INTELLECTUAL PROPERTY LICENSE AGREEMENT

1.1

“Affiliate” shall mean any company that controls, is controlled by, or is under common control with Licensee or its successor entity.

1.2

“Confidential Information” shall mean any and all technical and non-technical information that is identified at the time of disclosure to be proprietary or confidential information of the disclosing party, including tooling, formulae, bills of material, know-how, designs, schematics, techniques, software code, mask works, technical documentation, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the disclosing party, or its present or future products, sales, suppliers, customers, employees, investors or business, whether in written, oral, graphic or electronic form.

1.3

“Documentation” shall mean the items of user documentation with respect to the Software provided to Licensee or to be provided to pursuant to the Agreement, including but not limited to the description of the functional, operational and design characteristics of the Software and the items of programming, systems and data base documentation.

1.4

“Effective Time” shall mean the closing date specified in the Merger Agreement.

1.5

“Improvements” shall mean any improvements, discoveries, developments, modifications or derivative works, whether or not patentable.

1.6

“Intellectual Property Rights” shall mean all Licensor Patents and Applications and Software, copyright rights, moral rights, trade secret rights, mask work rights, and all other intellectual and industrial property rights (excluding trade marks and service marks), whether or not registered or perfected, anywhere in the world, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues for any of the foregoing.

1.7

“Licensor Materials” shall mean the specifications, schematics, technical information, bills of materials, instructions, records, drawings, data sheets, reports, hardware, firmware and other materials and technology listed in Exhibit A.

1.8

“Licensor Patents and Applications” shall mean all unexpired U.S. and foreign patents and patent applications, and any related continuations, continuations in part, reissues, re-examinations, renewals, extensions and divisions thereof. “Licensor Patents and Applications” includes those patents and applications listed in Schedule 3.15.1(i) of the Merger Agreement.

1.9

“Merger” shall have the meaning set forth in the Merger Agreement.

1.10

“Software” shall mean the computer software programs and files, as listed in Exhibit A hereto to be provided to Licensee by Licensor pursuant to this Agreement and Licensor’s Documentation, which may be delivered to Licensee by or on behalf of Licensor.

1.11

“Source Code” shall mean the human readable source code version of the Software including, but not limited to, all corresponding source documentation, all developer’s notes, specifications, flow diagrams, release notes and build procedures, and any tools necessary to execute the build procedures or otherwise create the Software from the source code version of the Software.

2.1

Grant of License to Software and Source Code. Subject to Section 7.1 and Article 8 hereof, Licensor hereby grants to Licensee and its Affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable license, with right of sublicense, under and to all of Licensor’s Intellectual Property Rights embodied in or arising from the Licensor Patents and Applications, Software, Source Code, Licensor Materials and Documentation, to: (i) use, install, reproduce, modify and improve or have improved, make derivative works of, distribute (through multiple tiers of distribution), transmit and display the Software, or have improved and operate the Software by any number of users, on any number of computers, and at any number of sites and to use the Documentation and Licensor Materials in any manner subject to the terms and conditions of this Agreement; (ii) use, modify, enhance, translate, convert, recompile, upgrade and otherwise prepare derivative works of the Source Code; and (iii) make (including the

3.1

Promptly upon execution of this Agreement, Licensor shall deliver the Software, Source Code, Licensor Materials and Documentation to Licensee and provide Licensee with reasonable assistance with respect to the installation of the Software on Licensee’s computer systems.

3.2

Upon delivery of Software, Licensor shall deliver to Licensee at least one (1) electronic and one (1) hard copy of all generally available Documentation for such Software and Licensor Materials sufficient to enable Licensee personnel to use and to fully understand the functionality, use and operation of such Software. Licensor agrees that Licensee may copy the Documentation and Licensor Materials in order to satisfy its own reasonable internal requirements.

3.3

The Documentation specified above shall include detailed program code and documentation relating to the development, maintenance and use of the Source Code.

4.1

Subject to Section 9.3 hereof, Licensor warrants to Licensee that: (i) Licensor has all rights necessary to provide the Software, Source Code, Documentation and Licensor Materials to Licensee and to perform the services as specified in this Agreement and warrants that such Software, Source Code, Documentation, Licensor Materials and services are free of all liens, claims, encumbrances and other restrictions, except as otherwise set forth in the Merger Agreement; (ii) the Software, Source Code, Documentation, Licensor Materials and services furnished by Licensor and Licensee’s use of the same hereunder do not violate or infringe the rights of any third party or the laws or regulations of any governmental or judicial authority; (iii) Licensee shall be entitled to use and enjoy the benefit of the Software, Source Code, Documentation Licensor Materials and services, subject to and in accordance with this Agreement; (iv) Licensee’s use and possession of the Software, Source Code, Documentation, Licensor Materials and services hereunder shall not be adversely affected, interrupted or disturbed by Licensor or any entity asserting a claim under or through Licensor; (v) Licensor has all rights necessary to grant the licenses to Licensee as set forth in Article 2; and (vi) Licensee’s exercise of its rights under this Agreement will not violate the proprietary or Intellectual Property Rights of any third party.

4.2

EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND

5.1

Licensor shall indemnify, defend and hold Licensee, its Affiliates, officers, directors, employees, consultants and customers harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, action, suit or proceeding alleging infringement, breach, contravention, misuse or misappropriation of any Intellectual Property Rights or proprietary rights, including, without limitation, trademarks, service, marks, patents, copyrights, trade secrets or any similar proprietary rights, based upon the Software, Source Code, Documentation, or Licensor Materials or services furnished hereunder by Licensor or based on Licensee’s (including its respective directors, officers, employees and agents) use thereof. Licensor, at its sole cost, shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing; provided, that any such settlement or compromise shall not be made without Licensee’s consent (which consent shall not be unreasonably withheld) and shall include an unconditional release of Licensee from all liability arising out of or in relation to such action and any transactions or conduct in connection therewith.

5.2

If any Software, Source C