Software License Agreement, Dated 2/10/97

SOFTWARE LICENSE AGREEMENT


between


GULTON INDUSTRIES, INC.


and


MARK IV INDUSTRIES, INC.


Dated as of February 10, 1997


2
SOFTWARE LICENSE AGREEMENT


This Software License Agreement (this "Agreement") is made and entered into as of this 10th day of February, 1997, by and between Mark IV Industries, Inc., a Delaware corporation ("Mark IV") and Gulton Industries, Inc., a Delaware corporation ("Gulton").


W I T N E S S E T H:


WHEREAS, Mark IV, Mark IV PLC, a United Kingdom corporation, Gulton and Greenwich Street Audio, LLC, a Delaware limited liability company have entered into a Purchase Agreement, dated as of December 12, 1996, and amended as of December 18, 1996 (the "Purchase Agreement"), providing, among other things, for the execution and delivery of this Agreement (capitalized terms used herein but not defined shall have the meanings set forth in the Purchase Agreement); and


WHEREAS, Mark IV, by itself and through its Affiliates (as defined below), including the Audio Products Group Companies, has developed and owns certain rights in the Licensed Software (as defined below) used by the Audio Products Group; and


WHEREAS, Mark IV acknowledges that Gulton and its Affiliates authored portions of the Licensed Software, that such portions are joint works within the meaning of 17 U.S.C. Section 101, and that Gulton owns certain rights therein and thereto by virtue of its authorship;


WHEREAS, Mark IV desires to license Gulton and Gulton desires to obtain throughout the world (the "Territory") for itself and any Affiliate, including the Audio Products Group Companies, a nonexclusive, royalty-free, perpetual right and license, subject to the terms and conditions contained herein, to those portions of the 3 Licensed Software not authored by Gulton for use in connection with the Audio Products Business;


NOW, THEREFORE, for and in consideration of the mutual premises and covenants hereinafter contained, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:


SECTION 1
DEFINITIONS


1.1 "Licensed Software" means the computer programs, as they exist on the date hereof, and any and all intellectual property rights therein and thereto in all forms and media, including but not limited to source code, object code, printed listings of code, copies on magnetic media and any existing derivative works, data and documentation, algorithms, formulas, flow charts, logic diagrams, computations, listings, instructions, statements, written graphics, photographic, optic, electric, magnetic or electromagnetic forms, developed by Mark IV or any Affiliate thereof (other than Gulton), and related to, used in, held for use in connection with, necessary for the conduct of or otherwise material to the operations of the Audio Products Group, including but not limited to the computer programs listed on the attached Schedule A.


1.2 "Affiliate" shall mean, with respect to any person, (i) any person that directly or indirectly controls, is controlled by or under common control with, such person, or (ii) any director, officer, partner, member or employee of such person.


SECTION 2
LICENSE


2.1 License Grant. (a) Subject to the terms and conditions set forth in this Agreement, Mark IV hereby grants to Gulton and Gulton hereby accepts a nonexclusive,


2 4 perpetual, irrevocable, royalty-free and fully paid-up right and license throughout the Territory to use, access, reproduce, distribute, display, compile, modify and prepare derivative works from the Licensed Software, for the internal use (except as provided herein) of Gulton and its Affiliates (the "License"); provided, however, that neither Gulton nor Mark IV shall have any rights to derivative works developed after the date hereof by the other party. Mark IV acknowledges that Gulton currently possesses a copy of the source code for the Licensed Software.


(b) The License granted herein permits Gulton to make any number of copies of the Licensed Software and use the Licensed Software on any number or type of processing units (CPUs) at any number of installations throughout the world, including without limitation data center installations owned and/or operated by third parties under contract to provide data center services for Gulton or any of its Affiliates.


2.2 Sublicenses. Gulton may sublicense any and all of the rights to the Licensed Software granted hereunder to any present or future Affiliates of Gulton for the internal use of such Affiliate, provided, however, that Gulton shall remain responsible for all use of the Licensed Software by such sublicensees.


2.3 Export Controls. From and after the date hereof, the parties agree that each party shall be responsible for obtaining any export license or other permission to transfer the Licensed Software to its respective Affiliates outside of the United States. Each party agrees to indemnify the other party against any liability to the United States or other government arising out of such export.


2.4 Third Party License. Gulton acknowledges that nothing herein shall be construed as a license to any operating software owned by IBM for the AS/400, that Gulton


3 5 will need to obtain a separate license from IBM to use such operating software and that Mark IV has no obligation to Gulton to assist it in obtaining such a license from IBM.


SECTION 3
USER RESTRICTIONS


3.1 No Third Party Use. Except as otherwise provided in this Agreement (including but not limited to Section 2.2 hereunder), Gulton agrees not to disclose, publish, release, or transfer to any other person or entity any Licensed Software without Mark IV's prior written consent (except to its Affiliates and to third p ...