FORM OF TECHNOLOGY LICENSE AGREEMENT
EXHIBIT
10.3
THIS
TECHNOLOGY LICENSE AGREEMENT (this "Agreement")
dated
as of the 27th day of August, 2007, (the “Effective Date”) is by and between (i)
Solzon Corporation, a New Hampshire corporation ("Solzon”)
with
an address at 00X Xxxxxxxxx Xxxx. #000, Xxxxxx, XX 00000, and (ii) CYBRA
Corporation, a New York corporation ("CYBRA”)
with
an address at Xxx Xxxxxxxxx Xxxx., Xxxxxxx, Xxx Xxxx 00000.
WHEREAS,
Solzon has developed an iSeries Edge product marketed and sold as RFID
for iSeries™
(the
"Solzon
Product");
WHEREAS,
Solzon desires to facilitate the use of the Solzon Product by CYBRA; and
WHEREAS,
CYBRA desires to develop its own iSeries Edge product incorporating selected
aspects of the Solzon Product, on the terms and conditions set forth herein
(the
“CYBRA Product”).
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
herein, CYBRA and Solzon agree as follows:
1. ASSIGNMENT
OF LICENSE TO THE SOLZON ASSETS.
1.1. Assets.
Subject
to the terms and conditions set forth in this Agreement, Solzon shall assign
to
CYBRA and CYBRA shall acquire and accept the assignment of a perpetual,
world-wide license, to utilize and otherwise exploit for its benefit, to the
following assets (the "Solzon
Assets"):
(a) Selected
design elements, including architectural concepts, screen layouts and file
designs of the Solzon Product as set forth on Schedule
1
hereto;
(b) copies
of
pertinent functional documentation relating to the Solzon Assets.
1.2.
Excluded
Assets.
(a) The
Solzon Product source code is specifically excluded from the license assigned
to
CYBRA.
2.
SOLZON
LIABILITIES.
2.1. No
Assumption of Solzon Liabilities.
Notwithstanding anything in this Agreement to the contrary, CYBRA shall not
assume, and CYBRA shall not be deemed to have assumed nor agreed to pay,
perform, fulfill or discharge, any contract or agreement (whether written or
oral), liability or other obligation of Solzon, including, without limitation,
any liability relating to any income or sales tax liability, obligation or
commitment, any employment contract of Solzon, (with all such unassumed
liabilities and obligations referred to herein as the "Excluded Liabilities").
3. LICENSE
FEE.
3.1. License
Fee.
In
consideration for and as a condition to the license by Solzon to CYBRA of the
Solzon Assets, and Solzon’s agreement to provide the transitional assistance
described below, CYBRA shall pay Solzon consideration valued at
_________________ ($__________) US dollars as follows:
(a) $__________
in cash payable:
(i)
$__________ upon execution of this Agreement;
(ii)
___________ at such time of the earlier of General Availability of EdgeMagic™
Enterprise Edition, Release 1.1 (estimated to be by________________) or no
later
than one year from the Effective Date.
(b) $___________
in Restricted Common Stock of CYBRA (the "Shares"),
valued at $.75 per share, to be delivered:
(i)
___________ shares upon execution of this Agreement;
(ii)
__________ at such time of the earlier of General Availability of EdgeMagic™
Enterprise Edition, Release 1.1 (estimated to be by December 2007) or no later
than one year from the Effective Date.
4.
TRANSITION/NON-COMPETE.
4.1
Transitional
Assistance.
Solzon
shall assist CYBRA and provide xxxxxxxxxxxxx xxxxxxxxxx advice and assistance
in
building CYBRA’s EdgeMagic™ Java-Based iSeries product. CYBRA will reimburse
Solzon for its consulting assistance at rates established in the associated
Contractor Agreement for System Integration and Consulting Services. The first
_________________ ($__________) US dollars of consulting assistance, some of
which has already been provided, will be waived as a condition of this
agreement.
In
addition, Solzon will make reasonable efforts at selling the product at a
discount to be mutually arrived at between the parties, to Solzon’s licensees
and customers.
4.2
ABANDONMENT
OF DEVELOPMENT.
Solzon
will abandon any future development of the Solzon Product. For so long as Solzon
acts as a reseller of the CYBRA Product, and for a period of two years
thereafter, Solzon will abandon any future development of or any related iSeries
product. In addition, Solzon will cease all sales and marketing of the Solzon
Product and shall not transfer, license or sell the Solzon Product to any third
party. If however, the EdgeMagic™ product does not successfully launch within
one year of the Effective Date, Solzon will be released from this clause. This
covenant is a material inducement to CYBRA in entering into this
Agreement.
4.3
NON-COMPETE.
For so
long as Solzon acts as a reseller of the CYBRA Product, and for a period of
two
years thereafter, Solzon shall not compete, directly or indirectly, in the
development, sale or marketing of any iSeries products which are competitive,
or
could be competitive with the CYBRA Product, including the Solzon Product,
or
any variation thereof (“Non-Compete”). If however, the EdgeMagic™ product does
not successfully launch within one year of the Effective Date, Solzon will
be
released from this clause. This covenant is a material inducement to CYBRA
in
entering into this Agreement.
