EXHIBIT 10.34
LICENSE AGREEMENT
THIS AMENDED AND RESTATED LICENSE AGREEMENT (the "AGREEMENT") is entered
into effective as of October 17, 2001 (the "EFFECTIVE DATE"), by and between
SB OPERATINGCO, INC., a Delaware corporation ("SUREBEAM"), and THE TITAN
CORPORATION a Delaware corporation ("LICENSEE").
RECITALS
WHEREAS, SureBeam is the owner, licensee or holder of certain Patent Rights
(as defined in EXHIBIT A), software (the "LICENSED SOFTWARE") and Other
Intellectual Property (as defined in EXHIBIT A);
WHEREAS, Licensee and SureBeam Corporation ("HOLDCO") are parties to a
certain Contribution Agreement dated as of August 4, 2000 and HoldCo and
SureBeam are parties to a certain Contribution Agreement dated as of
August 4, 2000 (collectively, the "CONTRIBUTION AGREEMENTS") whereby Licensee
contributed certain of its assets and liabilities (the "TITAN ASSETS") to HoldCo
and thereafter HoldCo contributed the Titan Assets to SureBeam;
WHEREAS, as a part of such contributions Licensee and SureBeam entered into
this License Agreement which became effective upon and simultaneously with the
Contribution Agreements (the "LICENSE AGREEMENT");
WHEREAS, pursuant to this License Agreement, SureBeam granted Licensee a
fully-paid exclusive license to practice the inventions covered by the Patent
Rights and any Improvements (as defined in EXHIBIT A) and Other Intellectual
Property for medical sterilization applications in the Territory (as defined in
EXHIBIT A); and
WHEREAS, Licensee and SureBeam now desire to amend and restate the License
Agreement in its entirety as set forth in this Amended and Restated License
Agreement in light of, inter alia, augmentation of Licensee's contemplated field
of use and changes to each party's licensing strategy.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
AMENDMENT AND RESTATEMENT; DEFINITIONS
1.1 AMENDMENT AND RESTATEMENT. The License Agreement is hereby amended
and restated in its entirety.
1.2 DEFINITIONS. All abbreviations or capitalized terms in this Agreement
shall have the meanings assigned to them in the body of this Agreement or
Exhibit A and shall apply both to their singular and plural forms as the context
may require.
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ARTICLE 2
GRANT OF RIGHTS
2.1 EXCLUSIVE GRANT TO LICENSEE. Except as otherwise set forth in
Section 2.2 and Article 4, SureBeam hereby grants to Licensee and its Affiliates
a perpetual, exclusive (even as to SureBeam), fully paid and royalty-free
license in the Territory under the Patent Rights, Improvements and Other
Intellectual Property to develop, use, improve, modify, manufacture, have
manufactured, offer for sale, market, promote, distribute, sell, import or
otherwise deal in any Licensed Products (as defined in EXHIBIT A), in any and
all fields, except the Reserved Fields, for any purpose, in any manner or for
any application.
2.2 RESERVATION BY SUREBEAM. Licensee acknowledges that SureBeam hereby
expressly reserves the rights, only in the Reserved Fields, to develop, use,
manufacture, improve, modify, have manufactured, offer for sale, market,
promote, distribute, sell, import or otherwise deal in any Licensed Products for
any purpose, in any manner or for any application. SureBeam does not reserve any
right, and shall have none of the foregoing rights, outside the Reserved Fields.
2.3 SOFTWARE LICENSE AND DELIVERY.
(a) SureBeam hereby grants to Licensee and its Affiliates a
perpetual, irrevocable, nonexclusive, fully paid, royalty-free license in the
Territory to reproduce, use, modify and create Derivative Works from the
Licensed Software and to develop, use, improve, modify, manufacture, have
manufactured, offer for sale, market, promote, distribute, sell, import or
otherwise deal in any Licensed Products incorporating the Licensed Software or
Derivative Works in any and all fields, except the Reserved Fields, for any
purpose, in any manner or for any application.
(b) On or before September 30, 2003, SureBeam shall deliver to
Licensee a complete set of the Licensed Software, in both object and Source Code
forms, and all related manuals, documentation, specifications, instructions and
any other software tools or writings, if any, then in SureBeam's possession
which are necessary for Licensee's use of the Licensed Software to the full
extent as contemplated in Section 2.3(a).
2.4 TRADEMARK LICENSE.
(a) GRANT OF LICENSE. SureBeam grants to Licensee a nonexclusive,
nontransferable license to use the trademarks, trade dress, service marks, trade
names and brand names set forth on Exhibit A-2 the "MARKS") in connection with
any Licensed Product subject to the following terms and conditions. Licensee,
however, shall have no obligation to use any of the Marks on any of the Licensed
Products and may sell such Licensed Products under any trademark, service xxxx,
or brand name of its choice.
(b) OWNERSHIP OF MARKS. Licensee acknowledges SureBeam's ownership
of the Marks, and agrees that it will do nothing inconsistent with such
ownership and that all use of the Marks by Licensee shall inure to the benefit
of and on behalf of SureBeam. Licensee agrees that nothing in this Agreement
shall give Licensee any right, title or interest in and to the Marks
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other than the right to use the Marks in accordance with the terms of this
Agreement and Licensee agrees that it will not attack the title of SureBeam to
the Marks or attack the validity of this Agreement.
(c) QUALITY STANDARDS. Licensee agrees that the nature and quality
of all services rendered by Licensee in connection with the Marks; all goods
sold by Licensee under the Marks; and all related advertising, promotional and
other related uses of the Marks by Licensee shall conform to quality standards
set by SureBeam from time to time.
(d) QUALITY MAINTENANCE. Licensee agrees to cooperate with
SureBeam in facilitating SureBeam's maintenance of its quality standards by
permitting reasonable inspection of Licensee's manufacturing facility if
Licensee is manufacturing Licensed Products sold under the Marks and supplying
SureBeam with specimens of all uses of the Marks upon request.
