowledges that, under this Agreement, Distributor may provide Point of Sale (POS) reports, financial information, sales and marketing plans, Distributor network design information and Distributor lists, of a proprietary and confidential nature (Distributor Confidential Information). Such Distributor information, excluding POS reports and Distributor lists, shall be used by Cisco only in connection with this Agreement. [*****] Cisco further agrees to immediately return to Distributor, at Distributor's request, all Distributor Confidential Information in Cisco's possession, custody, or control upon termination of this Agreement at any time and for any reason, except for POS reports or Distributor

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

lists that Cisco may use for internal business or end user support purposes or government-related purposes.

20.0 EXPORT RESTRICTIONS. Certain of the Products supplied by Cisco under the Agreement are subject to export controls under the laws and regulations of the United States (U.S.) and elsewhere. Distributor shall comply with such laws and regulations governing use, export, re-export, and transfer of Products and will obtain all required U.S. and local authorizations, permits, or licenses.

21.0 COMPLIANCE WITH LAWS. 21.1 Distributor shall obtain all licenses, permits and approvals required by any government, including any recycling or take-back programs applicable to packaging or Products, and shall comply with all applicable laws, rules, regulations, policies and procedures and any requirements applicable to the importation, exportation, use, sale, loan, purchase, and distribution of Products under telecommunications, consumer rights related, environmental, labor, tax, and any other laws and regulations, of any government or other competent authority where the Products are to be sold, used or deployed (collectively Applicable Laws).

21.2 Distributor will indemnify and hold harmless Cisco for any claim arising from or relating to Distributor's violation or alleged violation of any Applicable Laws.

21.3 Distributor hereby represents and warrants that: (a) it shall comply with all Applicable Laws; (b) this Agreement and each of its terms are in full conformance and in compliance with such laws; and (c) it shall not take any action or permit or authorize any action which will render Cisco liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or Cisco in obtaining or retaining business and (i) it will not violate or cause Cisco to violate such Act in connection with the sale or distribution of Cisco Products or Services; and (ii) if Distributor is a non-governmental entity, it will notify Cisco in writing if any of its owners, partners, principals, officers, and employees are or become during the term of this Agreement officials, officers or representatives of any government, political party or candidate for political office outside the United States and are responsible for a decision regarding obtaining or retaining business for Cisco Products by such government. Cisco strives to maintain the highest standards of business integrity and, accordingly, if Distributor has any cause for concern regarding any business practices these should be reported to Cisco at [EMAIL ADDRESS] or by Fax to [FAX NUMBER].

21.4 Distributor shall use its best efforts to regularly and continuously inform Cisco of any requirements under any Applicable Laws that directly or indirectly affect this Agreement, the sale, use and distribution of Products, or Cisco's trade name, trademarks or other commercial, industrial or intellectual property interests, including, but not limited to, certification or type approval of the Products from the proper authorities in the Territory.

22.0 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, AND EXCEPT FOR LIABILITY ARISING OUT OF DISTRIBUTOR'S BREACH OF SECTION 9 (PROPRIETARY RIGHTS AND SOFTWARE LICENSING) OR EXHIBIT C (SOFTWARE LICENSE AGREEMENT), OR AMOUNTS DUE FOR PRODUCTS AND SERVICES PURCHASED WITH RESPECT TO THE PAYMENT OF WHICH NO BONA FIDE DISPUTE EXISTS, ALL LIABILITY OF EACH PARTY, INCLUDING EACH PARTY'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS COLLECTIVELY, FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED SEPARATELY FOR PRODUCTS AND SERVICES PURCHASES TO THE GREATER OF I) [*****] OR (ll)THE MONEY PAID TO CISCO FOR PRODUCTS OR FOR SERVICES, SEPARATELY AND AS APPLICABLE, UNDER THIS AGREEMENT DURING THE [*****] PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES FIRST GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY FOR PRODUCT AND SERVICES ARE CUMULATIVE AND NOT PER-INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).

23.0 CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR LIABILITY ARISING OUT OF OR IN CONNECTION WITH DISTRIBUTOR'S BREACH OF SECTION 9 (PROPRIETARY RIGHTS AND SOFTWARE LICENSING) OR EXHIBIT C (SOFTWARE LICENSE AGREEMENT), IN NO EVENT SHALL EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.

24.0 GENERAL INDEMNIFICATION Each party shall defend, indemnify and hold harmless the other, and their respective officers, directors, employees, and agents from and against any and all claims, losses, liabilities, damages, and expenses (including, without limitation, reasonable attorneys' fees), including without limitation, those based on contract or tort, arising out of or in connection with a claim, suit or proceeding brought by a third party based upon bodily injury (including death) or damage to tangible personal property (not including lost or damaged data) arising from the negligent or intentional acts or omissions of the indemnifying party or its subcontractors, or the officers, directors, employees, agents, successors and assigns of any of them. In the event that the indemnified party's or a third party's negligent or intentional acts or omissions contributed to cause the injury or damage for which a claim of indemnity is being asserted against the indemnifying party hereunder, the damages and expenses (including, without limitation, reasonable attorneys' fees) shall be allocated or reallocated, as the case may be, between the indemnified party, the indemnifying party and any other party bearing responsibility in such proportion as appropriately reflects the relative fault of such parties, or their subcontractors, or the officers, directors, employees, agents, successors and assigns of any of them, and the liability of the indemnifying party shall be proportionately reduced.

The foregoing indemnification obligations are conditioned upon the indemnified party promptly notifying the indemnifying party in writing of the claim, suit or proceeding for which the indemnifying party is obligated under this Section 24, cooperating with, assisting and providing information to, the indemnifying party as reasonably required, and granting the indemnifying party the exclusive right to defend or settle such claim, suit or proceeding.

25.0 INSURANCE (a) Each party shall be responsible for maintaining Worker's Compensation insurance in the statutory amounts required by the applicable state laws.

(b) Each party shall maintain Commercial General Liability insurance with bodily injury and property damage limits of $[*****] per occurrence and $[*****] aggregate. Such insurance shall (a) provide for contractual liability coverage, (b) provide for cross liability coverage, and (c) name the other party and its subcontractors, as well as the directors, officers, employees, agents, successors and assigns of all of them, as additional insureds, but only to the extent of liabilities falling within the indemnity obligations of the other party pursuant to the terms of Section 24 in this Agreement.

26.0 REQUIREMENTS FOR RESELLERS 26.1 [*****]

26.2 [*****]

27.0 GENERAL PROVISIONS. 27.1 Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of New York, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law, and the state and federal courts of California shall have jurisdiction over any claim arising under this Agreement. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's intellectual property or proprietary rights.

27.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including without limitation acts of God, earthquakes, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, acts of terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party's performance.

27.3 No Waiver. The waiver by either party of any right provided under this Agreement shall

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.

27.4 Assignment. Distributor may not assign or delegate its rights or obligations under this Agreement (other than (i) the right to receive any amount due, which shall be freely assignable, or (ii) to Distributor's parent or majority-owned subsidiary company of sufficient net worth to meet any potential liability under this Agreement) without the prior written consent of Cisco, such consent not to be unreasonably withheld or delayed, provided that any such assignment shall not relieve Distributor of any obligation to pay monies that were owed Cisco prior to the date of the assignment.

27.5 Severability. In the event that one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice with immediate effect to the other.

27.6 Attorneys' Fees. In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive expiration or termination and shall not be merged into any such judgment

27.7 No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

27.8 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt. All communications will be sent to the addresses set forth on the cover sheet of this Agreement or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph. Notwithstanding the foregoing, notices regarding general changes in product status, pricing, policies, financial transactions or programs may also be made by posting on Cisco.com or delivery by e-mail or fax, as applicable. Cisco shall use commercially reasonable efforts to provide Distributor [*****] notice when introducing new Programs or Product or modifying Product pricing. Any notice regarding discontinuation of Product shall be pursuant to Cisco's then-current End of Life Policy, as found at http://www.cisco.com/en/US/products/products end-of-life policy.html. A current copy of this policy, as of the Effective Date of this Agreement, is attached hereto as Exhibit G. [*****].

27.9 Non-exclusive Market and Purchase Rights. It is expressly understood and agreed that this Agreement does not grant to Cisco or Distributor an exclusive right to purchase or sell Products and shall not prevent either party from developing or acquiring or selling competing Products of other vendors or customers.

27.10 Survival. Sections 6.0 (Payment), 10.0 (Limited Warranty), 19.0 (Confidential Information), 15.0 (Patent and Copyright Infringement), 18 (Term and Termination), 17.0 (Reports and Records), 20.0 (Export Restrictions), 22.0 (Limitation of Liability), 23.0 (Consequential Damages Waiver), 27.0 (General) and the license to use the Software set out in Exhibit C (Software License Agreement) (subject to the termination provisions set forth in Section 18.0) shall survive the termination of this Agreement.

