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Exhibit
10.47
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this
“Agreement”) dated as of September
, 2007 (the “Effective
Date”), is entered into between Catcher Holdings, Inc., a
Delaware corporation (“Catcher”), and Vivato Networks
Holdings , Inc., a Delaware corporation
(“Licensor”).
WHEREAS, Licensor and Catcher
have entered into that certain Agreement and Plan of Merger of even
date herewith (the “Merger Agreement”).
WHEREAS, in connection with
the Merger Agreement, Catcher desires to obtain an exclusive
license to the Licensed IP Rights (as defined below) and an
exclusive option to purchase the Licensed IP Rights all on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants
herein contained, the parties agree as follows:
1.1 Definitions . As
used herein (a) “Licensed IP Rights” shall mean
all patents (including all pending applications in any
jurisdiction, and rights to file applications and assert patents),
trademarks, common law trademarks, trade names, trade secrets
(including customer lists), service marks and copyrights (including
any work of authorship) that (i) claim, cover or are otherwise
related to the Technology, and (ii) Licensor owns at any time
prior to or during the term of this Agreement; and
(b) “Technology” shall mean the assets identified
on Exhibit A attached hereto and incorporated
herein.
1.2 License Grant .
Licensor hereby grants to Catcher an exclusive, worldwide, license
(with the right to grant sublicenses through multiple tiers) under
the Licensed IP Rights for all purposes, including without
limitation the right to practice all inventions and research,
develop and commercialize all products and services that are
claimed, covered or otherwise within the scope of the Licensed IP
Rights.
1.3 Maintenance and
Enforcement of Patents . Catcher shall have the exclusive right
during the term of this Agreement, to prepare, file, prosecute,
maintain and enforce the Licensed IP Rights. Licensor shall
cooperate with Catcher and provide all assistance required by
Catcher. Licensor shall immediately notify Catcher of any actual or
suspected infringement of the Licensed IP Rights of which Licensor
becomes aware.
1.4 Ongoing
Representations . During the term of this Agreement, Licensor
hereby makes the representations and warranties regarding the
Licensed IP Rights as set forth in Section 2.9 of the Merger
Agreement. Licensor shall immediately notify Catcher in writing if
there is a breach of any such representation or
warranty.
2.1 License Fees .
Except as provided in Section 2.2, Catcher shall grant to
Licensor as consideration for the License Grant one million eight
thousand 1,008,000) shares of Catcher’s Common Stock (the
“License Shares”) to be issued on the eighteen month
anniversary of the Effective Date.
2.2 Option to Purchase
. Catcher shall have the right to purchase the Licensed IP Rights
upon delivery of written notice and:
(a) payment and issuance of
the License Shares plus two thousand (2,000) shares of
Catcher’s Common Stock (together with the License Shares, the
“Shares”) to Licensor no more than ten (10) days
prior to the eighteen month anniversary of the Effective Date;
or
(b) payment and issuance of
the License Shares no more than ten (10) days following the
issuance and sale of shares of Catcher’s capital stock to
investors for aggregate proceeds (including cancellation of
indebtedness) to Catcher of not less than $7,500,000 in a single
transaction or series of related transactions.
In connection with such
purchase, Licensor shall execute and deliver to Catcher the
Assignment Agreement set forth on Exhibit B hereto
and any other documents reasonably requested by Catcher. Catcher
may elect, in its sole discretion, to purchase all of the
outstanding equity interests of Contractor in lieu of exercising
its option to purchase the Licensed IP Rights as provided in this
Section 2.2. If Catcher so elects, Contractor shall use its
best efforts to effect such a sale of all of the equity interests
of Contractor to Catcher, including the negotiation of a definitive
merger or stock purchase agreement as determined by Catcher and
obtaining all necessary approvals of its stockholder and other
third parties to such sale .
2.3 Representations .
Licensor agrees that the Shares to be issued pursuant to
Section 2 hereof are being acquired for investment and that
the Licensor will not offer, sell or otherwise dispose of the
Shares except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended (the
“Securities Act”) or any applicable state securities
laws. In addition, in connection with the issuance of the Shares,
Licensor specifically represents to Catcher by acceptance or the
Shares as follows:
(a) The Licensor is aware of
Catcher’s business affairs and financial condition, and has
acquired information about Catcher sufficient to reach an informed
and knowledgeable decision to acquire the Shares. The Licensor is
acquiring the Shares for its own account for investment purposes
only and not with a view to, or for the resale in connection with,
any “distribution” thereof in violation of the
Securities Act;
(b) The Licensor understands
that the Shares have not been registered under the Securities Act
in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the
Licensor’s investment intent as expressed herein;
(c) The Licensor further
understands that the Shares must be held indefinitely unless
subsequently registered under the Securities Act and qualified
under any applicable state securities laws, or unless exemptions
from registration and qualification are otherwise available. The
Licensor is aware of the provisions of Rule 144, promulgated under
the Securities Act; and
(d) The Licensor acknowledges
having received and reviewed Catcher’s Annual Report on Form
10-KSB for the fiscal year ended December 31, 2006 and
Catcher’s Quarterly Reports on Form 10-QSB for the fiscal
quarters ended March 31, 2007 and June 30, 2007. Catcher
shall provide Licensor with copies of its Quarterly Reports on Form
10-QSB and Annual Reports on Form 10-KSB filed since the Effective
Date in connection with the issuance of the Shares.
2.4 Registration
Rights .
(a) If (but without any
obligation to do so) Catcher proposes to register any of its stock
or other securities under the Securities Act in connection with the
public offering of such securities (other than a registration
relating solely to the sale of securities to participants in
Catcher’s stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the Act, a
registration on any form that does not include substantially the
same information as would be required to be included in a
registration statement covering the sale of the Shares, or a
registration in which the only Common Stock being registered is
Common Stock issuable upon
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