cellynx_8k-ex1002.htm


    EXHIBIT
10.2

     

    LICENSE
AGREEMENT

     

    This
License Agreement (“Agreement”) is made effective January 12, 2009 (the
“Effective Date”), between Greg F. Johnson and Kevin K Ketelsen, individuals
residing in California, (together “LICENSOR”) and Cellynx Inc., having a
principal place of business at 25910 Acero, Suite 370, Mission Viejo
Ca. 92691 (“LICENSEE ”) (together the “Parties”).

     

    Whereas,
LICENSOR is the sole owner of all right, title and interest to and in certain
invention, technology, know-how, skill, and patent appplication(s) referred to
as the LICENSOR’s Intellectual Property;

     

    Whereas,
LICENSEE desires to obtain a worldwide license for the Intellectual Property and
the rights described herein in the Market upon the terms and conditions
established herein; and

     

    Now,
therefore, in consideration of the premises and the promises and mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows.

     

    1.           DEFINITIONS.

     

    1.1  "Licensed Product"
shall mean any product manufactured by LICENSEE, its Affiliates, or authorized
sub-LICENSEES as defined herein, in the Market and covered by, which embodies,
utilizes or is based upon the Patent Rights, Technology Rights or Licensed
Intellectual Property defined in this Agreement.

     

    1.2  "Patent Rights" shall
mean LICENSOR’s United States and foreign patent rights relating to and/or
claiming the benefit of priority to U.S. Patent Nos. 61/104,255, and 61/104,242,
entitled “Antenna System having Compact PIFA Resonator with Open Sections” and
“Lowband Antenna System with PIFA-fed Conductor”, respectively, and including
continuations, continuations-in-part, and divisions, and all patents issuing
which are based on such applications, and all reissues, reexaminations, or
extensions thereof, and patents and patent applications on any improvements,
advancements, enhancements, modifications, revisions or developments that
reasonably relate to the Licensed Products and that are developed by or for
LICENSOR or LICENSEE.

     

    1.3  "Technology Rights"
shall mean technical information and know-how, including without limitation,
trade secrets, designs, drawings, data, products, inventions, specifications,
manufacturing techniques and any other information related to the Licensed
Products and created by or for LICENSOR and all improvements, advancements,
enhancements, modifications, revisions or developments that reasonably relate to
the Licensed Products, whether or not patentable and regardless of who, as
between the Parties, develops it.

     

    1.4  "Intellectual
Property" shall include any inventions, discoveries, developments,
improvements, trade secrets, designs, processes, technologies and other such
items for which Intellectual Property Rights may be secured.

     


    
      
         


      

      
        -1-

        
          

        

      

      
         


      

    


    1.5  “Licensed Intellectual
Property” shall mean collectively the Patent Rights and Technology Rights
granted hereunder.

     

    2.           GRANT
OF LICENSE.

     

    2.1  Global
Scope.  LICENSOR hereby grants to LICENSEE and its Affiliates,
to the extent that it lawfully may, an exclusive license to manufacture, have
manufactured, use, import, offer to sell, and/or sell, lease, distribute or
otherwise commercially exploit the Licensed Product throughout the World in the
Market during the Term of this Agreement.

     

    2.2    Market.   This
License is limited to the market (the “Market”) of Cellular Telephone Repeater
Products.  This License grants LICENSEE no rights to make, use or sell
Licensed Products outside of this limited market, including but not limited to,
cellular handsets or other portable wireless communication devices.

     

    3.           LICENSE
FEES, PAYMENTS AND REPORTS

     

    3.1 License Terms and
Fees.

     

    The
Parties agree that LICENSOR will be compensated for this License in the form of
a transfer of common stock of Cellynx Inc. and a one-time payment of
cash.  LICENSEE represents and warrants that the shares to be
transferred to LICENSOR are shares of Common Stock of LICENSEE and that the
shares represent a portion of the only issued and outstanding capital stock of
LICENSEE.

