Intellectual Property License Agreement

License Agreement

7.07 Form of License Agreement

Set forth below is a form of license agreement, which contemplates a license of patented technology and trade secrets to the joint venture by a participant. Because of the unique traits that any licensed intellectual property may have, it is generally not possible to rely on any single form as a definitive model. Significantly, the terms and conditions of the license could change dramatically depending on, among other things, the nature of the intellectual property being licensed to the joint venture, whether the license is exclusive or not, and the amount and method of calculating royalties, if any.

Footnotes in the License Agreement are included as commentary on the applicable provisions, and would not be included in the text of the definitive agreement.

LICENSE AGREEMENT

This License Agreement (this "Agreement"), dated as of , is by and between , a ("Participant"), and , a ("JV").

BACKGROUND

A. JV has been established by Participant and , a (the "Other Participant"), pursuant to that certain Limited Liability Company Agreement of even date herewith (the "Operating Agreement").

B. The Operating Agreement defines the business relationship of Participant and the Other Participant and provides for the commercialization of certain Technology relating to Products that Participant possesses and has the right to use.

C. The Operating Agreement provides for the issuance of membership units (the "Units") to the Participant upon the execution and delivery of this Agreement by the Participant.

D. Participant is willing to grant, and JV desires to accept, a license of the technology relating to the Products, as contemplated by the Operating Agreement, upon the terms and conditions set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and agreements set forth herein, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS.

Capitalized terms used herein shall have the meanings set forth below:

"Breaching Party" has the meaning set forth in Section 8.2.

"Confidential Information" has the meaning set forth in Section 9.1.

"Improvement" means any improvement, enhancement, refinement, derivative works, modification or other new invention or discovery, whether patentable or unpatentable, deriving from or otherwise relating to, in whole or in part, any of the claims of any of the Patents described in Exhibit A hereto, any of the Trade Secrets or the Products, including, without limitation, those relating to the physical shape, design or configuration, composition, formulation or use of a Product or the Technology or the process by which Products are manufactured.

"Indemnified Party" has the meaning set forth in Section 6.4(a).

"Indemnifying Party" has the meaning set forth in Section 6.4(a).

"Initiating Party" has the meaning set forth in Section 5.2.

"JV" has the meaning set forth in the Preamble.

"JV Improvements" has the meaning set forth in Section 3.2.

"License" has the meaning set forth in Section 2.1.

"Licensed Patents" means any and all Patents now or hereafter owned or acquired by Participant or in which Participant now holds or hereafter acquires rights that concern or relate to or are useful or necessary in the design, development, production, distribution, use or sale of Products, including, without limitation, the Patents that are described on Exhibit A hereto and all Patents obtained on Improvements.

"Losses" means any and all losses, liabilities, damages, fines, penalties, costs and expenses, including reasonable costs of investigation and reasonable attorneys, accountants and expert witness fees.

"Nonbreaching Party" has the meaning set forth in Section 8.2.

"Noninitiating Party" has the meaning set forth in Section 5.2.

"Other Indemnified Persons" has the meaning set forth in Section 6.1.

"Participant" has the meaning set forth in the Preamble.

"Participant Improvements" has the meaning set forth in Section 3.1.

"Participant Infringement Action" has the meaning set forth in Section 5.3(a).

"Patents" means unexpired patents, utility models, industrial designs, certificates of invention or similar grants of intellectual property rights that are filed, registered, issued or granted in the Territory, including without limitation, any divisionals, reissues, continuations, continuations-in-part, renewals, reexaminations, and extensions of any of the foregoing, and any applications therefor (and Patents that may issue on such applications).

"Person" means any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, governmental or political subdivision, or other legal entity or organization that has legal capacity to own property in its own name and to sue or be sued.

"Products" means .

"Sublicensee" has the meaning set forth in Section 5.3(a).

"Technology" means the Licensed Patents and the Trade Secrets (including all Improvements owned by or licensed to Participant).

"Territory" means .

"Third-Party Claim" has the meaning set forth in Section 6.4(a).