(e) FOR OF USE. Licensee agrees to use the Marks only in the form
and manner and with appropriate legends as reasonably prescribed from time to
time by SureBeam.
2.5 LICENSE TO SUREBEAM. Licensee hereby grants to SureBeam and its
Affiliates a perpetual, irrevocable, nonexclusive, fully paid, royalty-free
license in the Territory and limited to the Reserved Fields: (i) to reproduce,
use, modify any License Improvement; and (ii) to develop, use, improve, modify,
manufacture, have manufactured, offer for sale, market, promote, distribute,
sell, import or otherwise deal in any products incorporating any Licensee
Improvements, for any purpose, in any manner or for any application.
ARTICLE 3
SUBLICENSES
3.1 RIGHT TO GRANT SUBLICENSES. Licensee (or any of its Affiliates) shall
have the right, in its discretion, to sublicense any one or more third parties,
under the rights, and to the full extent, granted to Licensee and its Affiliates
pursuant to Sections 2.1 and 2.3. All such sublicenses shall specifically
exclude the Reserved Fields, shall name SureBeam as a third party beneficiary
and shall acknowledge SureBeam's right to enforce its exclusivity in the
Reserved Fields against such sublicensee.
3.2 TERMS OF SUBLICENSES. Any sublicense granted by Licensee or its
Affiliates under this Agreement shall be subject and subordinate to the terms
and conditions of this Agreement.
ARTICLE 4
CONSIDERATION
In consideration of the amended and restated rights and licenses granted to
Licensee pursuant to this Agreement:
4.1 LICENSE FEE. Licensee shall pay SureBeam a license fee in the amount
of eight million dollars ($8,000,000). Licensee shall pay SureBeam an initial
installment of this license
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fee ("INITIAL INSTALLMENT") in the amount of four million dollars ($4,000,000)
on or before September 30, 2001, and shall pay SureBeam the remaining four
million dollars ($4,000,000) in four equal installments of one million
($1,000,000) each on March 31, 2002, June 30, 2002, September 30, 2002 and
December 31, 2002. SureBeam acknowledges that the Initial Installment has been
received in full by SureBeam prior to the Effective Date, and that the
obligations of Licensee with respect to the Initial Installment have been fully
discharged. The Parties agree and acknowledge that the license fee is
nonrefundable.
4.2 SENIOR CREDIT FACILITY. Licensee shall make available to SureBeam a
senior secured revolving line of credit in the amount of up to fifty million
dollars ($50,000,000) (the "SECURED LINE OF CREDIT") pursuant to a credit
agreement and other credit facility agreements to be negotiated and entered into
between Licensee and SureBeam, subject to Licensee obtaining the consent of the
requisite number of lenders under its Senior Secured Credit Agreement dated as
of February 23, 2000, as subsequently amended ("TITAN CREDIT FACILITY"), to the
extension of the credit facility.
4.3 EXCHANGE AGREEMENTS. Licensee shall exchange the Subordinated
Promissory Note dated August 4, 2001 in the principal amount not to exceed
seventy-five million dollars ($75,000,000) owed by SureBeam to Licensee for
shares of Class B Common Stock and Class A Common Stock of SureBeam Corporation
(the "EXCHANGE") pursuant to an Exchange Agreement to be entered into between
SureBeam Corporation and Licensee, subject to Licensee obtaining the consent of
the requisite number of lenders under the Titan Credit Facility. Licensee and
SureBeam acknowledge that Licensee will exchange two million dollars
($2,000,000) in accrued interest on the Subordinated Promissory Note for 190,385
shares of Class B Common Stock of SureBeam Corporation pursuant to an Exchange
Agreement dated December 31, 2001 between Licensee and SureBeam.
4.4 NO ACCOUNTING. Licensee shall have no obligation to account to
SureBeam in respect of any profits or other consideration that Licensee or its
Affiliates receives in connection with its exploitation of any of the rights and
licenses granted to Licensee pursuant to this Agreement.
ARTICLE 5
IMPROVEMENTS
5.1 IMPROVEMENTS. The parties hereto acknowledge that each of them
intends over the course of this License to continue to develop and improve upon
the Patent Rights, for purposes or applications within or outside of the
Reserved Fields, as the case may be, and that such continued development of and
improvements to the technology licensed hereunder is in their mutual best
interests. As good and valuable consideration for the continued mutual exchange
of such Improvements, the receipt of which is hereby acknowledged, each party
agrees to promptly provide the other with notice of any Improvement conceived,
discovered or developed by such party, such notice being of sufficient detail to
allow the other party to evaluate the scientific and economic aspects of the
Improvement.
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5.2 UPDATES AND UPGRADES. In addition, during the Term (as defined
below), SureBeam shall provide Licensee, promptly, but in no event later than
thirty (30) days after SureBeam first makes them available, with all
enhancements, modifications, update or upgrades (collectively, "UPGRADES") to
the Licensed Software or any modules thereof, in both object and Source Code
forms, at no additional cost to Licensee or Affiliates for use in all fields
other than the Reserved Fields.
ARTICLE 6
OWNERSHIP; INTELLECTUAL PROPERTY
6.1 TITLE; VALIDITY. SureBeam hereby represents and warrants that it
possesses full rights, title and interest in and ownership of (i) the Patent
Rights, (ii) the Licensed Software and Upgrades, and (iii) any Improvements and
Other Intellectual Property developed by SureBeam. SureBeam further represents
and warrants that, to the best of SureBeam's knowledge, its claims of the Patent
Rights are valid. SureBeam agrees and acknowledges that Licensee or its
Affiliates or sublicensees, as applicable, shall retain all rights, title and
interest in and ownership of any Improvements (and Intellectual Property Rights
therein) developed by Licensee or its Affiliates or sublicensees.
6.2 OWNERSHIP OF DERIVATIVE WORKS. Any derivative works, modifications,
enhancements, improvements, translations or other alterations to the Licensed
Software or Upgrades developed, conceived or made by or on behalf of Licensee or
its Affiliates and the Intellectual Property Rights therein shall be the sole
and exclusive property of Licensee, subject to SureBeam's ownership of the
Licensed Software.