27.11 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument. A validly executed counterpart that is delivered by

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

one party to the other via electronic transmission (a Counterpart Image) shall be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. In the event that a party delivers a Counterpart Image in place of an originally-executed counterpart, such party shall retain the originally-executed counterpart in its files for at least the duration of the Term hereof.

27.12 Headings. Headings of sections have been added solely for convenience of reference and shall not be deemed part of this Agreement.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT A TERRITORY

Territory: The United States, excluding its territories.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT B VALUE ADDED DISTRIBUTOR SUPPORT EXHIBIT

1.0 DEFINITIONS. Capitalized terms used in this Exhibit B have the meanings assigned to those terms in Section 1.0 of the Nonexclusive Value Added Distributor Agreement Terms and Conditions. Additional capitalized terms and the definitions assigned to those terms in this Exhibit B follow:

CCO means Cisco Connection Online, Cisco's online information web server.

Customer means End Users and Resellers.

Standard Business Hours means 6:00 AM to 6:00 PM Pacific Standard Time Monday through Friday, excluding Cisco-observed holidays, in the U.S. and Canada and outside the U.S. and Canada, means 8:00 AM to 6:00 PM Australia's Eastern Standard Time and Central European Time, Monday through Friday, excluding local Cisco-observed holidays.

TAC means Cisco's Technical Assistance Center.

2.0 CISCO RIGHTS AND OBLIGATIONS. For Products purchased under the Agreement, Cisco provides the services described below. [*****]

2.1 CCO Access. Cisco will provide DISTRIBUTOR with partner-level access to CCO.

2.2 Technical Support. [*****].

2.3 Updates. [*****].

2.4 Hardware Support. 2.4.1 Return for Replacement. During the Cisco warranty period, DISTRIBUTOR may return failed Product to Cisco for replacement. Cisco will use commercially reasonable efforts to ship a replacement within [*****] days after receipt of the failed Product from DISTRIBUTOR. After the end of the warranty period, parts will be charged at Cisco's then-current rates.

2.4.2 DISTRIBUTOR may request advance replacement delivery of replacement parts (Cisco will send the part upon DISTRIBUTOR's receipt of an RMA number) at Cisco's then-current Advance Replacement charge.

2.4.3 Product used for replacement may be new or equivalent to new, at Cisco's discretion.

2.5 Cisco Brand Services Option. Cisco will make available for purchase by DISTRIBUTOR, all appropriate Cisco Brand support Products for Distributor's internal use and for resale to Resellers. This option to resell Cisco brand services whereby services are delivered directly by Cisco to the End User is available in accordance with Cisco's then-current packaged service resale program. Availability of Cisco brand services is subject to geographic limitations. Information on w h e r e  s u c h  s e r v i c e s  a r e  a v a i l a b l e  f o r  r e s a l e ,  a s  w e l l  a s  t h e  p r o c e s s  f o r  r e s e l l i n g  C i s c o  b r a n d  s e r v i c e s  i s  l o c a t e d  a t http://www.cisco.com/warp/cproreg/45/index.html.

3.0 DISTRIBUTOR RIGHTS AND OBLIGATIONS. 3.1 Prioritization and Escalation Guideline. DISTRIBUTOR will escalate problems to Cisco pursuant to the Escalation and Prioritization Guideline (Appendix A).

3.2 Spare Parts. DISTRIBUTOR shall maintain sufficient spare parts inventory to support its Customer base for a one-month period under normal circumstances. DISTRIBUTOR shall maintain adequate manpower and facilities to assure prompt handling of inquiries, orders and shipments for Products.

3.3 Warranty Service. DISTRIBUTOR shall provide to its Resellers, [*****] all warranty service for a minimum

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

of the warranty period set forth in the published Product warranty provided with the original Product. Such warranty shall commence upon shipment to the End User. Warranty service will consist of Software and Hardware replacement service as follows:

3.3.1 Software Service. DISTRIBUTOR will use reasonable efforts to provide work​ around solutions or implement a Cisco-provided patch. DISTRIBUTOR will use reasonable effort to make latest release of all Cisco Software available to its resellers.

3.3.2 Hardware Advance Replacement. DISTRIBUTOR will ship replacement parts and/or Product to its Resellers in accordance with Cisco's then- current published Product warranty applicable to the particular Product.

3.4 Returns Coordination. DISTRIBUTOR will comply with the following: 3.4.1 DISTRIBUTOR shall coordinate the return of all failed parts and/or Product, freight and insurance prepaid, to the Cisco repair center specified by Cisco.

3.4.2 DISTRIBUTOR shall comply with the following RMA procedure: 3.4.2.1 DISTRIBUTOR will ensure all Products are properly packaged prior to being shipped, and will include a written description of the failure and specification of any changes or alterations made to the Product. Product returned to Cisco will conform in quantity and serial number to the RMA request.

3.4.2.2 DISTRIBUTOR shall tag each Product returned with the RMA transaction number and a brief description of the problem.

3.4.2.3 Cisco will not accept any Product returned which is not accompanied by an RMA number.

3.4.3 Title and risk of loss to failed Product and parts transfers to Cisco upon delivery to the Cisco repair center specified by Cisco.

3.5 Reseller Support. DISTRIBUTOR will ensure Reseller has all appropriate support as follows: 3.5.1 DISTRIBUTOR shall provide competent technical support staff to support the Product so as to ensure that the Reseller is able to provide the necessary support to the End User Reseller.

3.5.2 Reseller Frontline Support. DISTRIBUTOR will use best efforts to ensure that its Resellers provide high quality front-line support.

3.5.3 [*****] Cisco is not responsible for any claims arising from failure by Distributor's Resellers to provide this support.

3.5.4 Resale of Cisco Brand Services. Where available, DISTRIBUTOR will offer for purchase by its Resellers, all appropriate Cisco brand support products through its normal products availability process.

4.0 SERVICES NOT COVERED UNDER THIS EXHIBIT. 4.1 New Releases or Major Releases for Software.

4.2 Customization of existing Software for non-standard applications.

4.3 Support or replacement of Product that is altered, modified, mishandled, destroyed or damaged by natural causes or damaged during unauthorized use.

4.4 Software problems resulting from third party equipment or causes beyond Cisco's control.

4.5 Any hardware upgrade of Product required to accept Updates.

5.0 TERMINATION. Upon expiration or termination of the Agreement, (a) all rights and licenses of DISTRIBUTOR under this Support Exhibit shall terminate, (b) DISTRIBUTOR shall immediately discontinue all representations that DISTRIBUTOR

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

provides maintenance services for Cisco Product, and (c) DISTRIBUTOR access to CCO shall terminate.

6.0 SOFTWARE LICENSE. DISTRIBUTOR acknowledges that it may receive Software as a result of services provided under this Agreement. DISTRIBUTOR agrees that it is licensed to distribute such Software only on Product covered under the services and subject to the terms and conditions of this Agreement and the Software license granted with the original acquisition. Except as otherwise specified in this Exhibit, DISTRIBUTOR shall not copy, in whole or in part, Software or documentation; modify the Software, reverse compile or reverse assemble all or any portion of the Software; or rent, lease, distribute, sell, or create derivative works of the Software.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

APPENDIX 1 CISCO PROBLEM PRIORITIZATION AND ESCALATION GUIDELINE To ensure that all problems are reported in a standard format, Cisco has established the following problem priority definitions. These definitions will assist Cisco in allocating the appropriate resources to resolve problems. Distributor must assign a priority to all problems submitted to Cisco. [*****]

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT D SCANSOURCE FREIGHT POLICY

TO: All SUPPLIERS SUBJECT: ROUTING INSTRUCTIONS In order to mm1m1ze inbound transportation cost, and to maximize control over transit time, tracing, and expediting, this routing guide has been issued. These instructions supercede all previous shipping instructions and are to be retained for ready reference.