"Trade Secrets" means (i) know-how, formulas, methods, processes, systems and other proprietary information owned by or licensed to Participant concerning or relating to or that are or may be useful or necessary in the design, development, production, distribution, use, marketing or sale of any of the Products, and (ii) any Improvement or other proprietary information now or hereafter owned by or licensed to Participant that is not patentable or that Participant has elected to maintain as a Trade Secret and concerning or relating to or that is or may be useful or necessary in the design, development, production, distribution, use, marketing or sale of any of the Products.

2. THE LICENSE.

2.1 License Grant. Subject to the terms and conditions of this Agreement, Participant hereby grants to JV an irrevocable, exclusive, royalty-free, perpetual license of the Technology (the "License") to develop and create Improvements and to make, have made, use, sell, offer to sell, import into and otherwise commercialize the Products solely within the Territory. Participant shall provide JV, upon execution of this Agreement, with a complete set of documentation and materials in the possession of or under the control of Participant that embody and contain all of the existing Trade Secrets and shall use commercially reasonably efforts to ensure that all material Trade Secrets have been promptly disclosed to JV. Promptly upon the request of JV, Participant shall provide JV, in the form reasonably requested by JV, any information in the possession or under the control of Participant relating to the Technology that is reasonably requested by JV.

2.2 Sublicenses. JV shall have the unrestricted right to grant sublicenses of any or all or the rights that comprise the License to any person without the consent of Participant.

2.3 No Other Licensees. During the term of this Agreement, Participant shall not sublicense, license or otherwise grant to any Person, other than JV (or the Other Participant), the right to utilize the Technology or any part thereof to make, have made, use, sell, offer to sell, import into or otherwise commercialize any Product within the Territory, nor shall Participant, except as otherwise provided in the Operating Agreement, utilize the Technology or any part thereof to make, have made, use, sell, offer to sell, import into or otherwise commercialize any Product within the Territory.

2.4 Further Assurances. To the extent that any subsidiary or affiliate of Participant develops or creates, or acquires ownership rights or rights to use, any intellectual property rights relating to the Technology, Participant agrees to cause such subsidiary or affiliate to grant a license to JV with respect to such intellectual property rights on the same terms and conditions set forth in this License Agreement.

3. IMPROVEMENTS.

3.1 Participant Improvements. All Improvements developed by or for Participant (other than JV Improvements) or in which Participant otherwise acquires rights (the "Participant Improvements") shall be included in the Technology licensed hereunder to JV without additional royalty or other obligation being imposed on JV. Within a reasonable time, but in no event more than ninety (90) days, after any Participant Improvement is reduced to practice or, if applicable, is disclosed to Participant by the entity that developed such Participant Improvement, Participant shall provide JV with access to all information in Participant's possession concerning such Participant Improvement as JV shall reasonably request; provided, however, that all such information shall be confidential and shall be subject to all restrictions on disclosure set forth in Section 9.1 of this Agreement.

3.2 JV Improvements. JV shall own all Improvements developed by JV, along with all Improvements developed by Participant or any other party for JV (collectively, the "JV Improvements").

4. PATENT MATTERS.

4.1 Patent Protection for Improvements.

(a) JV shall have the right, in its sole discretion, either to (i) affirmatively seek patent protection for any Improvement at its sole cost and expense, or (ii) maintain any Improvement as a trade secret.

(b) Participant shall provide JV, at JV's expense, with such assistance as may be reasonably requested, from time to time, in connection with efforts to seek patent protection for any Improvement in accordance with Section 4.1(a), including the execution of any documents necessary to obtain and maintain such patent protection.