5. REPRESENTATIONS
OF SOLZON. Solzon represents and warrants to CYBRA as of the date of this
Agreement and up to the Closing Date as follows:
(a)
Solzon
is
a Corporation, duly organized, validly existing under the laws of the State
of
New Hampshire. Solzon has all requisite power and authority to enter into this
Agreement. This Agreement has been, and at the Closing will be, duly executed
and delivered by a duly authorized officer of Solzon, and this Agreement
constitutes the legal, valid and binding obligation of Solzon enforceable
against Solzon in accordance with its respective terms;
(b)
except
as
set forth herein, Solzon
has not:
sold,
assigned or transferred any of the Solzon Assets or properties; or mortgaged,
pledged or subjected to any lien, pledge, security interest, conditional sales
contract or other encumbrance of any nature whatsoever against any of the Solzon
Assets, except as set forth herein;
(c)
the
license to the Solzon Assets being assigned to CYBRA are free of all liens,
encumbrances or claims whatsoever.
6. REPRESENTATIONS
OF CYBRA. CYBRA represents and warrants to Solzon as of the date of this
Agreement and up to the Closing Date as follows:
(a) CYBRA
is
a corporation duly organized, validly existing and in good standing under the
laws of the State of New York;
(b)
CYBRA
has
the corporate power, authority and legal right to execute, deliver and perform
this Agreement. The execution, delivery and performance of this Agreement by
CYBRA have been duly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by CYBRA and constitutes the
legal, valid and binding obligation of CYBRA enforceable against it in
accordance with its terms.
7. INDEMNIFICATION.
Both parties shall indemnify and hold the other harmless for any and all
liability, to the fullest extent of the law, including but not limited to
reasonable attorney’s fees, expert fees and costs and disbursements, arising
from a breach of the representations of Solzon contained herein.
8. DEFINITIONS.
As used herein the following terms not otherwise defined have the following
respective meanings:
"Intellectual
Property":
Any
and all rights and licenses associated with the and/or relating to: (i) any
Patents and Patent applications; (ii) works of authorship, including Copyrights,
Trademarks and service marks, whether registered or at common law, as well
as
all applications that are pending or that are in the process of preparation;
(iii) confidential information, including but not limited to trade secrets
arising under common law, state law, federal law or the laws of any foreign
countries; (iv) any other proprietary rights relating to intangible property,
whether or not protectable by patent, copyright, mask work right or trade
secret; and (v) divisional, continuations, continuations-in-part, renewals,
refiles, re-examinations and extensions of the foregoing (as applicable), in
the
case of each item referred to above, and in each case with respect to any
jurisdiction in the world.
"Person":
A
corporation, an association, a partnership, a limited liability company, an
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
“General
Availability”:
the
date when the product is available and saleable to the general
market.
9. MISCELLANEOUS.
9.1. Entire Agreement.
This
Agreement and all exhibits and schedules attached hereto and thereto, contains
the entire understanding of the parties, supersedes all prior agreements and
understandings relating to the subject matter hereof and shall not be amended
except by a written instrument hereafter signed by all of the parties hereto
or
thereto.
9.2. Governing Law
and Venue.
The
validity and construction of this Agreement shall be governed by the internal
laws (and not the conflicts rules) of the State of New York. Each party to
this
Agreement hereby consents to the exclusive jurisdiction of the courts located
in
the State of New York and waives any objection to venue laid therein. Process
on
any such action or proceeding may be served on any party anywhere in the world,
in accordance with the laws of the State of New York.
9.3. Sections and Section Headings.
The
headings of sections and subsections are for reference only and shall not limit
or control the meaning thereof.
9.4. Severability.
In the
event that any covenant, condition, or other provision herein contained is
held
to be invalid, void, or illegal by any court of competent jurisdiction, the
same
shall be deemed to be severable from the remainder of this Agreement and shall
in no way affect, impair, or invalidate any other covenant, condition or other
provision contained herein.
9.5.
Expenses.
The
parties shall pay their own expenses incidental to the preparation of this
Agreement, the carrying out of the provisions of this Agreement and the
consummation of the transactions contemplated hereby.
9.6.
Waiver.
Any
term or provision of this Agreement may be waived at any time by the party
or
parties entitled to the benefit thereof by a written instrument duly executed
by
such party or parties.
9.7.
Transfer
of Shares.
The
Shares to be issued to Solzon are “restricted” shares and may not be resold or
transferred without first being registered under the Securities Act of 1933
(the
“Act”) or Solzon providing CYBRA with an opinion of counsel, acceptable to
CYBRA, stating that the sale is exempt from registration. The certificates
for
the Shares shall contain a “restrictive legend” reciting such restriction.
9.8
Restricted
Stock.
The
Shares to be issued to Solzon are restricted Shares and have not been registered
under the Securities Act of 1933, as amended (the “Act”). The Shares may only be
resold pursuant to a registration statement or exemption from registration.
After a one (1) year holding period, resales of the Shares may be made pursuant
to SEC Rule 144, provided certain conditions of the Rule are met and Solzon
files a Form 144 with respect to such resales with the SEC. Solzon is hereby
granted “piggy-back” registration rights with respect to the Shares, such rights
to apply to the next registration statement filed by the Company with the
Securities & Exchange Commission. Such rights shall expire thirteen months
from the date hereof, or at such earlier date that the Shares may be resold
without registration.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have caused this Technology License Agreement to be duly executed and delivered
as a sealed instrument as of the date and year first above written.
|
SOLZON
CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
CYBRA
CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