For shipments of Catalyst Telecom and Paracon products: Contact:

Melinda Hamilton, Receiving Supervisor Phone: (800) 854-9570 ext. 8187 Fax: (901) 369-7876 Email: melinda.hamilton@partnerservicesinc.com

Ship to address: ScanSource, Inc. 4020 Quest Way, Ste. 114 Memphis, TN. 38115 Receiving hours: 7:00 am - 2:00 pm

For shipments of ScanSource and ScanSource Security products: Contact:

Deborah Lucas, Receiving Manager

Phone: (800) 854-9570 ext. 8111 Fax: (901) 367-0666 Email: deborah.lucas@partnerservicesinc.com

Ship to address: ScanSource, Inc. 4100 Quest Way Memphis, TN. 38115 Receiving hours 7:00 am - 12:00 pm (noon)

Note: A packing slip/manifest must be included with each shipment. It should include: a) A listing of products and quantities shipped b) Purchase order number (this must also show on the bill of lading) c) Date shipped d) Name of carrier e) Tracking or pro number

Please comply with the following instructions when transportation is our responsibility: 1. All freight charges assigned to ScanSource must be shipped freight collect. For UPS shipments ship bill recipient. Please consolidate all of one day's shipments on one bill of lading. Exceptions will be charged back. Cisco may accomplish this by leveraging an order grouping process and setting up internal tools accordingly. OG will only be available for LTL or TL carriers. In order to support OG, ScanSource must include a LTL and TL carriers in their routing config in SRC tool. If combined shipments do not meet the minimum requirement to ship LTL or TL (i.e. number pieces, min weight) then no grouping will be done. 2. Do not insure shipments or declare value for carriage. 3. Each bill of lading must display the total number of cartons in the shipment, i.e. 24 cartons on 1 pallet. Bill of lading must be filled out completely. Please accurately describe products with the appropriate NMFC code. If you do not have the NMFC information available, ask the carrier to identify it for you.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

4. Indicate our purchase order number and number of boxes on all containers and shipping documents. 5. All pallets must be standard 40 wide X 48 long four way pallets. Primary fork entry from the 40 end. 6. Banding must be plastic, no metal. 7. Stack height on pallets is 48 maximum.

All freight bills are audited, and any premium transportation charges incurred because these instructions have not been followed will be charged to Cisco. The charges will be based on the actual premium paid. ScanSource agrees to provide Cisco with advance notice in the event such a charge becomes necessary. Cisco will have the opportunity to validate any such charge prior to actually incurring same.

If pickup service, via the carrier shown below, is not available in your area or if you have any other questions concerning this guide, please contact the ScanSource Traffic Department at (901) 362-0421, Bob Balsano. Your cooperation in following this program is appreciated.

STANDARD SURFACE TRANSPORTATION

I. Shipments, not individual cartons, weighing less than 250 lbs. and meeting the weight and size restrictions, must be shipped by United Parcel Service. II. Approved motor carriers for all LTL shipments from the States shown below are listed.

CARRIER SERVICING

FedEx Freight East Toll free number for pickups (800) 874-4723 -Alabama -Arkansas -Georgia -Illinois -Indiana -Kentucky -Louisiana -Minnesota -Mississippi -Missouri -New Jersey -North Carolina -Oklahoma -South Carolina -Tennessee -Texas -Virginia -West Virginia -Wisconsin

Con-way: Arizona California Colorado Oregon Washington

ALL REMAINING STATES Yellow Freight Toll free (800) 610-6500

PREMIUM ROUTINGS

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

ScanSource Purchasing or Traffic Department must authorize use of premium freight (air, special truck, truckload) in advance. All premium shipments must state the total number of cartons in the shipment and the correct dimension of each carton.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT E

AFFILIATE LIST

The following entities are either business units of Distributor or are wholly-owned subsidiaries of Distributor. For the purposes of this Agreement, and as set forth in Section 1 (Definitions), all such entities listed below shall be referred to herein as Affiliate(s).

1. ScanSource, Inc. 2. ScanSource, Inc. d/b/a Catalyst Telecom 3. ScanSource, Inc. d/b/a Paracon 4. ScanSource Security Distribution, Inc. 5. T2 Supply, Inc.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT F

Software Transfer and Relicensing Policy September 15, 2000 This document sets forth Cisco's policy with respect to the transferability of any Cisco software (Software). A transfer occurs when: (1) the original or authorized subsequent licensee tries to convey or reassign its right to use the Software to another entity, or (2) the original lessor of Cisco used hardware (including bundled Software) (Hardware) tries to reassign the original lessee's right to use the Software to another lessee, or the lessor tries to convey or reassign its right to lease the Hardware and Software bundle to another lessor. A rental would be treated the same as the lease situation as described in item 2 above.

This policy applies to all Software whether Standalone or Embedded. Standalone Software is Software which is not required to operate the Hardware upon which it resides (i.e., ICSG software such as call center, unified messaging, network management software). Embedded Software is Software which is incorporated into the Hardware and is required for its operation (i.e., operating system software, certain features of IOS).

Policy:

Cisco's policy is that Software, whether Standalone or Embedded, is not transferable, except where a listed exception below applies, and except, of course, where Cisco's contract expressly allows it. Any other transfers will require the payment of a new license fee (see Global Price List). For products where there is no separate line item for the Software (i.e. the prices for both the Hardware and Software are bundled), and therefore, a fee cannot be determined, an exception will be made to allow for the transfer without the customer being required to obtain a new license (the customer may be required to pay an inspection fee), if (A) Software to be transferred (i) will be under a support contract provided by either Cisco or a Cisco​‐ authorized support partner or (ii) is still supported by Cisco; or (B) approval from the theatre Sales Controller has been obtained.

Use of the Software will be governed by either the original license terms and conditions in place between Cisco and the original Software licensee or by the new license between Cisco and the new user. Cisco may withhold its consent to any transfer not conforming to this policy.

License Fee:

The License Fee is generally the same amount as the fee charged for a new license or a portion of the fee of a new license, unless otherwise noted on the Global Price List.

It is the obligation of the transferor to obtain Cisco's consent and/or a new license before the transfer occurs.

Exceptions:

Provided the conditions of transfer are met as set forth below, the follow exceptions apply to the prohibition against transfer without written approval and payment of the applicable fee. These exceptions may be overridden by express terms in an applicable licensing agreement governing the transferability of Special License Software (Special License Software is the term now used in our templates to refer to ICSG Product)

Affiliate: An entity may transfer its right to use a certain piece of Software to its Affiliate. An Affiliate is another entity where at least 50.1% of its voting power is owned or controlled by the transferring entity or where as least 50.1% of the transferring entity's voting power is owned or controlled by the transferee.

Merger or Acquisition: An entity may transfer its right to use a certain piece of Software to the purchaser of all or substantially all of the capital stock of the transferor or all or substantially all of the assets of that portion of the transferor's business to which those licenses pertain. Lease: In a leasing situation where the original lessee/customer would like to buy out the equipment from the leasing company during or at the end of the lease term, the original lessee/customer may retain the license without paying a new License Fee, provided leasing company gives Cisco prior written notice. Also, if the original lessee/customer defaults under the lease and the leasing company takes the equipment back before the end of the lease term, the leasing company may transfer the license to the another lessee for the remainder of the original lease term, without paying Cisco a License Fee, upon 30 days' prior written notice to Cisco, or as soon as practicable if the equipment is re-leased before such 30- day period. If the new lease term is in

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

excess of the original lease term, the leasing company is expected to pay Cisco a new License Fee on or before the expiration date of the original lease term. [NOTE: In the situation where a leasing company leases Cisco equipment to Customer A for a specified term and at the end of the lease term, the leasing company desires to lease the same equipment to Customer B, leasing company may not transfer the license without obtaining a new license from Cisco.)].

Outsource: Customer desires to outsource the operation, support and maintenance of its network to a third party (e.g. EDS) (Third-Party Service Provider), for the benefit of that customer. As part of the outsourcing, customer transfers all of its rights, title and interest to the assets, including certain Cisco products and software licenses, to the Third-Party Service Provider. Customer may transfer the license to the Third-Party Service Provider solely for the purposes of providing services to Customer upon 30 days' prior written notice to Cisco.

All notices should be sent to sw-license@cisco.com or as indicated in the agreement between Cisco and the customer or transferor, if any.

Conditions of Transfer:

Transfers, in any event, shall only be allowed under the following conditions:

◦ The parties involved in the transfer are not in breach of the agreement governing the use of the Software or any other agreement with Cisco;

◦ Any additional services or charges incurred by Cisco as the result of any transfer shall be borne by the transferor and transferee; and

◦ The parties involved in the transfer shall provide written prior notice of a permitted transfer to Cisco and the transferee shall, in a writing to Cisco, (i) assume all of the obligations of the transferor, and (ii) agree that transferee's use of the Software shall be governed by the terms of the then-current license agreement between Cisco and transferor or, at Cisco's sole discretion, by the terms of Cisco's then-current standard license agreement.

Questions?

Any questions or comments regarding this policy should be sent to sw-license@cisco.com.

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

EXHIBIT G

Cisco End of Life Policy

Products reach the end of their Product Life Cycle for a number of reasons. These reasons may be due to market demands, technology innovation and development driving changes in the product, or the products simply mature over time and are replaced by functionally richer technology. While this is an established part of the overall product life cycle, Cisco Systems recognizes that end-of-life milestones often prompt companies to review the way in which such end-of-sale and end-of-life milestones impact the Cisco products in their networks. With that in mind, we have set out below Cisco's end-of-life policy to help customers better manage their end-of-life transition and to understand the role that Cisco can play in helping to migrate to alternative Cisco platforms and technology.