4.2 Patent Protection for Existing Technology. Participant shall diligently prosecute all patent applications included in the Technology that are pending as of the effective date of this Agreement, and shall pay or cause to be paid all maintenance fees and annuities as they become due in respect of any Licensed Patents, the practice of which is necessary in connection with the manufacture, use, installation, sale or commercialization of the Products; provided, however, that if Participant determines that it no longer desires to prosecute any such pending patent application or maintain any such Licensed Patent, it shall (i) give JV written notice of such determination at least sixty (60) days prior to the date on which any action, fee or annuity pertaining to such pending patent application or Licensed Patent is due, and (ii) offer to JV the assignment of its right, title and interest in such pending patent application or Licensed Patent. If JV accepts such offer, Participant shall assign to JV all of its right, title and interest in such pending patent application or Licensed Patent. Following any such assignment, JV may draft, file, maintain, prosecute and defend such assigned patent applications or patents in its sole discretion. Pending receipt of a response from JV as to whether JV will accept such offer or, if later, the expiration of such 60-day period, Participant shall take such action as may be reasonably required to prevent the abandonment of such pending patent application or patent. JV will use reasonable efforts to respond in writing to such offer within the 60-day period after Participant gives notice of such offer.

5. INFRINGEMENT MATTERS.

5.1 Notice of Infringement; Initiation of Suit. Each of Participant and JV will promptly, and in any event within thirty (30) days of discovery, notify the other in writing of any apparent infringement of the Technology in the Territory that comes to its attention while this Agreement remains in effect. JV shall have the initial right, at its sole cost and expense, to bring suit to enjoin such infringement and to recover damages therefor for its sole account. If JV fails to bring any such action within ninety (90) days after written notice of infringement is given by or to JV, Participant, at its sole cost and expense, shall have the right to bring suit to enjoin such infringement and recover damages therefor; provided, that JV shall be entitled to receive any damages recovered by Participant to the extent such damages are attributable to lost sales of Products in the Territory or otherwise relate to infringement of the intellectual property rights that are the subject of the License. If a declaratory relief action is brought against JV or Participant by a third party that alleges a controversy exists with JV or Participant with respect to whether such party is infringing any of the Technology within the Territory, the respective rights and responsibilities of the parties with respect to the defense of such action will be determined in the same order set forth above as if apparent infringement of the Technology in the Territory had come to the attention of the parties by any other means, i.e., JV shall have the initial right but not the obligation, at its sole cost and expense, to defend against such declaratory relief action and to bring such counterclaims as it may deem appropriate.

5.2 Prosecution of Suit. In any action brought pursuant to Section 5.1 hereof, the party initiating the suit (the "Initiating Party") shall select and control counsel for the prosecution of such suit. The other party hereto (the "Noninitiating Party") shall (a) have the right to receive, from time to time, full and complete information from the Initiating Party concerning the status of such suit, (b) have the right, at its own expense, to be represented therein by counsel in an advisory or consultative capacity, and (c) cooperate fully with the Initiating Party and provide whatever assistance is reasonably requested by the Initiating Party in connection with such suit, including the preparation and signing of documents at the Initiating Party's expense. Participant agrees to be joined as a party in any patent enforcement action at JV's request if the joinder of Participant is deemed by JV to be necessary to commence or maintain such action. The costs and expenses, including attorneys' fees, of the Initiating Party in any action alleging infringement will be borne by the Initiating Party. In the event of a recovery of Losses by the Noninitiating Party in any such action, the Noninitiating Party shall reimburse the Initiating Party for its pro rata portion of the costs and expenses, including attorneys' fees, incurred by the Initiating Party relating to such action (based on the proportion which the amount recovered by the Noninitiating Party bears to the total amount recovered by the Initiating Party and the Noninitiating Party). In no event, however, will the Noninitiating Party be obligated to reimburse the costs and expenses, including attorneys' fees, of the Initiating Party in an amount in excess of the damages awarded to the Noninitiating Party in such action. The Initiating Party shall have the right to settle any enforcement action brought or defended pursuant to this Section 5.2; provided, however, that, if the settlement of such enforcement action would restrict JV's ability to commercialize the Products within the Territory in any way or provides for a release or license to be granted to a third party in the Territory or pertaining to actions in the Territory, such settlement, release or license shall require the prior written consent of JV, which consent shall not unreasonably be withheld or delayed.

