LICENSE AGREEMENT This License Agreement is made this between Hong

LICENSE AGREEMENT This License Agreement is made this between Hong Kong University of Science and Technology R and D Corporation Limited (hereinafter referred to as “RDC”) whose registered office is situated at The Hong Kong University of Science and Technology (hereinafter referred to as “HKUST”), Clear Water Bay, Kowloon, Hong Kong of the first part; and (hereinafter called “ ”), whose registered office is situated at of the second part. RECITALS A. WHEREAS, RDC is a company incorporated in Hong Kong whose entire issued share capital is legally and beneficially owned by HKUST for the purpose, inter alia, of entering into commercial contracts and in which corporation HKUST has vested the sole right to hold and to transfer the ownership rights of HKUST in the intellectual property created by its employees and students, and which can hold equity in companies on behalf of HKUST and its employees. day of (the “Effective Date”) B. WHEREAS, of HKUST has developed technology relating to , for which application for the grant of patent has been filed with the US Patent Office (US Application No. , filed ) under the title “ ” (hereinafter referred to as “Technology”). WHEREAS, HKUST is the sole and exclusive owner of Technology and associated Intellectual Property Rights. WHEREAS, (hereinafter referred to as the “Licensee”) desires to obtain, and RDC is willing to grant, a license to the Technology and to make, sell and distribute Products derived therefrom (hereinafter referred to as “Products”) and to sub-license the Technology. C. D. NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth herein, the Parties agree as follows: 1. Definitions and Interpretation 1.1 In this Agreement, unless the context otherwise requires or expressly provides, the following words shall have the following meanings respectively: “Affiliate” means any entity which controls, is controlled by, or is under common control with, a Party to this Agreement or which is connected with an interested Party by means of share ownership or directorship. An entity controls another entity when it owns or controls, directly or indirectly, fifty percent (50%) or more of the equity or share capital issued by that other entity or when it controls the composition of the board of directors or governing executive body of that other entity. “Agreement” means this agreement and any supplement, amendment or variation made in accordance with the provisions of this agreement. “Confidential Information” shall mean all information or materials disclosed by one Party to another Party in confidence hereunder which information or materials are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and delivered to the recipient, marked as confidential, within fifteen (15) days after the date of disclosure. Page 1 “Customer” shall mean any person, firm or company who (or which) purchases or licenses any of the Products from the Licensee for his own use and not for the purpose of resale. “Dealer” shall mean any person, firm or company appointed by the Licensee in accordance with the terms of this Agreement to resell Products to Customers within the Territory. “Intellectual Property Rights” means (i) all Patent Rights; (ii) all trade secret rights arising under the laws of any jurisdiction; and (iii) all copyrights rights and all other literary property and author rights, whether or not copyrightable, and all copyrights and copyrighted interests, including any renewal thereof but will not include any rights in any trademarks, trade names, service marks, logos and the goodwill associated therewith. “Net Sales” means all sums received by from the sale of Products, including the fair market value of consideration received from barter, exchange or similar arrangements, excluding tax, insurance, freight and other government charges and levies. “Parties” means RDC and (and, if applicable, their respective successors and assignees) and “Party” means either of the Parties. “Patent Rights” means all United States and foreign letters patent and applications for letters patent, industrial models, industrial designs, utility models, certificates of invention, and other indications of invention ownership, including any such rights granted upon any reissue, division, continuation or continuation-in-part applications now filed. “Product” means any products as may be developed by or its Affiliates utilizing and/or based on or derived from modifying or developing the Technology. “Sub-licensing Revenues” means all sums received by or its Affiliates from the sublicensing of Technology, including the fair market value of consideration received from barter, exchange or similar arrangements, which are over and above the payment of royalty. “Territory” shall mean worldwide. 