The End of Life Policy only applies to End of Life and End of Sale announcements made in all Theaters on or after November 30, 2002 for all Cisco product lines. The Policy does not apply to product that is already subject to an End of Life and/or End of Sale announcement. The general policy guidelines are:

1. As a general rule, Cisco will provide 6 months' notice of the affected product's end-of-sale date and/or the last day when the affected product can be ordered. This notice will appear on Cisco.com site (http://www.cisco.com/en/US/products/prod_end_of_life.html) and we encourage you to visit this site regularly as it contains useful information regarding Cisco's end-of-life program. Sign up to receive notification here: http://www.cisco.com/pcgi-bin/Support/FieldNoticeTool/field-notice

2. Access to Cisco's Technical Assistance Center (TAC) will be available 24 hours a day, seven days a week for a period of 5 years from the end-of-sale date for hardware and operating system software issues and for a period of 3 years from the end-of-sale date for application software issues.

3. Spares or replacement parts for hardware will be available for a period of 5 years from the end-of​ sale date. We will provide spares and replacement parts in accordance with our Return Materials Authorization (RMA) process.

4. Software support will be as follows

a. For the first year following the end-of-sale date, we will provide bug fixes, maintenance releases, workarounds, or patches for critical bugs reported via the TAC or Cisco.com Web site.

b. After the first year and for Operating System SW -where available- we will provide bug fixes, maintenance releases, workarounds or patches for a period of 4 years for operating system software. Bear in mind that it may be necessary to use software upgrade release to correct a reported problem.

c. After the first year and for Application SW -where available - we will provide bug fixes, maintenance releases, workarounds or patches for a period of 2 years for application software. Bear in mind that it may be necessary to use software upgrade release to correct a reported problem.

5. You will need to ensure that you have a current and fully paid support contract with Cisco. Please contact your Support Account Manager regarding fees payable during the end-of-life period so that we can support you right through the end-of-life transition period.

6. Below are guidelines that should be followed to ensure that you receive effective support for the affected products within your network:

a. For hardware or software that is not covered under a service contract, customers may add the product(s) to a current contract or purchase a new contract until 12 months after the end-of-sale date.

b. Service contracts that have not been renewed or have lapsed after 12 months of end-of​ sale date are not re-newable.

c. Renewal of your service contract will generally be available until the last year of support, but will not extend

Source: SCANSOURCE, INC., 10-K, 8/22/2019





Exhibit 10.38

beyond the last date of support.

The end-of-life milestones and Cisco commitments are presented in Table 1.

Table 1. Standard Guideline for End-of-Life Milestones Milestone - 6 mos Day 0 1 Year 2 Year 3 Year 4 year 5 Year

End-of-sale date

End-of-Sale Notice Period

Operating System Software Maintenance Support See 4(a) See 4(b) above

Add or attach new service contracts

Renew service contracts - for HW & Operating System SW

Hardware Repair or Replacement

Customer Service and Support of HW & Operating System SW (TAC access & support)

Application Software maintenance support See 4(a) See 4(c) above

Renew service contracts - for Application SW

Here is an explanation of some of the terms that we have used in this notice: End of Product Life Cycle: A process that guides the final business operations associated with the product life cycle. The end-of-life process consists of a series of technical and business milestones and activities that, once completed, make a product obsolete. Once obsolete, the product is not sold, manufactured, improved, repaired, maintained, or supported.

End-of-sale date: The last date to order the product through Cisco point-of-sale mechanisms. The product is no longer for sale.

Hardware: The physical product and its physical components.

Operating System Software: Cisco operating system software that runs on Cisco hardware Application software: Cisco software that requires the presence of some non-Cisco operating system software.

Software Maintenance support: The time period that Cisco may release any software maintenance releases or bug fixes to the software product. After this date, Cisco Engineering will no longer develop, repair, maintain, or test the product software.

Source: SCANSOURCE, INC., 10-K, 8/22/2019 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Answer: 51619


Question: Exhibit 10.4

Execution Version

GAS TRANSPORTATION AGREEMENT

This Gas Transportation Agreement (this Agreement) is hereby made and entered into on the 14t h day of April, 2015 (the Effective Date) by and between PennTex North Louisiana Operating, LLC, a Delaware limited liability company (Transporter), and MRD Operating LLC, a Delaware limited liability company (Customer). Hereinafter, Transporter and Customer may sometimes be referred to collectively as the Parties and individually as a Party.

WITNESSETH

WHEREAS, Transporter owns and operates a natural gas transportation system and related facilities; and

WHEREAS, Customer owns or controls, and has the right, to deliver Gas (as hereinafter defined) for transportation and desires to have Transporter provide such service under the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Parties covenant and agree as follows:

Article I. Definitions

For the purposes of this Agreement, the following definitions have the meanings as set forth below:

Affiliate shall mean, when used with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For this purpose, control of any Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, by ownership of voting interest, by contract or otherwise. For the purposes of this Agreement, (i) with respect to PennTex Midstream Partners, LLC and its subsidiaries, the term Affiliate shall exclude Memorial Resource Development Corp. and each of its subsidiaries and (ii) with respect to Memorial Resource Development Corp. and its subsidiaries, the term Affiliate shall exclude PennTex Midstream Partners, LLC and each of its subsidiaries.

AMI/MEA Agreement shall mean that certain Amended and Restated Area of Mutual Interest and Midstream Exclusivity Agreement dated April 14, 2015 among PennTex North Louisiana, LLC, Customer, PennTex NLA Holdings, LLC and MRD WHR LA Midstream LLC, as such agreement may be amended, supplemented or otherwise modified from time to time.

Btu shall mean one British thermal unit, the amount of heat required to raise the temperature of one pound of water one degree Fahrenheit at standard reference conditions.

Business Day shall mean any day (other than a Saturday or Sunday) on which commercial banking institutions in Houston, Texas are generally open for business.

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Cash-out Price shall have the meaning set forth for such term in Article IV.

Central Clock Time shall mean the current time in the Central Time Zone taking into consideration the seasonal changes back and forth between Daylight Savings and Standard time.

Commencement Date shall be the first day of the Month following the date Transporter notifies Customer that (i) the Transportation System is operational to the extent necessary to commence commercial service with respect to the receipt of Customer Gas at the Point of Receipt at the tailgate of the Lincoln Parish Plant and delivery of such Gas to the Points of Delivery located downstream of the Lincoln Parish Plant, (ii) the Lincoln Parish Plant is operational to the extent necessary to commence commercial service with respect to the receipt and processing of Customer Gas, and (iii) the Points of Delivery listed on Exhibit A that are owned by Transporter or its Affiliate are operational and all necessary interconnect agreements with Interconnecting Pipelines necessary to deliver Gas to such Points of Delivery are in effect to the extent necessary to commence commercial service with respect to the delivery (but, for the avoidance of doubt, not the further downstream transportation) of Customer's Gas. Transporter will not be responsible for delays to the Commencement Date due to the action or inaction of Customer or Third Party Operators.

Commencement Date Facilities shall have the meaning given to such term in Article II.

Contract Year shall mean a period commencing at 9:00 a.m., Central Clock Time, on the Commencement Date and ending at 9:00 a.m., Central Clock Time on the same day and calendar month of the following calendar year and thereafter for succeeding periods of twelve (12) consecutive Months each.

Customer shall have the meaning given to such term in the preamble of this Agreement.

Customer's Firm Service Gas shall mean, an amount of Customer Gas equal to 400,000 MMBtu per Day; provided, however, (y) Customer's Firm Service Gas shall be increased by the additional amount of Transportation System capacity provided pursuant to a New Facility, and (z) if any Plant described in clause (iii) of the definition of Plants exists, Customer's Firm Service Gas shall be increased by the amount of Gas Customer is committed to deliver to such Plant.

Customer Gas shall mean Gas delivered by or on behalf of Customer for transportation on the Transportation System pursuant to this Agreement.

Day or Daily shall mean a period of hours, commencing at 9:00 a.m., Central Clock Time, on a calendar day and ending at 9:00 a.m., Central Clock Time, on the next succeeding calendar day.

Default Interest Rate shall mean the U.S. Prime Rate (as published in the Money Rates table of The Wall Street Journal, Eastern Edition) applicable on the first Business Day prior to the due date of payment and thereafter on the first Business Day of each succeeding calendar month (or, if such rate exceeds the maximum permissible rate under applicable law, the maximum rate permitted by such applicable law).   2

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Effective Date shall have the meaning given to such term in the preamble of this Agreement.

Equivalent Quantities shall mean, on any Day, a quantity of Gas (expressed in MMBtu) that has a Thermal Content equal to the Thermal Content of Customer Gas received from Customer at the Points of Receipt on that Day, less the Thermal Content of System Fuel & LUAF allocated to such Customer Gas for such Day.