5.3 Participant Infringement Action.

(a) The parties shall promptly notify each other in writing of (a) any claim or threatened claim by any Person that the use of the Technology by JV, a sublicensee of the Technology (a "Sublicensee") or the Other Participant in connection with the manufacture, use, installation, sale or commercialization of any Product by JV, a Sublicensee or the Other Participant infringes or violates the patent, trade secret or other intellectual property rights of such Person, or (b) the commencement of any lawsuit against either party to this Agreement, a Sublicensee or the Other Participant, or any of their respective customers, asserting any such claim (each, a "Participant Infringement Action"). Participant shall be entitled to participate in the defense of any Participant Infringement Action and, if it so chooses, to assume the defense thereof at its sole cost and expense, with counsel selected by Participant (subject to the approval of JV, which approval shall not be unreasonably withheld or delayed).

(b) If Participant elects to assume the defense of a Participant Infringement Action, JV shall (i) cooperate in all reasonable respects with Participant in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Participant Infringement Action without Participant's prior written consent and (iii) agree to any settlement, compromise or discharge of a Participant Infringement Action complies with the terms and conditions set forth in this Section 5.3. If Participant assumes the defense of any Participant Infringement Action, JV shall be entitled to participate in and share control of such defense with its own counsel at its own expense. If Participant does not assume the defense of any such Participant Infringement Action, JV may defend, settle, compromise or discharge such Participant Infringement Action in such manner as it may deem appropriate in its sole discretion; provided, that JV shall attempt to obtain the written agreement of Participant prior to settling, compromising or discharging such Participant Infringement Action, which consent shall not unreasonably be withheld or delayed.

(c) If the court or other ruling body in any Participant Infringement Action enters a final and nonappealable order, or denies a request to stay an order requiring the payment of money, which order finds that the Technology infringes or violates, in whole or in part, the intellectual property rights of another Person, the Participant shall: (i) obtain a license for itself, JV, any Sublicensee or the Other Participant under any third party's patent not licensed hereunder so that each applicable party may continue with its activities as contemplated by this Agreement, (ii) pay any royalty or fee that may be due under any license described in subsection (i) above, and (iii) pay any damages on account of such infringement or violation, whether such damages would otherwise be payable by Participant, JV, a Sublicensee or the Other Participant under the applicable order. In addition, upon request, Participant shall promptly reimburse JV, a Sublicensee and the Other Participant for all Losses incurred in connection with such Participant Infringement Action.

(d) If Participant or JV settles, compromises or discharges any Participant Infringement Action, Participant shall (i) pay all royalties or licensing fees incurred in connection with such settlement, compromise or discharge, and (ii) upon request, promptly reimburse JV, a Sublicensee and the Other Participant for all Losses incurred in connection with such Participant Infringement Action; provided, however, that if JV settles, compromises or discharges an Participant Infringement Action without the prior written consent of Participant, which consent shall not be unreasonably withheld or delayed, Participant shall continue to be obligated to make the payments and reimbursements provided for in this Section 5.3(d), but only up to an amount that is commercially reasonable.

6. INDEMNIFICATION; NO CONSEQUENTIAL DAMAGES.

6.1 Indemnification by Participant. Subject to Section 6.3, Participant hereby agrees to indemnify JV and its affiliates and their respective officers, directors, employees, stockholders, members, agents and representatives, including the Other Participant ("Other Indemnified Persons") against, and agrees to hold them harmless from, any and all claims, demands, suits, proceedings, judgments, or Losses, as incurred (payable promptly upon request), for or on account of or arising from or in connection with or otherwise with respect to (a) Participant's failure to perform its obligations under this Agreement or any inaccuracy or breach of any representation or warranty set forth in Article 7 or elsewhere in this Agreement; or (b) any defect or alleged defect in any Product sold by JV resulting from or alleged to have resulted from (i) any defect in the design or specifications of the Product which are included in the Technology or which may have been or which may be provided to JV or any Other Indemnified Person by Participant, including but not limited to any product liability arising from any such defect, subject to any limitations, exclusions and disclaimers as to such warranties set forth in this Agreement, or (ii) any goods supplied or engineering, design or other services provided by Participant or any affiliate of Participant to JV. If and to the extent any inaccuracy or breach of any representation or warranty of Participant in Section 7.1 relates to a Participant Indemnification Action as to which Participant is obligated to indemnify JV pursuant to Sections 5.3, the indemnification procedures and other provisions of Section 5.3 shall control with respect thereto to the extent such provisions are inconsistent with the provisions of this Article 6.