1.2 All references to a statutory provision shall be construed as to include references to any statutory modification, consolidation or re-enactment (whether before or after the date of this Agreement) for the time being in force and all statutory instruments or orders made pursuant to a statutory provision. Except where the context otherwise requires, words denoting the singular include the plural and vice versa; words denoting any one gender include all genders; words denoting persons include firms and corporations and vice versa. Unless otherwise stated, a reference to a Recital, Clause or Sub-clause or a Schedule is a reference to a recital, clause, sub-clause or schedule respectively in this Agreement. All Schedules hereto annexed to this Agreement shall form part and parcel of this Agreement as if the provisions in the Schedules are provisions of this Agreement. 1.3 1.4 2. License 2.1 Grant RDC hereby grants to the Licensee and the Licensee hereby accepts from RDC an exclusive license (including the right to sublicense through multiple tiers of sublicensees) to the Technology, and to make, sell and distribute Products based thereon. If the Technology is sublicensed, the Licensee shall ensure that the terms and conditions of this Agreement will apply to the sublicensee, including payment of royalty to RDC through Licensee as per Clause 8.2. 2.2 Reservation of Rights Page 2 RDC expressly reserves the right to use the Technology and associated information and technology for educational, research and other non-business purposes and to publish the results thereof. 3. Ownership 3.1 Intellectual Property All right, title and interest in Technology, including but not limited to copyrights, trade secrets, trademarks, patents and other intellectual property rights, shall belong to HKUST, subject to the license granted under this Agreement under Clause 2 above and Clause 3.2 below. 3.2 Products All right, title and interest in Products, including copyrights, trade secrets, trademarks, patents and other intellectual property rights developed by the Licensee, shall belong solely and exclusively to the Licensee subject to HKUST’s rights in the Technology created prior to the Effective Date. 4. Duration of Agreement 4.1 Notwithstanding Clause 2.1 above, if the Licensee and/or sublicensees have not commercialised Products within two years from the Effective Date, RDC reserves the right to revoke this Agreement. 5. Licensee’s Obligation 5.1 Marketing The Licensee shall promote Products under its own name, or that of a sublicensee. 5.2 Support The Licensee or sublicensees shall provide both pre-sale and after-sale support to its Customers and Dealers. 5.3 Protection of Intellectual Property 5.3.1 5.3.2 The Licensee agrees to use commercially reasonable efforts to protect and enforce the Intellectual Property Rights of the Technology against third parties. The Licensee shall pay to RDC all direct expenses HKUST has incurred for the preparation, filing, prosecution and maintenance of the US Patent application, as part of the license fee referred to in Clause 8.1. The Licensee shall bear all further application and maintenance costs and administrative requirements of seeking to obtain the granting of US Patent Application No . To protect the worldwide intellectual property rights associated with the Technology, the Licensee may, after informing RDC, file a patent application with the national patent office of any country. The Licensee will meet all the administrative and financial requirements involved in pursuing such action. All such patents shall be assigned to HKUST and shall be licensed to under the terms and conditions of this Agreement. 5.3.3 5.3.4 6. RDC’s Obligation 6.1 Support If the Licensee desires to receive continuing support from RDC, the Parties shall negotiate in good faith for the fees for continuing support of the Technology and Products derived therefrom. Page 3 6.2 Delivery RDC will provide the Licensee with one (1) master copy of all materials related to the filing of the US Patent Application referred to in Recital B, within sixty (60) days after the Effective Date. 7. Warranty 7.1 Ownership RDC warrants that it has full power and authority to enter into this Agreement. 7.2 AS IS 7.2.1 The Technology is provided to the Licensee on an “AS IS” basis and RDC disclaims all warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose and accepts no liability with respect to usage and commercialization of Products. RDC is not aware of any infringement with respect to any third-party rights and title, including patent and Intellectual Property Rights, with regard to the Technology and Products based thereon, but makes no warranty in this regard. 7.2.2 8. Payment 8.1 License Fee In exchange for the exclusive licensing of Technology, of HK$ upon signing this Agreement. 