Firm Service shall mean service for which Transporter is contractually entitled to interrupt its performance only to the extent (i) that such performance is excused pursuant to the provisions of this Agreement relating to Force Majeure, (ii) of specified periods of maintenance, or (iii) that Transporter determines that the operation of all or any portion of its facilities will cause injury or harm to persons or property or to the integrity of its facilities, and with respect to each of (i), (ii) or (iii), only to the extent that Transporter has curtailed all service of the same priority on a pro rata basis in accordance with Article V.

Firm Service Gas shall mean all Gas entitled to Firm Service on the Transportation System, including, without limitation, Customer's Firm Service Gas.

Force Majeure shall have the meaning given to such term in Article X.

Gas shall mean any mixture of gaseous hydrocarbons, consisting essentially of methane and heavier hydrocarbons and inert and noncombustible gases that are extracted from the subsurface of the earth.

Governmental Authority shall mean any federal, state, local, municipal, tribal or other government; any governmental, regulatory or administrative agency, commission, body or other authority or entitled to any administrative, executive, judicial, legislative, regulatory or taxing authority or power; and any court or governmental tribunal, including any tribal authority having or asserting jurisdiction.

Gross Heating Value shall mean the number of Btus produced by the complete combustion in air, at constant pressure of one (1) cubic foot of Gas, at a base temperature of sixty degrees Fahrenheit (60°F) and at a reference pressure base equal to 14.65 psia, with air of the temperature and pressure of the Gas, after the products of combustion are cooled to the initial temperature of the Gas, and after the air and water formed by the combustion is condensed to the liquid state. The gross heating value of the Gas shall be corrected for water vapor under testing conditions to the actual water vapor content of the Gas being delivered; provided, however, if the actual water vapor content is seven (7) pounds per 1,000,000 standard cubic feet of Gas or less, the Gas shall be deemed dry and no water vapor correction shall be made.

Imbalance shall have the meaning set forth for such term in Article IV.

Interconnecting Pipelines means any pipeline connected to the Transportation System for the further transportation of Gas downstream of the Transportation System.   3

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Interruptible Service shall mean service for which Transporter is contractually entitled to interrupt its performance for any reason, including, without limitation, (i) the overall demand for services in the applicable facilities exceeding Transporter's capacity therein, (ii) an event of force majeure, (iii) maintenance or (iv) Transporter determines that the operation of all or any portion of its facilities will cause injury or harm to persons or property or to the integrity of its facilities.

Interruptible Service Gas shall mean all Gas received by Transporter into the Transportation System that is not Firm Service Gas.

Lincoln Parish Plant shall mean Transporter's gas processing plant located in Lincoln Parish, Louisiana.

Mcf shall mean one thousand cubic feet of Gas at standard base conditions of 60°F and 14.73 psia.

Measurement Facility shall mean the valves, fittings, piping, meters, transmitters and other associated measurement equipment located at a Point of Receipt or a Point of Delivery which provides custody transfer volumes. Measurement Facilities shall mean, collectively, each such Measurement Facility.

MMBtu shall mean one million (1,000,000) Btus.

Month or Monthly shall mean a period of time beginning at 9:00 a.m., Central Clock Time on the first Day of the calendar month and ending at 9:00 a.m., Central Clock Time on the first Day of the next succeeding calendar month.

Mount Olive Plant shall mean Transporter's gas processing plant located in Mount Olive, Lincoln Parish, Louisiana that is Transporter's next gas processing plant constructed after the Lincoln Parish Plant.

Negative Imbalance shall have the meaning set forth for such term in Article IV.

New Facility shall have the meaning set forth for such term in Article II.

Parties shall have the meaning given to such term in the preamble of this Agreement.

Party shall have the meaning given to such term in the preamble of this Agreement.

Performance Assurance shall have the meaning given to such term in Article XIV.

Person shall mean any individual or any corporation, company, partnership, limited partnership, limited liability company, trust, estate, Governmental Authority or other entity.

Plants shall mean (i) the Lincoln Parish Plant, (ii) the Mount Olive Plant and (iii) any other gas processing plant owned by Transporter or its Affiliate that is capable of receiving Customer Gas and redelivering such Gas to the Transportation System.   4

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Point of Delivery shall mean the custody transfer meter at the outlet of Transporter's facilities at the point of interconnection between the Transportation System and Interconnecting Pipelines or other facilities. Points of Delivery shall mean, collectively, each Point of Delivery. As of the Effective Date, the Points of Delivery, and the maximum available capacity thereof, are set forth on Exhibit B.

Point of Receipt shall mean each custody transfer meter at the tailgate of the Plants from which Customer Gas is received into the Transportation System. Points of Receipt shall mean, collectively, each Point of Receipt. As of the Effective Date, the Points of Receipt, and the maximum available capacity thereof, are set forth on Exhibit B.

Positive Imbalance shall have the meaning set forth for such term in Article IV.

Service Type shall mean the type of service provided for Gas delivered hereunder, either Firm Service or Interruptible Service.

Services shall mean the transportation and, if applicable, compression services provided by Transporter to Customer hereunder.

System Fuel & LUAF shall mean, for any period of calculation, (i) Customer's share of Gas or fuel equivalents (electricity or other energy sources converted to their Btu equivalent) used by Transporter to deliver Customer's Gas from the Point(s) of Receipt to the Point(s) of Delivery on the Transportation System during such period, and (ii) Gas lost and unaccounted for on the Transportation System during such period.

Taxes shall mean any or all current or future taxes, fees, levies, charges, assessments and/or other impositions levied, charged, imposed, assessed or collected by any Governmental Authority having jurisdiction. For the avoidance of doubt, the term Taxes shall not include any current or future taxes, fees, levies, charges, assessments and/or other impositions levied, charged, imposed, assessed or collected with respect to the Transportation System or any of Transporter's other facilities, including without limitation, Transporter's natural gas processing plants.

Term shall have the meaning given to such term in Article XV.

Thermal Content means, with respect to Gas, the product of (i) a volume of Gas and (ii) the Gross Heating Value of such Gas, adjusted to a same pressure base of 14.73 psia, as expressed in MMBtus.

Third Party Operator means an operator of a pipeline or other facility upstream or downstream of the Transportation System, other than Transporter or its Affiliates.

Transportation Fee shall have the meaning given such term in Article VIII.

Transportation System shall mean the Commencement Date Facilities and all other equipment, devices, Measurement Facilities, pipelines and other facilities owned or operated by Transporter at or downstream of the Points of Receipt, necessary to receive Customer Gas at the Points of Receipt for transport to the Points of Delivery, and all additions, modifications, alterations, replacements, extensions, or expansions made thereto by Transporter from time to time, including, without limitation, any New Facilities pursuant to Article II hereof.   5

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Transporter shall have the meaning given to such term in the preamble of this Agreement.

Article II. Dedication, Commencement Date Facilities, Post-Commencement Date Facilities and Transporter Services

Dedication. During the Term, subject to the terms of the AMI/MEA Agreement, Customer dedicates and commits to this Agreement, and shall deliver or cause to be delivered to the Transportation System for transportation hereunder, all of Customer's owned or controlled residue Gas delivered from any of the Plants. Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that there is no minimum amount of residue Gas that must be delivered to the Transportation System hereunder; accordingly, Customer shall not have any liability (financial or otherwise) for failure to deliver any particular quantity of residue Gas to Transporter; provided, however, the foregoing sentence shall not reduce or eliminate Customer's obligation to pay the fees provided herein to the extent Services are provided hereunder.

Commencement Date Facilities. Transporter shall design, engineer, modify, construct and equip, or caused to be designed, engineered, modified, constructed and equipped, the Transportation System, including, without limitation, the facilities and equipment described on Exhibit A attached hereto (the facilities and equipment described on Exhibit A being collectively referred to as the Commencement Date Facilities).

Post-Commencement Date Facilities.

If after the Commencement Date, Customer requires an addition, modification, alteration, replacement, or expansion of the Transportation System (a New Facility), Customer will provide Transporter a written notification of such requested New Facility containing sufficient information for Transporter to estimate the cost to provide such New Facility. Although Transporter shall have no obligation to provide a requested New Facility, Transporter may, in its sole discretion, agree to construct or acquire such New Facility. The commercial terms applicable the construction or acquisition of any New Facility will be determined in accordance with the AMI/MEA Agreement. The Parties agree to make any revisions to this Agreement (including the Exhibits hereto) that are necessary to reflect any New Facility.

Transportation Services. For each Day during the Term, (i) Transporter agrees to provide Firm Service on the Transportation System for Customer Gas delivered to the Transportation System in a quantity not to exceed Customer's Firm Service Gas for such Day, and Interruptible Service for all quantities in excess of Customer's Firm Service Gas for such Day, and deliver to Customer, or for the account of Customer, at the applicable Points of Delivery, Equivalent Quantities of Customer Gas received at the Points of Receipt, and (ii) Customer, or its designee, shall accept such Equivalent Quantities of Customer Gas at the Points of Delivery.   6

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that there is no minimum amount of Customer Gas that must be delivered to the Transportation System hereunder; accordingly, Customer shall not have any liability (financial or otherwise) for failure to deliver any particular quantity of Gas to Transporter; provided, however, the foregoing sentence shall not reduce or eliminate Customer's obligation to pay the fees provided herein.