6.2 Indemnification by JV. Subject to Section 6.3, JV hereby agrees to indemnify Participant and its Other Indemnified Persons against, and agrees to hold them harmless from, any and all claims, demands, suits, proceedings, judgments, or Losses, as incurred (payable promptly upon request), for, on account of, arising from, in connection with, or otherwise with respect to, (i) JV's failure to perform its obligations under this Agreement or (ii) the Products and any other products or services sold by JV, including but not limited to any resulting product liability arising from any of the Products or any such other products or services of JV; provided, however, that JV shall have no obligation to indemnify Participant or any of its Other Indemnified Parties in respect of any claim for which JV is entitled to be indemnified by the Participant under Section 6.1.

6.3 Insurance. During the term of this Agreement, JV shall maintain with carriers reasonably acceptable to Participant insurance coverage of the types and in the amounts set forth in Exhibit C attached hereto. JV shall cause Participant to be a named insured under each such policy and shall deliver to Participant promptly after the date hereof a certificate of insurance confirming such coverage and requiring that Participant be provided thirty days notice by the insurance carrier prior to the cancellation of any such policy. Participant acknowledges that the Other Participant may be an additional named insured under such policies. Any insurance policy of JV shall be endorsed to state that such policy is primary as respects other insurance available to the insureds, including without limitation the Other Participant. The indemnification obligations of Participant and JV hereunder shall be reduced by insurance proceeds received by the Indemnified Party under any such policy.

6.4 Third-Party Claims.

(a) In order for any party or its Other Indemnified Persons (each, an "Indemnified Party") to be entitled to any indemnification from any other party hereto (the "Indemnifying Party") provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the Indemnified Party (a "Third-Party Claim"), such Indemnified Party must notify the Indemnifying Party in writing of the Third-Party Claim within a reasonable time after receipt by such Indemnified Party of written notice of the Third-Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within a reasonable time after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim.

(b) If a Third-Party Claim (other than an Participant Infringement Action that is subject to the provisions of Section 5.3) is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party (subject to the approval of the Indemnified Party, which approval shall not be unreasonably withheld or delayed). If the Indemnifying Party elects to assume the defense of a Third-Party Claim, the Indemnified Party shall (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the Indemnifying Party's prior written consent and (iii) agree to any settlement, compromise or discharge of a Third-Party Claim which the Indemnifying Party may recommend and, which by its terms, obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third-Party Claim, which releases the Indemnified Party completely in connection with such Third-Party Claim. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnified Party shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third-Party Claim, the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation and the Indemnifying Party shall promptly reimburse the Indemnified Party for all Losses imposed thereon or reasonably incurred thereby in connection with such Third-Party Claim upon request.

6.5 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER, OR IN CONNECTION WITH, THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES, EXPENSES OR DAMAGE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS.

7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTICIPANT.

Participant hereby represents and warrants to JV that:

7.1 Organization / Power. Participant is a that is duly organized, validly existing and in good standing under the laws of , and possesses all requisite power and authority to own and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted.

7.2 Authorization. Participant has the necessary power and authority to enter into, execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby, including but not limited to the right to license the Technology. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all required action on the part of Participant (including, without limitation, action by any governing body or any holders of equity securities of Participant, if applicable). This Agreement has been executed and delivered by Participant and constitutes a legal and binding agreement enforceable against Participant in accordance with its terms, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors' rights.

7.3 Actions and Proceedings. Other than as set forth on Exhibit B, there are no outstanding orders, judgments, injunctions, awards or decrees of any court, governmental or regulatory body or arbitration tribunal in any jurisdiction (each, a "Governmental Entity") against or involving Participant with respect to the Technology, and there are no actions, suits or claims or legal, administrative or arbitral proceedings or, to the best knowledge of Participant, investigations pending or, to the best knowledge of Participant, threatened against or involving Participant that potentially affect the validity, enforceability, or Participant's rights of ownership or to license the Technology. No Person has made any written or oral claims or threatened, in writing or otherwise, that the use of the Technology or the manufacture or sale of Products violates, would violate, misappropriates, would misappropriate, infringes or would infringe any patent, copyright, trade secret or other intellectual property right of such Person in the Territory. To the knowledge of Participant, the use of the Technology by JV as contemplated herein, including without limitation in connection with the design, assembly, manufacture, testing and sale of Products in the Territory, will not infringe any patent, copyright, trade secret or other intellectual property right of any third party in the Territory.