6.3 FILING, PROSECUTION AND MAINTENANCE OF PATENT APPLICATIONS. SureBeam,
at its sole cost and expense, shall be responsible for the preparation, filing,
prosecution, defense, protection and maintenance of the Patent Rights and any
Other Intellectual Property. SureBeam and Licensee shall consult and cooperate
on the exercise of any such rights, obligations and duties. Subject to the
foregoing, the parties shall allocate the rights, obligations and duties
regarding such patents and patent applications and other proprietary rights
among themselves as follows:
(a) Licensee shall have the right to reasonably approve any
outside counsel selected by SureBeam with respect to preparation, filing,
prosecution, defense, protection or maintenance of Patent Rights, Improvements
or Other Intellectual Property. SureBeam and Licensee will keep each other and
their respective counsel advised of the status of such preparation, filing,
prosecution, defense, protection or maintenance and shall provide each other and
such counsel with copies of all official communications, amendments and
responses with respect to the patent applications and patents included in the
Patent Rights, Improvements or the Other Intellectual Property and copies of all
complaints, pleadings, briefs, memoranda and other court papers and
correspondence with others relating to the defense of the Patent Rights,
Improvements or Other Intellectual Property ("LITIGATION DOCUMENTS"). All
official communications and Litigation Documents received by either SureBeam or
Licensee and shall be provided promptly to the other, and proposed responses and
amendments or Litigation Documents shall be provided by SureBeam to Licensee for
Licensee's review sufficiently prior
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to filing or other use to allow for review and comment by Licensee; provided
that Licensee's responses will be provided in a timely fashion. SureBeam will
use all reasonable efforts to implement reasonable requests by Licensee with
respect to the foregoing. SureBeam shall not settle any action, suit or
proceedings in defense of any of the Patent Rights, Improvements or Other
Intellectual Property without the prior written consent of Licensee, such
consent not to be withheld unreasonably (which shall include, without
limitation, the right to withhold consent for any settlement that would deprive
Licensee of a material economic benefit from the exploitation of the licensed
rights in any field other than the Reserved Field). Licensee, in its sole
discretion, shall have the right, at Licensee's expense, to participate jointly
with SureBeam in the defense of the Patent Rights, Improvements and/or Other
Intellectual Property, with Licensee's counsel serving in a joint lead counsel
role.
(b) If SureBeam fails to assume the defense of any of the Patent
Rights, Improvements or Other Intellectual Property in accordance with
Section 6.3(a) within fifteen (15) days from receipt of any official
communication or service of any action, suit or proceeding alleging invalidity
or interference of any of the Patent Rights, Improvements or Other Intellectual
Property or otherwise requiring defense of such Patent Rights, Improvements or
Other Intellectual Property, then Licensee shall have the right to assume the
defense of such rights with counsel of Licensee's choice without consulting with
SureBeam and proceed with such defense as Licensee in its sole discretion deems
to be in its best interest for the preservation of its rights under this
Agreement and to enter into any settlements or abandon its defense of any Patent
Rights, Improvements or Other Intellectual Property as it deems to be in its
best interest, all without any duty to protect the interests of SureBeam.
SureBeam shall cooperate with Licensee in connection with any such defense,
including, without limitation, being named as a necessary party, signing court
or other papers, supplying documentary evidence and making witnesses in
SureBeam's employment available.
(c) SureBeam shall pay for all Patent Costs during the Term.
"PATENT COSTS" as used in this Agreement shall mean out-of-pocket expenses
incurred by SureBeam in connection with the preparation, filing, prosecution,
defense, protection or maintenance of patent applications and patents included
within the Patent Rights or Improvements and any other proprietary rights
included within the Other Intellectual Property, including the fees and expenses
of attorneys and patent agents retained by SureBeam and filing fees and
maintenance fees (including, but not limited to, license payments or fees).
Except as provided in Section 6.3(e), such Patent Costs shall also include any
such expenses incurred by Licensee if SureBeam fails to defend any patent
applications and patents included within the Patent Rights or Improvements or
any other proprietary rights included within the Other Intellectual Property and
SureBeam shall promptly reimburse Licensee for any such Patent Costs, as such
Patent Costs are incurred.
(d) Licensee will cooperate with SureBeam in the preparation,
filing and maintenance and prosecution of the patent applications and patents
included in the Patent Rights and any other proprietary rights included within
the Other Intellectual Property by disclosing such information as may be useful,
necessary, or appropriate, including, without limitation, by promptly executing
such documents as SureBeam may reasonably request to effect such efforts.
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(e) If SureBeam decides, at any time, not to file or maintain a
patent application or patent within the Patent Rights or any other proprietary
right within the Other Intellectual Property, SureBeam shall notify Licensee of
such decision and then Licensee shall have the right, but not the obligation, to
file and maintain such application or patent at its own expense and SureBeam
shall assign and transfer such patent application or patent to Licensee and
SureBeam shall cooperate with Licensee to the full extent necessary for such
purpose.
6.4 PATENT AND OTHER INTELLECTUAL PROPERTY ENFORCEMENT. The parties shall
allocate the rights, obligations and duties regarding the enforcement of patents
and patent applications within the Patent Rights and other proprietary rights
within the Other Intellectual Property among themselves as follow:
(a) If either party becomes aware of the infringement of any
Patent Right, Improvement or Other Intellectual Property by any third party it
shall promptly notify the other in writing, but in all events within
fifteen (15) days and provide all relevant information known to such party.