Article III. Receipt and Delivery Pressures

Pressure at Point of Receipt. Transporter will receive Customer Gas at the prevailing pressure at which such Customer Gas is delivered to the applicable Point of Receipt by the operator of the applicable Plant.

Pressure at Point of Delivery. All Customer Gas delivered by Transporter will be delivered at the prevailing pressures of the Transportation System as may exist from time to time. Transporter shall at no time be required, unless otherwise agreed in writing, to construct New Facilities or modify the Commencement Date Facilities, including by the addition of compression facilities, to effect such delivery, including, but not limited to, instances in which a facility downstream of a Point of Delivery operates at a pressure in excess of the Transportation System working pressure. For the avoidance of doubt, any New Facilities required by Customer to comply with the operating pressure of facilities located downstream of a Point of Delivery shall be subject to the provisions of Article II.

Article IV. Nominations, Confirmations and Imbalances

Nominations. Each Month during the Term, Customer shall give written notice of Customer's nomination to Transporter specifying the average daily quantity of Customer Gas Customer requests be transported during such Month and designate a person who will be responsible for coordinating notices among Customer, Transporter and Third Party Operators in accordance with these procedures. Customer shall furnish such nomination to Transporter by email or other electronic means and such nomination shall specify such information as is necessary in order to perform the Services requested by Customer. If Customer anticipates any material revision to a Monthly nomination it has provided to Transporter, Customer will notify Transporter as promptly as possible. Transporter will transport hereunder as nearly as practicable at uniform hourly and Daily rates of flow unless otherwise mutually agreed by Customer and Transporter.

Unless otherwise mutually agreed by Customer and Transporter, for Customer's initial nomination to be accepted for the first (1st) Day of any Month, Customer's nomination must be received by Transporter by 11:30 a.m. Central Clock Time on the third (3rd) Business Day prior to the last Day of the Month preceding such Month. Customer shall have the right to submit a new nomination or revise its existing nomination for any Day during such Month provided such nomination is received by Transporter prior to 11:30 a.m. Central Clock Time on the Business Day prior to the Day such new or revised nomination is requested to commence. Customer nominations received by Transporter after 11:30 a.m. Central Clock Time on the Business Day prior to the Day such new or revised service is requested to commence, or intraday nominations   7

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





for Gas flowing the same Day, may be accepted by Transporter, in its sole discretion. Such new or revised nomination shall specify Customer's anticipated service requirements for the remainder of the applicable Month.

If Customer is advised by a Third Party Operator to reduce or suspend deliveries of Customer Gas to the Transportation System, Customer shall immediately notify Transporter orally of such reduction or suspension, and shall confirm such notification in writing, and adjust its nominations in order to maintain a balanced position to the extent possible.

Confirmations. All nominations of Customer Gas shall be scheduled and implemented by Transporter on a prospective basis and only to the extent Transporter is able to confirm the receipt and delivery of such Gas with the operator(s) of the Point(s) of Delivery. If a conflict arises between Customer's new or revised nomination and an operator's confirmation, Customer understands and agrees such operator's confirmation shall control. If Customer submits a new or revised nomination to Transporter, Transporter will confirm the scheduled quantity to Customer by 3:00 Central Clock Time on the Business Day prior to the Day such new or revised nomination is requested to commence, except for intraday nominations for Gas flowing the same Day, which Transporter will confirm as soon as reasonably practicable.

Commingling. Although Customer shall retain title to Customer Gas delivered to Transporter hereunder, Customer Gas shall constitute part of the supply of Gas from all sources, and as such, Transporter shall, subject to its obligation to deliver Equivalent Quantities each Day, have the right to commingle Customer Gas with Gas of other customers. Transporter shall allocate Customer's pro rata share of each NGL Component contained in any commingled stream of Gas at any Point(s) of Delivery based on the GPMs of each NGL Component contained in Customer's Gas as measured by chromatograph or other method acceptable in the industry at the Point(s) of Receipt.

Imbalances. The term Imbalance means the cumulative difference in a Month between: (i) the quantity of Gas in MMBtu received for the account of Customer at the Point(s) of Receipt, less Customer's System Fuel & LUAF quantity, as applicable, and (ii) the quantity of Gas in MMBtu delivered for the account of Customer at the Point(s) of Delivery. After any adjustment for System Fuel & LUAF, if the Imbalance is the result of receipts at the Point(s) of Receipt exceeding the delivered (or scheduled, as applicable) quantity of Gas for Customer's account at the Point(s) of Delivery, it is a Positive Imbalance. If the Imbalance is a result of receipts at the Point(s) of Receipt being lower than the delivered quantity of Gas for Customer's account at the Point(s) of Delivery, it is a Negative Imbalance. Imbalances will be cashed out on a Monthly basis.   8

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Cash Out. The cash-out settlement price will be the monthly arithmetical average of the prices (Cash-out Price) as posted in Gas Daily's Daily Price Survey during the Month under the heading Texas Gas Transmission Corp., under the column labeled Index corresponding to the row labeled Zone 1. Transporter will pay Customer an amount that is the product of the Positive Imbalance each Month, if any, and the Cash-out Price. Customer will pay Transporter an amount that is the product of the Negative Imbalance each Month, if any, and the Cash-out Price. If the actual monthly volume varies by more than five percent (5%) from the delivered volumes for the Month, then the Cash-out Price will be adjusted as follows:



1. For Negative Imbalances, the Cash-out Price will be increased by the percentage variance, rounded up to the nearest whole percentage point, between the Point(s) of Delivery volumes and the adjusted Point(s) of Receipt volumes. (i.e., if the adjusted receipt volume from Customer is 7% less than the Point(s) of Delivery volume, then the Index Price will be increased by 7%), however in no event shall the Cash-Out Price be increased more than 10%; and



2. For Positive Imbalances, the Cash-out Price will be decreased by the percentage variance, rounded up to the nearest whole percentage point, between the Point(s) of Delivery volumes and the adjusted Point(s) of Receipt volumes. (i.e., if the adjusted receipt volume from Customer is 7% greater than the Point(s) of Delivery volume, then the Index Price will be increased by 7%), however in no event shall the Cash-Out Price be increased more than 10%.

Article V. Curtailment

If the quantity of Customer Gas and all other Gas available for delivery into the Transportation System exceeds the capacity of the Transportation System at any point, then Transporter shall interrupt or curtail receipts of Customer Gas with respect to the affected point(s) only in accordance with the following:

(a) First, Transporter shall curtail all Interruptible Service Gas prior to curtailing Firm Service Gas. In the event Transporter curtails some, but not all, Interruptible Service Gas on a particular Day, Transporter shall allocate the capacity of the Transportation System available for Interruptible Service Gas at the affected points on a pro rata basis based upon Customer's last confirmed nomination of Interruptible Service Gas hereunder and the last confirmed nominations of Interruptible Service Gas from all other shippers on the Transportation System prior to the event causing the curtailment.

(b) Second, if additional curtailments are required beyond those described in the immediately preceding clause (a), Transporter shall curtail Firm Service Gas. In the event Transporter curtails some, but not all, Firm Service Gas on a particular Day, Transporter shall allocate the capacity of the Transportation System at the affected point(s) on a pro rata basis based upon Customer's last confirmed nomination of Firm Service Gas hereunder and the last confirmed nominations of Firm Service Gas from all other shippers on the Transportation System prior to the event causing the curtailment.

Transporter shall provide Customer notice of any interruption or curtailment of the receipt of Customer Gas into the Transportation System as is reasonable under the circumstances.

Article VI. Measurement & Testing

The construction, ownership, installation, operation and maintenance of each Measurement Facility that is owned by a Person other than Transporter shall be governed by an interconnect agreement between Transporter and such Person. Each other Measurement Facility shall be constructed, installed, owned, operated and maintained by Transporter.   9

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Article VII. Gas Quality

Notwithstanding anything to the contrary in this Agreement, Customer Gas received at a Point of Receipt from one of the Plants shall be deemed to be in compliance with the applicable Gas quality specifications of the Transportation System.

Article VIII. Fees, Billing & Payment

Fees.

(a) Transportation Fee. For all Customer Gas received by Transporter at a Point of Receipt and delivered to any Point of Delivery, Customer shall pay Transporter a transportation fee of $0.04 per MMBtu.

(b) Other Services Fees. If Transporter provides any compression Services with respect to Customer Gas delivered hereunder, the fees applicable to such Services shall be as mutually agreed between the Parties. The Parties agree to supplement this Agreement with an addendum or other mutually agreeable modification to memorialize the terms applicable to the provision of any such additional Services.