     

    Within 2
days from the Effective Date, LICENSEE will grant, transfer, convey or direct
the following:

     

    Greg F.
Johnson:  Six thousand (6,000) shares of common stock of Cellynx
Inc.,

     

    Kevin K.
Ketelsen: two thousand (2,000) shares of common stock of Cellynx Inc.,
and

     

    Greg F.
Johnson will receive one thousand dollars ($1,000 USD). 

     

    4.           SUBLICENSING

     

    4.1  LICENSEE
may grant sublicenses under this Agreement by entering into a written sublicense
agreement that is signed by and binding on the Sublicensee.  Within 30
days after the sublicense agreement has been signed by a Sublicensee, LICENSEE
will deliver a copy of that sublicense agreement to LICENSOR.  The
sublicense agreement will: (i) require that Sublicensee comply with Sections 3
and 5-10 of this Agreement; and (ii) provide that upon any termination of this
Agreement, Sublicensee’s rights under agreements between LICENSEE and
Sublicensee will also terminate.

     


    
      
         


      

      
        -2-

        
          

        

      

      
         


      

    


    5.           MARKING
AND RELATED PATENT RIGHTS

     

    5.1  Marking.  LICENSEE
will mark, and cause its Affiliates or Sublicensee to mark, all Licensed
Products with patent right notices that will enable the Patent Rights to be
enforced to their full extent in any country where the Licensed Products are
made, used or sold.  In the event that it is not practicable to affix
a patent marking onto the Licensed Products directly, LICENSEE shall affix the
patent marking onto packaging containing Licensed Products and literature
accompanying the Licensed Products.

     

     5.2  In
the event LICENSEE challenges, directly or indirectly, the right, title and
interest of LICENSOR in or to any of the Licensed Intellectual Property or the
validity to license granted herein, and if LICENSEE fails to withdraw such
challenge without reasonable justification after thirty (30) days written notice
from LICENSOR identifying the specific challenge and/or challenges at issue, the
LICENSOR may terminate this Agreement immediately without liability to LICENSEE,
and may bring appropriate legal action in respect of any such breach or
challenge (as the case may be).

     

    6.           CONFIDENTIAL
INFORMATION

     

    6.1  Confidential
Information.   Neither Party will disclose the
Confidential Information of the other Party without prior written consent of the
disclosing party.  “Confidential Information” shall include, but not
be limited to, all information disclosed by either Party in the performance of
this Agreement and all extracts, notes, drawings, schematics, correspondence and
materials of any kind and nature related thereto. Each Party will use the other
party’s Confidential Information solely for the purpose of exercising its rights
under this Agreement.  Each Party will protect the Confidential
Information of the other Party with at least the same degree of care (but not
less than reasonable care) that it uses for its own information of a
confidential nature.  Access to Confidential Information hereunder
shall only be given to those employees or contractors of the receiving Party who
have a “need to know” such information and who have signed confidentiality
agreements consistent with and no less restrictive than the terms of this
Section 6.1, or who are otherwise bound by law to maintain the confidentiality
of the Confidential Information.

     

    6.2   Exceptions.  This
Agreement imposes no obligation upon a receiving Party with respect to
Confidential Information that such Party can establish by legally sufficient
evidence: (i) was in the possession of, or was rightfully known by the receiving
Party without an obligation to maintain its confidentiality; (ii) is or becomes
generally known to the public without violation of this Agreement; (iii) is
obtained by the receiving Party in good faith from a third party having the
right to disclose it without an obligation of confidentiality; or (iv) is
independently developed by the receiving Party without reference to or the
participation of individuals who have had access to the Confidential
Information.  Each Party may disclose Confidential Information of the
other if required by law, provided that the receiving Party notifies the
disclosing Party of such requirement prior to disclosure in order to afford the
disclosing Party an opportunity to object to or limit the scope of such
disclosure.

     

    6.3  The
obligations of this Section 6 shall survive the termination of this
Agreement.

     


    
      
         


      

      
        -3-

        
          

        

      

      
         


      

    


    7.           INDEMNIFICATION.

     

    7.1
LICENSEE will defend and hold harmless LICENSOR, its directors, officers,
employees and agents from and against any and all claims, liability, demands,
damages, costs, expenses (including attorney fees and costs) and losses,
including for death, personal injury, illness and property damage, arising from
or relating in any way to this Agreement or the Licensed Products, including but
not limited to: (a) the use by or on behalf of LICENSEE, its Affiliates,
Sublicensees, their customers, suppliers, and other third party users of
Licensed Products; and (b) the design, manufacture, distribution, sales or use
of any Licensed Products.