(b) SureBeam shall be solely responsible for enforcing the Patent
Rights, Improvement or Other Intellectual Property Rights (each, an "ENFORCEMENT
ACTION") in the Reserved Fields and shall pay all expert, legal and other costs
or expenses related thereto (collectively, the "EXPENSES"). Licensee shall have
the right to reasonably approve any outside counsel selected by SureBeam with
respect to any Enforcement Action by SureBeam. Licensee shall be solely
responsible for Enforcement Actions in fields other than any of the Reserved
Fields and shall pay all Expenses related thereto. SureBeam shall have the right
to reasonably approve any outside counsel selected by Licensee with respect to
any Enforcement Action by Licensee. If either party wants to bring an
Enforcement Action that relates both to the Reserved Field and any other field,
then it shall confer with the other party and if the other party agrees to the
proposed Enforcement Action, then the parties shall jointly pursue the
Enforcement Action and share the Expenses relating to such Enforcement Action in
accordance with the parties' agreement. Each of SureBeam and Licensee shall have
the right, at its expense, to participate jointly in any Enforcement Action
brought by the other party. If either party fails to bring any Enforcement
Action for which is it is responsible within a reasonable period of time after
becoming aware of the infringement, the other party, in its sole discretion, and
at its cost, may bring such Enforcement Action. Each party shall cooperate with
the other party in connection with any Enforcement Action, including, without
limitation, being named as a necessary party, signing court or other papers,
supplying documentary evidence and making witnesses in such party's employment
available.
(c) SureBeam and Licensee will keep each other and their
respective counsel advised of the status of any Enforcement Action and shall
provide each other and such counsel with copies of all complaints, pleadings,
briefs, memoranda and other court papers and correspondence with others relating
to the Enforcement Action ("ENFORCEMENT DOCUMENTS"). Any Enforcement Documents
received by either SureBeam or Licensee and shall be provided promptly to the
other, and proposed Enforcement Documents shall be provided by the party
responsible for the Enforcement Action to the other party for review
sufficiently prior to filing or other use to allow for review and comment by the
other party; provided that such other party's responses will be provided in a
timely fashion. The party responsible for the Enforcement
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Action will use all reasonable efforts to implement reasonable requests by the
other party with respect to the foregoing. Neither party shall settle any
Enforcement Action, without the prior written consent of the other party, such
consent not to be withheld unreasonably, except no prior written consent shall
be required if the settlement entitles the party responsible for the Enforcement
Action to receive recoveries, damages or awards, the Enforcement Action did not
include claims relating to any field belonging to the other party under this
Agreement and the settlement does not involve any covenants, injunctions, orders
or decrees that materially affect or could reasonably be expected to materially
affect the rights of the other party to exploit its rights in any of the Patent
Rights, Improvements or Other Intellectual Property.
(d) Any and all recoveries, damages and awards (collectively, the
"RECOVERIES") resulting from such Enforcement Action, after reimbursement of the
party responsible for the Enforcement Action their related Expenses incurred in
connection therewith, shall belong to SureBeam if they relate to the Reserved
Fields or to Licensee if they relate to any other field or will be shared by
SureBeam and Licensee based upon the proportion of Recoveries allocated to the
Reserved Fields and to other fields.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
7.1 LEGAL AUTHORITY. Each party represents and warrants to the other that
(i) it is a corporation or entity duly organized and validly existing under the
laws of the jurisdiction of its incorporation or formation; (ii) it has the
legal power, authority and right to enter into, and perform its obligations
under, this Agreement; and (iii) the execution, delivery and performance of this
Agreement by each such party has been duly authorized by all requisite corporate
action.
7.2 NO CONFLICTS. Each party represents and warrants that as of the
Effective Date of this Agreement it is not, and that it will not during the Term
become, a party to any agreement or arrangement with any third party or be
subject to any obligation or restriction which in any way limits or conflicts
with the implementation of this Agreement or its ability to fulfill any of its
obligations under this Agreement.
7.3 NO KNOWN INFRINGEMENT. SureBeam hereby represents and warrants that,
to the best of SureBeam's knowledge, the Patent Rights relate to technology and
methods that may be practiced without infringing the Intellectual Property
Rights (as defined in EXHIBIT A) of any third party. In addition, SureBeam
represents and warrants that as of the date of this Agreement, the Licensed
Software, Upgrades and each module or component thereof, do not and will not
infringe or violate any third party's Intellectual Property Rights or other
rights.
7.4 THIRD PARTY SOFTWARE. SureBeam hereby represents and warrants that
EXHIBIT B contains a complete and accurate list of all third party software
required by Licensee in order to enable the Licensed Software to function as its
current application of operating and control SureBeam irradiation systems for
use in the irradiation of food.
7.5 VIRUSES. SureBeam hereby represents and warrants that the Licensed
Software, Upgrades and the media on which the Licensed Software is furnished to
Licensee, when and as delivered to Licensee, will contain no Viruses. Without
limiting this warranty, SureBeam shall
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use a commercially-available anti-virus screening program to screen the media
containing the Licensed Software and the Licensed Software before delivery of
such media or Licensed Software to Licensee.
7.6 DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH IN
SECTIONS 6.1, 7.1, 7.2 AND 7.3 OF THIS AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATIAON OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PATENT
RIGHTS, IMPROVEMENTS, LICENSED SOFTWARE, UPGRADES OR OTHER INTELLECTUAL
PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. EXCEPT
WITH RESPECT TO A BREACH OF SECTION 6.1, 7.1, 7.2 OR 7.3, OR A PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 8, IN NO EVENT WILL EITHER PARTY, ITS
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE TO THE OTHER
PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT,
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING OUT
OF THIS AGREEMENT.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION BY LICENSEE. Licensee agrees to indemnify SureBeam,
and its directors, officers, stockholders and employees, and to hold such
parties harmless from any action, claim, or liability, including without
limitation liability for death, personal injury, and/or property damage, arising
out of (i) the use by Licensee or its Affiliates or sublicensees of any
Improvements developed by Licensee or its Affiliates or sublicensees, or
(ii) any breach by Licensee of Section 7.1 or 7.2; provided, however, that such
indemnification shall not apply to any claims resulting from the willful
misconduct, negligence or fraud of SureBeam, its directors, officers,
stockholders or employees.