Invoices and Statements. On or before the fifteenth (15th) calendar Day of each Month, Transporter shall provide to Customer an invoice and statement for the previous Month setting forth the calculation of the net amount due hereunder to Transporter for the Services provided hereunder during such previous Month.

Payment of Statements. Within fifteen (15) calendar Days following receipt of each of Transporter's invoices and statements, Customer shall make payment to Transporter of all undisputed amounts by wire transfer, in accordance with the account information provided to Customer, unless another form of payment is agreed to in writing by the Parties. Should Customer fail to make payment in full of all undisputed amounts within such time period, interest shall accrue on the unpaid balance at the Default Interest Rate or the maximum legal rate, whichever is the lesser, from the date such payment is due until the same is paid. If Customer fails to pay Transporter undisputed amounts due hereunder and such failure is not cured within ten (10) calendar Days' of written notice from Transporter to Customer, Transporter may suspend receipt and delivery of Customer Gas without prejudice to any other available remedies at law or in equity.   10

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Billing Disputes. If a good faith dispute arises as to any amount payable hereunder, payment shall nevertheless be made when due of the amount not in dispute. Such payment shall not be deemed to be a waiver of the right to recoup any overpayment. If Customer withholds payment of any disputed amount, Customer shall, within seven (7) calendar Days after receipt of the statement for the month to which the disputed amount pertains, submit to Transporter a written explanation of the dispute and any available supporting documentation. The Parties shall then cooperate in good faith to resolve such dispute as expeditiously as possible.

Audit Rights. Each Party or its designated representatives shall, upon reasonable notice to the other Party, have the right, no more frequently than two (2) times per twelve (12) consecutive calendar Months, at its own expense, at reasonable times and during normal business hours, to examine the books and records of such other Party to the extent necessary to verify the accuracy of any statement, charge, computation, or demand made under or pursuant to this Agreement. Each Party agrees to keep its records and books in accordance with generally accepted accounting practices in the oil and gas industry. Each invoice and statement shall be final as to both Parties unless questioned in writing within twenty four (24) Months following the date of such invoice or statement.

Article IX. Notices

Any notice, statement, claim or other communication required or permitted hereunder shall be in writing and shall be sent by: (i) hand delivery; (ii) United States mail with all postage fully prepaid; or (iii) courier with charges paid in accordance with the customary arrangements established by such courier, in each of the foregoing cases addressed to the Party at the following addresses, and shall be deemed given when received by the Party to whom it is addressed. The Parties opt out of electronic delivery of notices and amendments under this Agreement, except as to nominations, scheduling and imbalances, and except that this executed Agreement and executed amendments hereto may be delivered by scanning and emailing.

Transporter:

Notices and Correspondence:

PennTex North Louisiana, LLC c/o PennTex North Louisiana Operating, LLC 11931 Wickchester Lane, Suite 300 Houston, Texas 77043 Attn: Steve Moore E-mail: smoore@penntex.com

Customer:

Notices and Correspondence:

MRD Operating LLC c/o Memorial Resource Development Corp. 500 Dallas Street, Suite 1800 Houston, TX 77002 Attn: General Counsel E-mail: kroane@memorialrd.com   11

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





with a copy to:

Attn: Jeremy Bolander E-mail: Jeremy.bolander@memorialrd.com

Notices of change of address of either of the Parties shall be given in writing to the other Party in the manner aforesaid and shall be observed in the giving of all future notices, statements, payments, claims or other communications required or permitted to be given hereunder.

Article X. Force Majeure

The term Force Majeure as used herein shall mean acts of God; strikes, lockouts, or other industrial disturbances; conditions arising from a change in governmental laws, orders, rules, or regulations; acts of public enemy; wars; blockades; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; storms; floods; washouts; arrests and restraints of governments and people; civil disturbances; explosions; breakage or accident to machinery or lines of pipe; the necessity for making repairs, tests, alterations, or performing maintenance to machinery or lines of pipe; scheduled maintenance; freezing of wells or lines of pipe; partial or entire failure of wells, processing, or gasification and gas manufacturing facilities; orders or directives of, or proceedings initiated by, any Governmental Authority; and any other causes, whether of the kind herein enumerated or otherwise, not within the control of the Party claiming relief hereunder, and which by the exercise of due diligence, such Party is unable to prevent or overcome. Such term shall likewise include those instances (a) where either Transporter or Customer is required to obtain servitudes, rights-of-way, grants, permits or licenses to enable such Party to fulfill its obligations under this Agreement and is unable to acquire or experiences delays in acquiring such servitudes, rights-of-way, grants, permits or licenses, at reasonable costs, and after the exercise of reasonable diligence, and (b) the partial or entire failure or refusal of Third Party Operators to receive or deliver Gas, or increases in pressure of upstream or downstream pipelines. Force Majeure shall not include failure of Gas supply due to pricing considerations.

In the event Transporter or Customer is rendered unable, wholly or in part, by reason of force majeure to carry out its obligations under this Agreement (other than the obligation to make payment of amounts due hereunder, including without limitation, payment of fees due hereunder), it is agreed that such Party shall give notice and reasonably full particulars of such force majeure, in writing, or other electronic means to the other Party within a reasonable time after the occurrence of the cause relied on, and the obligations of the Party giving such notice, so far as they are affected by such force majeure, shall be suspended during the continuance of any inability so caused, but for no longer period, and such cause shall, so far as possible, be remedied with all reasonable dispatch.

It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the Party having the difficulty, and that the above requirement that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the opposing party when such course is inadvisable in the discretion of the Party having the difficulty.   12

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Article XI. Warranties

Customer warrants to Transporter that at the time Customer Gas is delivered to a Point of Receipt hereunder, Customer will have good title or the right to deliver such Customer Gas, and that such Customer Gas shall be free and clear of all liens and adverse claims, other than statutory liens and liens, encumbrances or claims under credit facilities or other credit arrangements in respect of borrowed money. Customer agrees, with respect to the Customer Gas delivered to Transporter hereunder, to indemnify Transporter against all suits, actions, debts, accounts, damages, costs (including attorney's fees), losses and expenses arising from or out of any adverse claims of any and all persons to or against said Customer Gas other than any lien, claim or encumbrance alleged to have arisen by, through or under Transporter or its Affiliate.

Article XII. Taxes and Surcharges

Customer shall pay, or cause to be paid, all production, severance, gross receipts, ad valorem, and similar Taxes, and all surcharges, levied or imposed on it by any Governmental Authority with respect to Customer Gas. In the event Transporter is required to pay or remit any such Tax or surcharge owed by Customer as a result of Customer Gas being transported on the Transportation System, Customer shall reimburse Transporter for such Tax or surcharge pursuant to Transporter's invoice for the same. Customer hereby agrees to indemnify, defend and hold harmless Transporter from and against any and all claims and losses arising out of or related to such Taxes or surcharges. This indemnity and defense obligation shall survive the expiration or termination of this Agreement. Transporter shall be responsible for all Taxes or surcharges levied or imposed on it by any Governmental Authority with respect to the Transportation System and Transporter's other facilities, including without limitation, Transporter's Gas gathering system, processing plants and Gas liquids pipeline system.

Article XIII. Limitation of Liability & Indemnifications

CUSTOMER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS TRANSPORTER AND TRANSPORTER'S MEMBERS, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, LOSSES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, INTEREST, COURT COSTS, REASONABLE ATTORNEYS' FEES AND EXPENSES, AND OTHER COSTS OF DEFENSE) (COLLECTIVELY, CLAIMS) RELATING TO, CAUSED BY OR ARISING OUT OF CUSTOMER'S BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT MADE BY CUSTOMER HEREUNDER, BUT NOT TO THE PROPORTIONATE EXTENT THAT SUCH CLAIM IS CAUSED BY OR RESULTS FROM OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TRANSPORTER.

TRANSPORTER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CUSTOMER AND CUSTOMER'S MEMBERS, DIRECTORS, OFFICERS, AGENTS   13

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS RELATING TO, CAUSED BY OR ARISING OUT OF (I) TRANSPORTER'S BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT MADE BY TRANSPORTER HEREUNDER, BUT NOT TO THE PROPORTIONATE EXTENT THAT SUCH CLAIM IS CAUSED BY OR RESULTS FROM OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER, AND (II) OPERATIONS CONDUCTED HEREUNDER OR IN CONNECTION HEREWITH BY TRANSPORTER TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TRANSPORTER.

NO PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, OR OTHERWISE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT LIMIT A PARTY'S RIGHT TO RECOVERY HEREUNDER FOR ANY SUCH DAMAGES TO THE EXTENT SUCH PARTY IS REQUIRED TO PAY SUCH DAMAGES TO A THIRD PARTY IN CONNECTION WITH A MATTER FOR WHICH SUCH PARTY IS OTHERWISE ENTITLED TO INDEMNIFICATION HEREUNDER. THE LIMITATIONS IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES SHALL BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.