     

    8.           WARRANTIES;
LIMITATION OF LIABILITY

     

    8.1
LICENSOR represents and warrants to LICENSEE as follows:

     

    (a) that
LICENSOR is the sole owner of the entire right, title, and interest in the
Licensed Intellectual Property, and that it has the right to grant the license
granted to LICENSEE herein; and

     

    (b)
LICENSOR does not warrant the validity of the Licensed Intellectual Property and
makes no representations whatsoever (a) of the Licensed Intellectual Property;
or (b) that the Licensed Intellectual Property can be exploited without
infringing other patents or other intellectual property rights of third parties;
or (c) that the Licensed Intellectual Property will accomplish any particular
results or are safe or fit for any purpose.  In no event will LICENSOR
be liable for any incidental, consequential, special or punitive damages
resulting from the sale of the Licensed Products, the use of the Licensed
Intellectual Property or LICENSEE’s exercise of any other rights under this
Agreement or the use of the Licensed Intellectual Property.

     

    9.  TERM
AND TERMINATION.

     

    9.1 Term.  Unless
otherwise terminated in accordance with the provisions of this Agreement, this
Agreement shall have a term of ten (10) years from the Effective
Date.

     

    9.2 Termination:  This
Agreement may be terminated:

     

    9.2.1  By LICENSOR if
LICENSEE shall at any time default on any obligation to make payment or report,
and shall fail to remedy any such default or breach within thirty (30) days
after written notice by LICENSOR;

     

    9.2.2  By either Party if the
other Party shall commit any material default of any covenant or agreement
contained herein, and shall fail to remedy any such default or breach within
thirty (30) days after written notice by the non-defaulting or non-breaching
party; and

     

    9.2.3 Immediately by either Party if
the other Party files any petition for bankruptcy, whether voluntary or
involuntary, or makes any assignment for the benefit of creditors during the
term of this Agreement.

     


    
      
         


      

      
        -4-

        
          

        

      

      
         


      

    


    9.3 Effect of
Termination.  Upon termination or expiration of this Agreement,
all license rights granted to LICENSEE hereunder shall immediately terminate,
except that LICENSEE shall for a period of six months after termination be
allowed to sell any Licensed Products that it has in its inventory at the date
of termination, if LICENSEE pays the earned royalty thereon and any other
amounts due pursuant to Article 3 of this Agreement. Upon termination LICENSEE
shall make no further use of any and all intellectual property rights of
LICENSOR and/or related know how and technology. Neither Party shall make any
use of the other party’s Confidential Information and shall return such
Confidential Information to the disclosing party.

     

    To the
extent either Party is held liable to the other Party for a breach of this
Agreement, then, in addition to being subject to the other Party’s termination
rights as set forth herein, the Party in breach will indemnify the other Party
for resulting direct expenses and direct damages, including without limitation,
costs and reasonable attorneys’ fees spent with respect to such third Party
action(s) for which indemnity is due.

     

    10.
GENERAL.

     

    All
payments, reports and notices provided for in this Agreements shall be effective
when received either by (i) personal delivery or (ii) when deposited, postage
prepaid, in the United States Registered or Certified Mail addressed to the
Parties respectively at the following addresses:

     

    


     

    If to LICENSOR:

     

    Greg. F. Johnson

     __________________________

    


    ___________________________

    


    ___________________________

    
 

     

    If to LICENSEE:

     

    Cellynx, Inc.

     

    ___________________________

     

    ___________________________

     

    ___________________________

     

    ___________________________

     


    
      
         


      

      
        -5-

        
          

        

      

      
         


      

    


    10.1
 Dispute
Resolution.  The Parties agree to attempt to settle amicably
any controversy or claim arising under this Agreement or breach of this
Agreement.  Thereafter, the Parties agree that all disputes between
them arising out of or relating to this Agreement will be submitted to
non-binding mediation unless the parties mutually agree
otherwise.  LICENSEE further agrees to include a similar provision in
all sublicenses under this Agreement thereby providing for mediation as the
primary method for dispute resolution between the parties to those
agreements.  All parties agree to exercise their best effort in good
faith to resolve all disputes in mediation.