8.2 INDEMNIFICATION BY SUREBEAM. SureBeam agrees to indemnify Licensee,
and its directors, officers, stockholders and employees, and to hold such
parties harmless from any action, claim, or liability, including without
limitation liability for death, personal injury, Intellectual Property Rights
infringement and/or property damage, arising out of (i) the use of any Other
Intellectual Property or any Improvements developed by SureBeam or its
Affiliates or sublicensees, or (ii) any breach by SureBeam of Section 6.1, 7.1,
7.2 or 7.3; provided, however, that such indemnification shall not apply to any
claims resulting from the willful misconduct, negligence or fraud of Licensee,
its directors, officers, stockholders or employees.
8.3 PROCEDURE. In the event of the assertion or commencement by any
person of any claim or legal proceeding with respect to which a party
(the "INDEMNIFYING PARTY") may become obligated to hold harmless, indemnify,
compensate or reimburse any person entitled to indemnification pursuant to
Section 8.1 or 8.2, as applicable (the "INDEMNIFIED PARTY"), the Indemnifying
Party shall defend such claim or legal proceeding, subject to the following:
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(a) all reasonable legal, expert and other expenses relating to
the defense of such claim or legal proceeding shall be borne and paid
exclusively by the Indemnifying Party;
(b) each Indemnified Party shall make available to the
Indemnifying Party any documents and materials in its possession or control that
may be necessary to the defense of such claim or legal proceeding; and
(c) The Indemnifying Party shall have the right to settle, adjust
or compromise such claim or legal proceeding with the consent of the Indemnified
Party, which will not unreasonably be withheld. Consent may not be withheld if
the Indemnified Party receives, as part of the settlement or compromise, an
unconditional release relating to such claim or legal proceeding.
ARTICLE 9
CONFIDENTIALITY
A party receiving or gaining access to Confidential Information of the
other party will: (a) maintain in confidence such Confidential Information to
the same extent the receiving party maintains its own proprietary information;
(b) not disclose such Confidential Information to any third party without prior
written consent of the disclosing party, other than to Affiliates, employees,
agents, consultants, permitted sublicensees and other representatives of the
receiving solely to the extent necessary to accomplish the purposes of this
Agreement, so long as such persons are under an obligation of confidentiality no
less stringent than as set forth herein; and (c) not use such Confidential
Information for any purpose, whether for its own benefit or the benefit of any
third party, except (i) as expressly authorized by this Agreement, or (ii) as
required by law, rule, regulation or court order (provided that the disclosing
party will use commercially reasonable efforts to obtain confidential treatment
of any such information required to be disclosed). Each party will promptly
notify the other party upon discovery of any unauthorized use or disclosure of
the other party's Confidential Information.
ARTICLE 10
TERM AND TERMINATION
10.1 TERM. Unless earlier terminated in accordance with this Article 10,
this Agreement shall begin on the Effective Date and shall remain in effect for
the life of the last-to-expire patent within the Patent Rights (the "TERM").
10.2 TERMINATION FOR BREACH. If, at any time during the Term, a party to
this Agreement breaches a material provision or term of this Agreement, and has
not cured such breach within sixty (60) days after its receipt of written notice
thereof from the non-breaching party, then such non-breaching party shall have
the right to terminate this Agreement effective upon written notice to the
breaching party, whereupon all rights and obligations of the parties under this
Agreement shall terminate except as set forth in Section 11.9.
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10.3 REMEDIES. In the event of any breach of any provision of this
Agreement, in addition to the termination rights set forth herein, each party
shall have all other rights and remedies at law or equity to enforce this
Agreement.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 INDEPENDENT CONTRACTORS. In making and performing this Agreement,
SureBeam and Licensee act and shall act at all times as independent contractors
and nothing contained in this Agreement shall be construed or implied to create
an agency, partnership or employer and employee relationship between SureBeam
and Licensee. At no time shall one party make commitments or incur any charges
or expenses for or in the name of the other party except as specifically
provided herein.
11.2 FURTHER ASSURANCE. Each party hereto shall execute and cause to be
delivered to each other party hereto such instruments and other documents, and
shall take such other actions, as such other party may reasonably request for
the purpose of carrying out or evidencing any of the transactions contemplated
by this Agreement.
11.3 EXPENSES. Except as otherwise provided herein, all costs and expenses
incurred in connection with the transactions contemplated by this Agreement
shall be paid by the party incurring such costs and expenses.
11.4 ASSIGNMENT; BINDING EFFECT. Except as expressly provided hereunder,
neither this Agreement, nor any rights or obligations hereunder, may be assigned
or delegated by either party without the prior written consent of the other
party (which consent shall not be unreasonably withheld); PROVIDED, HOWEVER,
that either party may assign and delegate this Agreement without the other
party's consent to any of its Affiliates or in connection with a merger,
acquisition or reorganization involving the assigning party or the transfer or
sale of all or substantially all of the business of the assigning party; AND
PROVIDED FURTHER, that the assignee previously assumes in writing all
obligations of the assigning party. Notwithstanding the foregoing, any such
assignment to an Affiliate shall not relieve the assigning party of its
responsibilities for performance of its obligations under this Agreement. The
rights and obligations of the parties under this Agreement shall be binding upon
and inure to the benefit of the successors and permitted assigns of the parties.
Any assignment not in accordance with this Section 11.4 shall be null and void.
11.5 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered or certified mail (return receipt requested), by courier or express
delivery service or by facsimile or other electronic transmission, with the
original by mail) to the address or facsimile number set forth on the signature
pages by the name of such party (or to such other address or facsimile number as
such party shall have specified in a written notice given to the other party
hereto).
11
11.6 AMENDMENT. No amendment, modification or supplement of any provision
of this Agreement will be valid or effective unless made in writing and signed
by a duly authorized officer of each party.
11.7 WAIVER. No provision of this Agreement, unless such provision
otherwise provides, will be waived by any act, omission or knowledge of a party
or its agents or employees except by an instrument in writing expressly waiving
such provision and signed by a duly authorized officer of the waiving party.
