EXHIBIT
10.2
LICENSE
AGREEMENT
THIS AGREEMENT is entered into as of this 9th
day of April, 2007 by and among Shelton Technology, LLC, a Michigan
limited liability company, Shaotang Chen and Xiaogang Luo
(collectively, "LICENSOR") and Advanced Automation Group, LLC, a
Delaware limited liability company ("LICENSEE").
WITNESSETH:
WHEREAS, LICENSOR is the owner of the
intellectual property and technology identified more fully in
Schedule A attached hereto (the "Licensed Property");
and
WHEREAS, LICENSOR has the power and authority to
grant to LICENSEE the exclusive, worldwide (the “Licensed
Territory”), right, privilege and license to use the Licensed
Property in Licensee’s business, including, without
limitation, for the purpose of developing, manufacturing and
selling products which incorporate or are otherwise based on the
Licensed Property (the "Licensed Products”); and
WHEREAS, LICENSEE desires to obtain from
LICENSOR the exclusive worldwide right, privilege and license to
use the Licensed Property in Licensee’s business, including,
without limitation, for the purpose of developing, manufacturing
and selling products which incorporate or are otherwise based on
the Licensed Property.
NOW, THEREFORE, in consideration of the promises
and agreements set forth herein, the parties, each intending to be
legally bound hereby, do promise and agree as follows:
LICENSE
1. LICENSOR hereby grants to LICENSEE for the
period beginning on the date hereof and ending on August 31, 2008
(the “Term”), an exclusive, worldwide royalty free
right and license to use the Licensed Property in Licensee’s
business, including, without limitation, for the purpose of
developing, manufacturing, commercializing, promoting, advertising
and selling products which incorporate or are otherwise based on
the Licensed Property. The license includes, but is not limited to,
a license under any and all patents and copyrights and any
applications therefore which have been filed or may be filed in the
future with respect to the Licensed Property.
2. Subject to Section 21 hereof, all rights and
title to and interest in any improvement or enhancement developed
or discovered by LICENSEE in connection with the license granted
under Section 1 above or LICENSEE’S activities hereunder
shall be vested solely in LICENSOR and shall be deemed to be
Licensed Property.
3. The foregoing license shall be deemed to be,
for purposes of Section 365(n) of the United States Bankruptcy Code
and any foreign equivalent thereof, a license of rights to
“intellectual property” as defined therein. LICENSEE,
as licensee of such rights, shall have the rights and elections
with respect thereto as specified in the United States Bankruptcy
Code and any foreign equivalent thereof. This Agreement shall be
deemed to be an “agreement supplemental to” the license
for purposes of Section 365(n) and any foreign equivalent thereof.
If a bankruptcy proceeding is commenced by or against LICENSOR (or
any party comprising LICENSOR) and LICENSOR (or a trustee or other
party acting on its behalf) thereafter rejects this Agreement or
fails to perform all of its obligations hereunder, then LICENSEE
shall be entitled to receive, promptly upon request therefor, a
complete duplicate of (or full access to) any such intellectual
property and all embodiments thereof.
AUDIT
4. LICENSOR shall have the right, upon at least
five (5) days written notice and no more than once per calendar
year, to inspect LICENSEE's books and records and all other
documents and material in the possession of or under the control of
LICENSEE with respect to the subject matter of this Agreement at
the place or places where such records are normally retained by
LICENSEE. LICENSOR shall have free and full access thereto for such
purposes and shall be permitted to be able to make copies thereof
and extracts therefrom.
5. All books and records relative to LICENSEE's
obligations hereunder shall be maintained and kept accessible and
available to LICENSOR for inspection for at least three (3) years
after expiration or termination of this Agreement.
6. In the event that an investigation of
LICENSEE's books and records is made, certain confidential and
proprietary business information of LICENSEE may necessarily be
made available to the person or persons conducting such
investigation. It is agreed that such confidential and proprietary
business information shall be retrained in confidence by LICENSOR
and shall not be used by LICENSOR or disclosed to any third party,
or without the prior express written permission of LICENSEE unless
required by law. It is understood and agreed, however, that such
information may be used in any proceeding based on LICENSEE's
breach of any of its obligations under this Agreement.
WARRANTIES &
OBLIGATIONS
7.
LICENSOR hereby represents that
except for the purchase option set forth in Section 4 of the Master
Agreement (as defined in Section 43 of this Agreement), it is has
good and valid title to the Licensed Property, free and clear of
all Liens (as hereinafter defined) and there is no claim,
litigation, or other proceeding pending or threatened, which could
impair, limit, diminish or otherwise impact upon LICENSOR’S
right in the Licensed Property or its ability to execute and
deliver and perform its obligations hereunder or under this
Agreement. For purposes of this Agreement, the term
“Liens” shall mean any lien, encumbrance, pledge,
option, security interest, right of first refusal, mortgage,
charge, of any kind (including any conditional sale agreement) or
any subordination arrangement in favor of another
person.
8.
LICENSOR further represents and
warrants that it has the right and power to grant the licenses
granted herein and that there are no other agreements with any
other party in conflict herewith.
9.
LICENSOR further represents and
warrants that (i) none of the Licensed Property infringes any right
of any third party (ii) no person is infringing on the rights of
LICENSOR in and to any of the Licensed Property and (iii) none of
the Licensed Property is in the public domain..
10.
LICENSEE agrees that it shall be
solely responsible for the manufacture, production, sale and
distribution of any Licensed Products and will bear all related
costs associated therewith.
NOTICES, QUALITY CONTROL
& SAMPLES
11.
The licenses granted hereunder are
conditioned upon LICENSEE's full and complete compliance with the
marking provisions of any applicable trademark, patent and
copyright laws of the United States and other countries in the
Licensed Territory.
12.
The Licensed Products, as well as
all promotional, packaging and advertising material relative
thereto, shall include all appropriate legal notices are required
by LICENSEE.
13.
The Licensed Products, shall be of
a high quality which is at least equal to comparable products
manufactured and marketed by LICENSEE and in conformity with a
standard sample approved by LICENSOR.
14.
If the quality of a class of the
Licensed Products falls below such a production-run quality, as
previously approved by LICENSOR, LICENSEE shall use its reasonable
best efforts to restore such quality.
15.
Prior to the commencement of
manufacture and sale of the Licensed Products, LICENSEE shall
submit to LICENSOR, at no cost to LICENSOR and for approval as to
quality, samples of all Licensed Products which LICENSEE intends to
manufacture and sell and one (1) complete set of all promotional
and advertising material associated therewith. Such approval by
LICENSOR shall not be unreasonably withheld. Failure of LICENSOR to
approve such samples within ten (10) working days after receipt
hereof will be deemed approval. If LICENSOR should disapprove any
sample, it shall provide specific reasons for such disapproval.
Once such samples have been approved by LICENSOR, LICENSEE shall
not materially depart therefrom without LICENSOR's prior express
written consent, which shall be unreasonably withheld.