7.4 No Conflicts. No consents, permits, authorizations, orders and approvals from (or any filings or registrations with) any natural person, firm, partnership, association, corporation, company, trust, business trust, Governmental Entity, or any other entity (each, a "Person"), pursuant to applicable law or contracts or other agreements with Participant, are required in connection with the performance of Participant's obligations under this Agreement. The execution, delivery and performance of this Agreement by Participant shall not: (a) result in a violation of any law, rule, ordinance, regulation, order, judgment or decree applicable to Participant or the Technology; or (b) conflict with or result in a material breach of or default (with or without the giving of notice, the passage of time or both) under any mortgage, lien, lease, license, permit, agreement, contract or instrument to which Participant is a party or by which Participant may be bound.

7.5 Title. Participant is either the owner of all right, title and interest in the Technology or holds rights under a valid and enforceable license to use the Technology and has the right to sublicense the Technology to JV as set forth in this Agreement, and Participant has not sublicensed, licensed or otherwise granted to any Person, other than JV, the right to utilize the Technology, or any part thereof, to make, have made, use, sell, offer to sell, import into or otherwise commercialize any Product within the Territory.

7.6 Protection of Intellectual Property. Participant has used reasonable efforts to maintain (and will continue to use reasonable efforts to maintain) the confidentiality of all Trade Secrets and neither Participant, nor to Participant's knowledge, any sublicensee of Participant, has disclosed any Trade Secrets to any third parties who are not under appropriate confidentiality obligations.

8. TERMINATION; REMEDIES FOR BREACH.

8.1 No Termination. The licenses granted hereunder shall be irrevocable and shall not be terminable by Participant and the rights granted under this Agreement shall continue in full force and effect unless and until terminated by the mutual written consent of the parties, notwithstanding any material breach of any term hereof by JV.

8.2 Remedies for Breach. In the event of any breach of any term of this Agreement by Participant or JV (the breaching party being referred to as the "Breaching Party"), the sole remedy of the other party (the "Nonbreaching Party") will be for the Nonbreaching Party to bring a legal action against the Breaching Party seeking monetary damages and neither party shall have, and each hereby irrevocably waives, the right to seek injunctive or equitable relief against the Breaching Party, including any remedy that would involve rescission or other termination of this Agreement or any of the licenses granted hereunder.

9. CONFIDENTIALITY.

9.1 Confidential Information. Any information relating to this Agreement, the Technology or the business of JV or Participant is hereinafter referred to as "Confidential Information." All Confidential Information in tangible form (plans, writings, drawings, computer software and programs, etc.) or provided to or conveyed orally or visually, shall be presumed to be proprietary to Participant or JV at the time of delivery to the other party. All such proprietary information shall be protected by the receiving party from disclosure with the same degree of care with which the receiving party protects its own Confidential Information from disclosure, but in no event with less than a reasonable degree of care. The receiving party agrees (a) not to disclose Confidential Information to any Person except to those of its employees or representatives who need to know Confidential Information in connection with the conduct of its business and who have agreed in writing to maintain the confidentiality of such Confidential Information, and (b) that neither it nor any of its employees or representatives will use the Confidential Information for any purpose other than in connection with the conduct of its business pursuant to this Agreement; provided, that such restrictions shall not apply if such Confidential Information (i) is or hereafter becomes public other than by a breach of this Agreement, (ii) was already in the receiving party's possession and not subject to an obligation of confidentiality prior to any disclosure of the Confidential Information to the receiving party, (iii) has been or is hereafter obtained by the receiving party from a third party which to the knowledge of the receiving party was not bound by any confidentiality obligation with respect to the Confidential Information, (iv) is required to be disclosed pursuant to judicial order, but only to the extent of such order and after reasonable notice to the disclosing party so as to allow the disclosing party to intervene in any proceeding leading to such order, or (v) is required to be disclosed by any government authority which regulates the business of the receiving party, but only to the extent of such required disclosure and after reasonable notice to the disclosing party so as to allow the disclosing party to intervene to seek confidential treatment.