11.8 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
11.9 POST-TERMINATION/SURVIVAL. Expiration or termination of this
Agreement for any reason shall not relieve the parties of any obligation
accruing prior to such termination or expiration, and Articles 2, 3, 5, 7, 8, 9
and 11 shall survive termination or expiration of this Agreement for any reason.
Upon any termination or expiration of this Agreement, each party shall return to
the disclosing party, and purge from its electronic and other records, all
Confidential Information of the disclosing party.
11.10 ENTIRE AGREEMENT. This Agreement (and Exhibit A attached and
incorporated herein) constitutes the sole, final and entire agreement between
the parties with respect to the subject matter hereof and supersedes and
terminates all prior agreements and understandings between the parties with
respect thereto including, without limitation, the License Agreement. No
amendment or modification of this Agreement shall be binding upon either party
unless made in writing and signed by both parties.
11.11 OTHER AGREEMENTS. Except as expressly set forth in this Agreement,
nothing in this Agreement shall limit any of the rights, remedies or obligations
of the parties under any other agreement between SureBeam and Licensee.
11.12 GOVERNING LAW; JURISDICTION AND VENUE; INJUNCTIVE RELIEF. This
Agreement shall be construed in accordance with, and governed and enforced in
all respects by, the internal laws of the State of California (without giving
effect to principles of conflicts of law). In any legal action relating to this
Agreement, each party agrees to the exercise of jurisdiction over it by a state
court in San Diego County, California or a federal court in the Southern
District of California. Notwithstanding the preceding sentence or the provisions
of Section 11.14, either party may immediately seek injunctive relief with
respect to breaches of Articles 7 or 9 in any court otherwise having
jurisdiction.
11.13 ESCALATION PROCEDURE FOR DISPUTE RESOLUTION. The parties shall seek
to resolve any dispute arising under this Agreement in accordance with the
procedure set forth in this Section 11.13. Prior to undertaking any legal action
to enforce any provision of this Agreement,
12
the party contemplating such enforcement shall provide written notice to the
other party of the contemplated legal action and shall briefly describe the
nature of the dispute between the parties relating to such action. If after
negotiating in good faith the parties are unable to resolve the dispute within
twenty (20) days of the other party's receipt of such written notice, then the
dispute will be referred to the Chief Executive Officer of Licensee and of
SureBeam respectively, or their designees, for good faith resolution for a
period of fifteen (15) days. If the parties fail to resolve the dispute within
such fifteen-day period, either party may pursue any remedies available to under
this Agreement.
11.14 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
11.15 CONSTRUCTION.
(a) Headings of the Sections of this Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(b) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
masculine and feminine genders.
(c) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(d) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(e) Except as otherwise indicated, all references in this
Agreement to "Sections" are intended to refer to Sections of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
SB OPERATINGCO, INC.
a Delaware Corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Print Name: Xxxxx Xxxx
-----------------------------
Title: SVP-CFO
----------------------------------
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Corporate Secretary
THE TITAN CORPORATION
a Delaware Corporation
By: /s/ Xxxx X. Xxxx
-------------------------------------
Print Name: Xxxx X. Xxxx
-----------------------------
Title: Sr. VP and CFO
----------------------------------
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Corporate Secretary
[LICENSE AGREEMENT SIGNATURE PAGE]
EXHIBIT A
DEFINITIONS
"AFFILIATE" means any entity that directly or indirectly Owns, is Owned by
or is under common Ownership, with a party to this Agreement, where "Owns" or
"Ownership" means direct or indirect possession of at least fifty percent of the
outstanding voting securities of a corporation or a comparable equity interest
in any other type of entity.
"CONFIDENTIAL INFORMATION" means any proprietary information of a party,
including information relating to the Patent Rights and Improvements and Other
Intellectual Property, and any information relating to any discoveries,
inventions, data, know-how, trade secrets, techniques, methods, materials, data,
patent and legal data or descriptions, research project, work in process, future
development, scientific, engineering, manufacturing, marketing, business plan,
financial or personnel matter relating to such party, its present or future
products, sales, suppliers, customers, employees, investors or business, whether
in oral, written, graphic or electronic form. Notwithstanding the foregoing,
Confidential Information will not include any information that the receiving
party can prove by competent written evidence:
(a) is now, or hereafter becomes, through no act or failure to act
on the part of the receiving party, generally known or available;
(b) is known to, and may be used without restriction by, the
receiving party at the time of receiving such information, as evidenced by its
records;
(c) is hereafter furnished to the receiving party by a third
party, as a matter of right and without restriction on disclosure;
(d) is independently developed by the receiving party without the
aid, application or use of proprietary information of the other party then
subject to the confidentiality or use restrictions of this Agreement.
"DERIVATIVE WORK" means any software program or programs that are
derivative works of the Licensed Software that are created by or for Licensee or
its Affiliates.
"IMPROVEMENTS" mean all inventions, data, know-how, methods, materials or
discoveries, whether patentable or not, conceived, discovered or developed by
employees or agents of SureBeam or Licensee, or their respective Affiliates in
the field of irradiation.
"LICENSED SOFTWARE" means the information and control software programs,
(including any and all modules thereto) known as the SureTrack system, used to
operate and control the SureBeam irradiation systems, both in object code and in
Source Code forms, and any modified, updated or enhanced versions of such
programs developed by SureBeam or its Affiliates from time to time.
"PATENT RIGHTS" means SureBeam's rights, either by ownership, assignment or
license with a right to sublicense, under the patents and patent applications
listed on Exhibit A-1 hereto and any patents and patent applications claiming
any Improvement. "Patent Rights" include,
A-1
without limitation, all rights arising under any jurisdiction in the Territory
under patents and patent applications, and any and all patents issuing therefrom
or claiming priority thereto (including utility, model and design patents and
certificates of invention), together with any and all substitutions, extensions
(including supplemental protection certificates), registrations, confirmations,
reissues, divisionals, continuations, continuations-in-part, re-examinations,
renewals and foreign counterparts of the foregoing.