     

    10.2
 Governing
Law.  Jurisdiction and venue for actions relating to the
subject matter of this Agreement will be the State of California and United
States federal courts having jurisdiction in California for actions initiated
either Party and the Parties expressly consent to the jurisdiction of such
courts. The law of the forum state shall apply without regard to the conflict of
law provisions thereof.

     

    10.3  Integration.  This
Agreement constitutes the entire agreement of the Parties with respect to the
subject matter hereof and supersedes all prior representations, assurances,
courses of dealing, agreements, and undertakings, whether written or oral,
between the Parties concerning such subject matter.

     

    10.4  Amendment.  This
Agreement may not be amended or modified except by written agreement signed by
authorized representatives of the Parties.

     

    10.5  Independent
Contractors.  The Parties are independent contractors, and
nothing herein will be construed to create a partnership, joint venture,
employment, or agency relationship between the Parties.  Neither Party
will have any authority to enter into agreements or make any statements,
representations or commitments or take any action of any kind on behalf of the
other, and neither Party will have any other power or authority to bind or
obligate the other in any manner to any third party.

     

    10.6  No Third Party
Beneficiaries.  Nothing in this Agreement is intended to, or
shall, create any third party beneficiaries, whether intended or incidental, and
no Party shall make any representations to the contrary.

     

    10.7  Assignment.  This
Agreement may not be assigned by the Parties without the prior written consent
of the other Party, with such consent not being unreasonably withheld. In the
event of any permitted assignment, this Agreement will be binding on, inure to
the benefit of, and be enforceable by the Parties and their respective heirs,
successors and valid assigns.

     

    10.8  Severability.  If
any provision of this Agreement is construed to be invalid or unenforceable,
such provision will be limited or modified to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.

     

    10.9  Waiver.  The
provisions of this Agreement may be waived only with the consent of the Parties.
The failure of a Party to enforce its rights under this Agreement for any period
will not be construed as a waiver of such rights.

     

    10.10  Headings.  Headings
contained in this Agreement are for ease of reference only and will have no
legal effect.

     


    
      
         


      

      
        -6-

        
          

        

      

      
         


      

    


    10.11  Counterparts and
Facsimiles.  This Agreement may be executed on facsimile copies
in two or more counterparts, each of which will be deemed an original and all of
which together will constitute one and the same Agreement.

     

    10.12  Survival of Terms.
Upon termination of this Agreement for any reason, those provisions of the
Agreement which by their nature or express language survive termination hereof
shall be deemed to do so.

     

    10.13 
Representation of
Accredited Investor Status, Investment Experience and ability to Bear
Risk. Licensor acknowledges that the shares of Common Stock have not been
registered with the United States Securities and Exchange Commission because the
Licensee is relying on an exemption from registration under Section 4(2) of the
Securities Act, and Regulation D and/or Regulation S promulgated thereunder.
Licensor believes that at the
time of the issuance of the Common Stock to Licensor, each Licensor qualifies as
an “accredited investor”(as defined under Rule 501 of Regulation D promulgated
under the Securities Act ).

     

    In
addition, each Licensor is knowledgeable and experienced with respect to the
financial and business activities contemplated by the Licensee and is capable of
evaluating the risks and merits of investing in the Common Stock and, making a
decision to proceed with this Agreement, has not relied upon any
representations, warranties, or agreements, other than those set forth in this
Agreement.

     

     

    In Witness Whereof, the undersigned
have executed this Agreement effective as of the Effective Date.

     

    LICENSOR:

     

    /s/
Greg. F.
Johnson                                         


    Greg. F.
Johnson

    


    /s/
Kevin K.
Ketelsen                                       


    Kevin K.
Ketelsen

    


     

    LICENSEE:  Cellynx
Inc.

     

    By:

     

    Title:

     

     

     

    -7-