Article XIV. Creditworthiness

If Customer has failed to pay any amount when due under this Agreement and if such non-payment is not being disputed in good faith by Customer, Transporter shall have the right to request and receive from Customer adequate assurance of performance (Performance Assurance) which shall mean credit support in a form reasonably acceptable to Transporter and in an amount and for the term reasonably acceptable to Transporter. Any of the following shall be an acceptable form of credit support:

(a) An irrevocable standby letter of credit from a bank satisfactory to Transporter;

(b) Provide a prepayment or a deposit in advance of the Month in which Services hereunder are to be provided; or

(c) A performance bond issued by a Person satisfactory to Transporter.

If the credit of Customer's guarantor is satisfactory in Transporter's opinion, a demand for Performance Assurance can be satisfied with a guarantee issued on behalf of Customer in a form acceptable to Transporter, but only for as long as the credit of Customer's guarantor continues to be acceptable to Transporter. Transporter acknowledges and agrees that Memorial Resource Development Corp. is a satisfactory guarantor.

Should Customer or its guarantor fail to provide Performance Assurance within ten (10) Business Days after receipt of written demand for such assurance, then Transporter shall have the right to suspend performance under this Agreement until such time as Customer furnishes Performance Assurance. For the avoidance of doubt, such suspension of performance by Transporter shall not relieve Customer of its obligation to make payments of amounts due hereunder, including, without limitation, payment of fees due hereunder.   14

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





If during the Term, if Transporter has failed to pay any amount when due under this Agreement and if such non-payment is not being disputed in good faith by Transporter, Customer shall have the right to request and receive from Transporter adequate Performance Assurance under similar terms and conditions as described above, including the right to suspend performance under this Agreement until such time as Transporter furnishes Performance Assurance.

Article XV. Miscellaneous

Entire Agreement. This Agreement, including any exhibits and attachments, constitutes the entire agreement between the Parties pertaining to the subject matter hereof, supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties with respect thereto, and may not be amended or modified except by a written instrument signed by both Parties expressly identifying it as an amendment or modification hereof.

Waiver. Any failure by either Party to comply with any of its obligations, agreements or conditions herein contained may only be waived in writing in an instrument specifically identified as a waiver and signed by the Party to whom such compliance is owed. No waiver of, or consent to a change in, any provision of this Agreement shall be deemed or shall constitute a waiver of, or consent to a change in, any other provisions hereof, nor shall such waiver constitute a continuing waiver unless expressly provided in the waiver.

No Third Party Beneficiaries. Except for Persons indemnified hereunder, this Agreement is not for the benefit of any third party and nothing herein, expressed or implied, confers any right or remedy upon any Person not a party hereto other than Persons which become successors or assigns pursuant the provisions hereof.

No Partnership. It is not the intention of the Parties to create, nor is there created hereby, a partnership, trust, joint venture or association. The status of each Party hereunder is solely that of an independent contractor.

Published Indices. Unless expressly provided otherwise herein, if any published price index referred to in this Agreement ceases to be published, the Parties shall mutually agree to an alternative published price index representative of the published price index referred to in this Agreement.

Headings. The headings and captions in this Agreement have been inserted for convenience of reference only and shall not define or limit any of the terms and provisions hereof.

Governing Law. This Agreement is entered into in the State of Texas and shall be governed, interpreted and construed in accordance with the laws of the State of Texas without regard to the conflicts of laws provisions thereof. Exclusive venue for any suit, action or proceeding brought by either Party in connection with this Agreement or arising out of the terms or conditions hereof shall be in the state or federal courts situated in Harris County, Texas.   15

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Agreement Subject to Laws. This Agreement is subject to all applicable state and federal laws and to all applicable orders, rules, and regulations of any Governmental Authority having jurisdiction. If either Party is ordered or required to do any act inconsistent with the provisions of this Agreement, then this Agreement shall continue nevertheless and shall be deemed modified to conform to the requirements of such law or regulation.

Restrictions on Assignment. This Agreement may not be assigned, disposed of, alienated or otherwise transferred by either Party, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except as provided below.

Permitted Assignments. Notwithstanding the foregoing, (i) either Party may assign this Agreement to an Affiliate of such Party without the consent of the other Party, (ii) either Party may pledge this Agreement to secure any credit facility or indebtedness of such Party or its Affiliates without the consent of the other Party, (iii) Transporter may assign this Agreement without Customer's consent in connection with the sale or transfer of the Transportation System, and (iv) Customer may assign or partially assign this Agreement without Transporter's consent in connection with the sale or transfer of all or part of Customer's ownership interests in the wells (or in the lands upon which such wells are located) producing Customer Gas delivered hereunder, provided that such assignee has a credit rating reasonably acceptable to Transporter at the time of such sale or transfer. In the case of transfers under clause (iv) above, the transferor shall be released from its obligations and liabilities under this Agreement to the extent of the obligations assumed by the transferee, provided that Customer's and such transferee's combined obligations to Transporter shall be no greater than Customer's obligations to Transporter prior to such transfer.

Reports to Governmental Authorities. Neither Party represents or warrants that any information it may furnish to the other Party under the provisions of this Agreement will satisfy any of the requirements that may be imposed by any applicable state or federal laws and by any applicable orders, rules, and regulations of any Governmental Authorities having jurisdiction. Further, neither Party assumes the responsibility for the making of any reports to any Governmental Authorities that are required to be made by or on behalf of the other Party.

Severability. The invalidity of any one or more provisions of this Agreement will not affect the validity of this Agreement as a whole, and in case of any such invalidity, this Agreement will be construed as if the invalid provision had not been included herein so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that one or more provisions of this Agreement are invalid, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

Expenses. Each Party shall pay its own legal fees and other costs and expenses incurred by it in connection with the execution and delivery of this Agreement.   16

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





No Inducements. No director, employee, or agent of any Party shall give or receive any commission, fee, rebate, gift, or entertainment of significant cost or value in connection with this Agreement.

Counterpart Execution. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, and all of which shall be considered one and the same instrument. Any signature delivered by a Party electronically shall be deemed an original signature.

Term and Termination. This Agreement shall commence on the Effective Date and continue in full force and effect until the end of the fifteenth (15th) Contract Year, and shall continue in full force and effect thereafter until terminated by either Party by providing thirty (30) calendar days' prior written notice of termination to the other Party (such fifteen (15) Contract Year period, as may be further extended as provided herein is referred to as the Term).

Survival. The respective indemnification obligations of the Parties set forth in this Agreement shall survive the expiration of the Term and any termination of this Agreement.

[Signature Page Follows]   17

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





This Agreement is executed by the authorized representatives of the Parties set forth below, to be effective as of the Effective Date.   CUSTOMER:

MRD OPERATING LLC

By: MEMORIAL RESOURCE DEVELOPMENT CORP., its sole member

By: /s/ Kyle Roane Name: Kyle N. Roane Title: Senior Vice President

TRANSPORTER:

PENNTEX NORTH LOUISIANA OPERATING, LLC

By: /s/ Robert O. Bond Name: Robert O. Bond Title: Chief Operating Officer

Signature Page to Gas Transportation Agreement

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Exhibit A Commencement Date Facilities

Pipeline Facilities

  •   0.9 miles of 24 pipeline between the Lincoln Parish Plant and the Points of Delivery below

  •   12 miles of 24 pipeline between the Mount Olive Plant and the Points of Delivery below (such facilities will be placed in service afterthe Commencement Date in conjunction with the Mount Olive Plant)

Points of Delivery

  •   RIGS

  •   Cardinal Arcadia Storage (owned by Transporter or its Affiliate)

Points of Receipt

  •   Lincoln Parish Plant (owned by Transporter or its Affiliate)

  •   Mount Olive Plant (owned by Transporter or its Affiliate)

Miscellaneous Appurtenant Facilities (launchers/receivers, etc.)   Exhibit A

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015





Exhibit B

I. Points of Delivery

Receipt Point Name   Transporter's Meter #   Parish/State

Maximum Volume* (in Mcf/d) RIGS Bratton Camp   10012   Lincoln Parish, LA   up to 400,000 Cardinal Arcadia Storage Bratton Camp   10011   Lincoln Parish, LA   up to 200,000

II. Points of Receipt

Delivery Point Name   Transporter's Meter #   Parish/State

Maximum Volume* (in Mcf/d) PennTex Lincoln Parish Plant   10010   Lincoln Parish, LA   up to 200,000 PennTex Mount Olive Plant   TBD   Lincoln Parish, LA   up to 200,000   * Subject to increased Maximum Volume capacity in accordance with any future expansion of an applicable Measurement Facility.

Exhibit B

Source: PENNTEX MIDSTREAM PARTNERS, LP, S-1/A, 4/16/2015 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

Answer:
38269