"LICENSED PRODUCTS" means any product made with, from, using, practicing or
incorporating all or any Patent Rights or Improvements, Licensed Software or
Other Intellectual Property.
"INTELLECTUAL PROPERTY (RIGHTS)" means an entity's rights, either by
ownership, assignment or license with a right to sublicense, under all trade
secrets, inventions, invention disclosures, patents, patent registrations,
mask-works and mask-work registrations, know-how, discoveries, designs,
copyrights, copyright registrations, data rights or applications or works of
authorship of such entity, whether arising under the laws of any jurisdiction in
the Territory or any international treaty.
"OTHER INTELLECTUAL PROPERTY (RIGHTS)" means SureBeam's Intellectual
Property Rights that are not covered by the Patent Rights but are related to or
used in any field other than the Reserved Fields and that exist as of the
Effective Date.
"RESERVED FIELDS" means the following applications or fields of use:
(i) irradiation or pasteurization of any type or category of food (including,
without limitation, meat, fish, eggs, seafood, fruits, vegetables, and spices),
(ii) irradiation or x-ray inspection of animal hides, and (iii) irradiation or
x-ray inspection of flowers. The Reserved Field shall not include the
irradiation or purification or other processing of water for any purpose,
including human consummation, and water shall not be considered as a category of
food.
"SOURCE CODE" means the human-readable version of a software program that
can be complied into machine-readable object code together with any and all
existing documentation related to such human-readable code necessary to assist a
software engineer in modifying, maintaining or operating such software code,
include without limitation, code commentary and explanations, diagrams and code
architecture related thereto.
"TERRITORY" means every country and territory worldwide.
"VIRUS" means any computer code designed to (a) disrupt, disable, harm or
otherwise impede in any manner the operation of a computer program or computer
system or (b) damage or destroy any data files residing on a computer system
without the user's consent.
X-0
XXXXXXX X-0
SUREBEAM PATENT RIGHTS
UNITED STATES PATENTS
----------------------------------------------------------------------------------------------------------------------
TITLE OF PATENT PATENT NUMBER ISSUE DATE
----------------------------------------------------------------------------------------------------------------------
Conveyor System Utilizing Article Carriers 5,590,602 1/7/97
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System in which Article-Transporting 5,994,706 11/30/99
Conveyor is Closely Encompassed By Shielding Material
----------------------------------------------------------------------------------------------------------------------
Irradiation System Utilizing Conveyor Transported Article 5,396,074 3/7/95
Carriers
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System Having Intermediate Wall of 6,127,687 10/3/00
Radiation Shielding Material within Loop of Conveyor System
that Transports the Articles
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System Having Intermediate Wall of 6,294,791 9/25/01
Radiation Shielding Material within Loop of Conveyor System
that Transports the Articles
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System in which Article Transporting 6,285,030 9/4/01
Conveyor is Closely Encompassed by Shielding Material
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System Having Intermediate Wall of 6,236,055 5/22/01
Radiation Shielding Material within Loop of Conveyor System
that Transports the Articles
----------------------------------------------------------------------------------------------------------------------
UNITED STATES PATENT APPLICATIONS
---------------------------------------------------------------- ------------------------------ ----------------------
TITLE OF PATENT APPLICATION APPLICATION SERIAL NO. FILING DATE
----------------------------------------------------------------------------------------------------------------------
Apparatus for, and Methods of, Sterilizing Products, Primarily 09/456,061 12/7/99
Food Products
----------------------------------------------------------------------------------------------------------------------
Apparatus for, and Methods of, Sterilizing Products, Primarily 60/141781 6/30/99
Food Products
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Opposite Sides of 09/710730 11/10/00
Articles with Optimal Amounts of Cumulative Irradiation
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Article with X-Xxx Xxxx 09/753287 12/29/00
----------------------------------------------------------------------------------------------------------------------
A-1-1
---------------------------------------------------------------- ------------------------------ ----------------------
TITLE OF PATENT APPLICATION APPLICATION SERIAL NO. FILING DATE
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Food Products 09/872131 6/1/01
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Articles Particularly 09/881257 6/13/01
Articles with Variable Dimensions
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Articles 09/872441 6/1/01
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Articles 09/912576 6/24/01
----------------------------------------------------------------------------------------------------------------------
Compact Self-Shielding Irradiation System and Method 09/971986 10/4/01
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Opposite Side of 09/964785 9/26/01
Articles with Optimal Amounts of Cumulative Irradiation
----------------------------------------------------------------------------------------------------------------------
A-1-2
INVENTION DISCLOSURE
----------------------------------------------------------------------------------------------------------------------
TITLE OF INVENTION DISCLOSURE INVENTORS
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Sterilizing Golf Ball to Increase --
Ball's Flight Distance
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Converting Electron Beam to X-Ray --
Beam
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Irradiating Article Inventors Xxxx Xxxxxx Xxxxx; Xxxx X. Xxxx;
Xxxxxx X. Xxxxxxxx; Xxxxx X. Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
Fixtures for Providing an Irradiation within Acceptable Limits Xxxx X. Xxxx;
Xxxx Xxxxxx Xxxxx
----------------------------------------------------------------------------------------------------------------------
Combined Beam Splitter/Beam Scanner for Double Sided Radiation Xxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Providing Irradiation Xxxx X. Xxxx; Xxxx X. Xxxxxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
System for, and Method of, Scanning an Accelerator Xxxxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
Article Irradiation System Having Intermediate Wall of Xxxxxx X. Xxxxxxxx; Xxxx Xxxxxx Xxxxx;
Radiation Shielding Material within Loop of a Conveyor System Xxxxx X. Xxxxxxxx
that Transports the Articles
----------------------------------------------------------------------------------------------------------------------
X-0-0
XXXXXXX X-0
XXXXXXXXXX
XX OPERATINGCO, INC.