9.2 Injunctive Relief. The parties acknowledge that the violation of Section 9.1 shall cause Participant or JV, as the case may be, irreparable injury for which there will be no adequate remedy at law and that Participant or JV, as the case may be, shall be entitled to preliminary and other injunctive relief against any such violation, which injunctive relief shall be in addition to, and not in lieu of, any other remedies or rights Participant or JV, as the case may be, may have at law or in equity.

10. MISCELLANEOUS.

10.1 Governing Law. This Agreement shall be governed in all respects by the laws of without regard to provisions regarding choice of laws.

10.2 Survival. The representations, warranties, covenants and agreements made herein shall survive any investigation made by any party hereto and the closing of the transactions contemplated hereby.

10.3 Successors and Assigns. Except as otherwise expressly provided in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties to this Agreement whose rights or obligations hereunder are affected by such amendments. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof nor any of the documents executed in connection herewith may be assigned by any party without the consent of the other party; provided, however, that JV shall have the right to assign all of its rights and obligations under this Agreement to any Person in connection with the sale of the business in accordance with the Operating Agreement, whether by merger, sale of assets or any equivalent transaction.

10.4 Entire Agreement. This Agreement and the Schedules and Exhibits to this Agreement, which are hereby expressly incorporated in this Agreement, constitute the entire understanding and agreement between the parties with regard to the subjects hereof and thereof.

10.5 Notices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given: (a) when hand delivered to the other party; (b) when received if sent by facsimile at the address set forth below; or (c) five (5) business days after deposit in the U.S. mail with first-class or certified mail receipt requested postage prepaid and addressed to the other party as set forth below:

If to Participant:

Attention:

If to JV:

Attention:

Each person making a communication hereunder by facsimile shall promptly confirm receipt by telephone to the person to whom such communication was addressed each communication made by it by facsimile pursuant hereto, but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 10.5 by giving the other party written notice of the new address in the manner set forth above.

10.6 Amendments and Waivers. Any term of this Agreement may be amended only with the written consent of each of the parties to this Agreement.

10.7 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to JV or to Participant, upon any breach or default of any party hereto under this Agreement, shall impair any such right, power or remedy of JV, or Participant nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring, nor shall any waiver of any other breach or default theretofore or thereafter occurring be so construed. Any waiver, permit, consent or approval of any kind or character on the part of JV or Participant of any breach or default under this Agreement or any waiver on the part of JV or Participant of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to JV or Participant, shall be cumulative and not alternative.

10.8 Legal Fees. In the event of any action at law, suit in equity or arbitration proceeding in relation to this Agreement, the prevailing party, shall be paid by the nonprevailing party a reasonable sum for attorneys' fees and expenses incurred by such prevailing party.

10.9 Titles; Construction. The titles of the Sections, paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Whenever the words "included," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." No rule of construction shall be applied to the disadvantage of a party by reason of that party having been responsible for the preparation of this Agreement or any part hereof.

10.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

10.11 Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, but only to the extent that such construction is in accord with the intent of the parties as evidenced by this Agreement.

10.12 No Third-Party Beneficiaries. Except as expressly set forth in this Agreement to the contrary, including with respect to indemnification of Indemnified Parties and infringement matters, nothing in this Agreement shall confer any rights upon any person or entity that is not a party hereto, or a successor in interest or a permitted assignee of a party to this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

EXHIBIT A

ISSUED PATENTS AND PENDING PATENT APPLICATIONS

A. Issued Patents.

Title Patent No.

B. Pending and Allowed Patent Applications.

Title Serial No.

EXHIBIT B

CLAIMS

EXHIBIT C

INSURANCE REQUIREMENTS