8.2 Royalty will pay RDC 8.3 Sub-licensing Revenue will pay RDC 8.4 % of Sub-licensing Revenue. % of its Net Sales as royalty. agrees to pay to RDC a license fee Accounting and Royalty Statement Within thirty (30) days of the end of the calendar year of the signing of this Agreement and each anniversary thereof, will notify RDC in writing of (i) its Net Sales of the Products, and (ii) any Sub-licensing Revenue for the year just ended, and (iii) a calculation of the corresponding payment due to RDC for said year. 8.5 Payment All payments made pursuant to this Agreement shall be remitted in Hong Kong dollars, and may be made by wire transfer or by cheque to RDC. 9. Confidentiality 9.1 General Neither Party shall disclose any Confidential Information to any other person or organisation without the prior written consent of the other Party. Each Party shall protect such information from disclosure to others with at least the same degree of care as such Party exercises to protect its own information of similar type and importance. The following shall be excluded from the definition of Confidential Information. That which: Page 4 9.1.1 9.1.2 9.1.3 9.1.4 9.1.5 9.1.6 was known to the receiving Party prior to its receipt hereunder; is or becomes publicly available without breach of this Agreement; is received from a third party without an obligation of confidentiality to the disclosing Party and without breach of this Agreement; is disclosed by the disclosing Party to another without an obligation of confidentiality; is developed independently by employees of the receiving Party not having access to such information; is disclosed by the receiving Party pursuant to court order provided that the originally disclosing Party is given a reasonable opportunity to object to or restrict such disclosure requirement to the extent practicable, and then such disclosure shall be permitted only subject to the terms and conditions of such order. 9.2 Confidentiality of Terms The Parties hereto will keep the terms of this Agreement confidential and will not now or hereafter divulge these terms to any third party except with the prior written consent of the other Party. 10. Miscellaneous 10.1 Headings The clause headings are inserted for convenience only and shall not affect the construction or interpretation of the content. 10.2 Waiver No terms or conditions hereof shall be deemed waived and no breach or default excused unless such waiver or excuse shall be in writing and signed by the Party issuing the same. 10.3 Partial Invalidity If any of the provisions of this Agreement prove to be legally invalid, this shall not affect the validity of the remaining provisions hereof which shall continue in full force and effect between the Parties hereto. 10.4 Nothing within this Agreement shall be construed by any Party as relating to a transfer of, intention or indication to transfer, Intellectual Property Rights and ownership from one Party to the other except as specifically referenced herein under Clause 2 and which refers exclusively to the Technology as defined herein. Entire Agreement This Agreement supersedes all prior representations and arrangements and understandings between the Parties relating to the subject matter and is intended by the Parties as the complete and exclusive statement of the terms of the Agreement. Any modifications, additions to or waiver of the Agreement shall not be effective unless in writing and signed by duly authorised representatives of the Parties to this Agreement. 10.6 Independent Contractors The relationship of the Licensee and RDC established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed (i) to give either Party the power to direct or control the day-to-day activities of the other or (ii) to constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. Page 5 10.5 10.7 No Assignment This Agreement may not be assigned or otherwise transferred nor, except as expressly provided herein, may any right or obligation hereunder be assigned or transferred to a third Party by the Licensee without the prior written consent of the other Party hereto, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may transfer or assign its rights and obligations under this Agreement to (i) a wholly owned subsidiary which has sufficient resources and rights to fulfill the terms of this Agreement, or (ii) a successor to all or substantially all of its business or assets relating to this Agreement who has sufficient resources and rights to fulfill the terms of this Agreement whether by sale, merger, operation of law or otherwise. 10.8 Notice All notices required or permitted to be given hereunder will be in writing and will be delivered (i) personally; (ii) by prepaid courier; or (iii) by mail, postage prepaid, to the address shown at the beginning of this Agreement in respect of the RDC and to the address shown at the beginning of this Agreement in respect of the Licensee. 10.9 Modification No modification or amendment to this Agreement will be effective unless assented to in writing by both Parties. 10.10 Governing Law This Agreement is made under and shall be construed according to the Laws of the Hong Kong Special Administrative Region of the People’s Republic of China, without reference to conflicts of law provisions or principles. Any dispute, controversy or claim arising out of or relating to this contract, or the breach termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the Hong Kong International Arbitration Centre (“HKIAC”). The place of arbitration shall be in Hong Kong at HKIAC. There shall be only one arbitrator. The language to be used in the arbitral proceedings shall be English. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Signed by and on behalf of Signed by and on behalf of Hong Kong University of Science and Technology R and D Corporation Limited Signed : Signed : Name : Name : Professor Tony EASTHAM Title : Title : President/Chief Executive Officer Date : Date : Page 6