TRADEMARK CHART
UPDATED AS OF DECEMBER 7, 2001
=====================================================================================================================
SERIAL NO. (SN)/ STATUS
COUNTRY XXXX REG. NO. (RN)
=====================================================================================================================
Argentina GOOD FOOD, MADE BETTER, Awaiting serial number and Unfiled
in class 40 confirmation of application filed
from local counsel
---------------------------------------------------------------------------------------------------------------------
Australia GOOD FOOD, MADE BETTER, (SN) 894010 Pending
in class 40
---------------------------------------------------------------------------------------------------------------------
Australia SUREBEAM in classes 9 & (SN) 865938 Allowed for
40 Registration
---------------------------------------------------------------------------------------------------------------------
Brazil GOOD FOOD, MADE BETTER, Awaiting serial number and Unfiled
in class 40 confirmation of application filed
from local counsel
---------------------------------------------------------------------------------------------------------------------
Brazil SUREBEAM in class 9 (SN) 822,218,100 Published
---------------------------------------------------------------------------------------------------------------------
Brazil SUREBEAM in class 40 (SN) 822,218,119 Published
---------------------------------------------------------------------------------------------------------------------
Canada SUREBEAM in classes 9 & (SN) 1068730 Pending
40
---------------------------------------------------------------------------------------------------------------------
China SUREBEAM in class 9 (SN) 0000000000 Pending
---------------------------------------------------------------------------------------------------------------------
China SUREBEAM in class 40 (SN) 0000000000 Pending
---------------------------------------------------------------------------------------------------------------------
Egypt SUREBEAM in class 9 (SN) 144891 Pending
---------------------------------------------------------------------------------------------------------------------
Egypt SUREBEAM in class 40 (SN) 144892 Pending
---------------------------------------------------------------------------------------------------------------------
Guatemala GOOD FOOD, MADE BETTER, Awaiting serial number and Unfiled
in class 40 confirmation of application filed
from local counsel
---------------------------------------------------------------------------------------------------------------------
Guatemala SUREBEAM in class 9 (SN) 07579 Pending
---------------------------------------------------------------------------------------------------------------------
Guatemala SUREBEAM in class 40 (SN) 07580 Pending
------------------------------- -------------------------- ------------------------------------ ---------------------
Indonesia SUREBEAM in class 9 (SN) 16501-16604 Pending
---------------------------------------------------------------------------------------------------------------------
Indonesia SUREBEAM in class 40 (SN) 16502-16605 Published
---------------------------------------------------------------------------------------------------------------------
India SUREBEAM in class 9 (SN) 1012183 Pending
---------------------------------------------------------------------------------------------------------------------
Jordan SUREBEAM in class 9 Awaiting serial number from local Pending
counsel
---------------------------------------------------------------------------------------------------------------------
Jordan SUREBEAM in class 40 Awaiting serial number from local Pending
counsel
---------------------------------------------------------------------------------------------------------------------
Japan GOOD FOOD, MADE BETTER, Awaiting serial number and Unfiled
in class 40 confirmation of application filed
from local counsel
---------------------------------------------------------------------------------------------------------------------
Japan SUREBEAM in classes 9 & (SN) 2000-097384 Published
40
---------------------------------------------------------------------------------------------------------------------
Kuwait SUREBEAM in class 40 (SN) 52208 Pending
---------------------------------------------------------------------------------------------------------------------
Lebanon SUREBEAM in classes 9 & (RN) 88045 Registered
40
---------------------------------------------------------------------------------------------------------------------
Mexico GOOD FOOD, MADE Awaiting serial number and Unfiled
---------------------------------------------------------------------------------------------------------------------
A-2-1
=====================================================================================================================
SERIAL NO. (SN)/ STATUS
COUNTRY XXXX REG. NO. (RN)
=====================================================================================================================
BETTER, in class 40 confirmation of application filed
from local counsel
---------------------------------------------------------------------------------------------------------------------
Mexico SUREBEAM in class 9 (SN) 496290 Pending
---------------------------------------------------------------------------------------------------------------------
Mexico SUREBEAM in class 40 (SN) 496291 Pending
---------------------------------------------------------------------------------------------------------------------
New Zealand SUREBEAM in Class 9 and (SN) 651386 Accepted for
40 (SN) 651387 Registration 1/23/02
---------------------------------------------------------------------------------------------------------------------
New Zealand GOOD FOOD, MADE BETTER, (SN) 647625 Pending
in class 40
---------------------------------------------------------------------------------------------------------------------
Oman SUREBEAM in class 9 (SN) 25945 Pending
---------------------------------------------------------------------------------------------------------------------
Oman SUREBEAM in class 40 (SN) 25946 Pending
---------------------------------------------------------------------------------------------------------------------
Panama SUREBEAM in class 9 (SN) 117604 Pending
---------------------------------------------------------------------------------------------------------------------
Panama SUREBEAM in class 40 (SN) 115892 Pending
---------------------------------------------------------------------------------------------------------------------
Philippines GOOD FOOD, MADE BETTER, Awaiting serial number from local Pending
in class 40 counsel
---------------------------------------------------------------------------------------------------------------------
Philippines SUREBEAM in classes (SN) 4-2001005137 Pending
9 & 40
---------------------------------------------------------------------------------------------------------------------
Pakistan SUREBEAM in class 9 (SN) 172685 Pending
---------------------------------------------------------------------------------------------------------------------
Pakistan SUREBEAM in class 16 (SN) 173569 Pending
---------------------------------------------------------------------------------------------------------------------
Qatar SUREBEAM in class 9 (SN) 25783 Pending
---------------------------------------------------------------------------------------------------------------------
Qatar SUREBEAM in class 40 (SN) 25784 Pending
---------------------------------------------------------------------------------------------------------------------
Russia SUREBEAM in class 9 (SN) 2001721891 Pending
---------------------------------------------------------------------------------------------------------------------
Russia SUREBEAM in class 40 (SN) 2001721845 Pending
---------------------------------------------------------------------------------------------------------------------
Saudi Arabia GOOD FOOD, MADE BETTER, (SN) 73859 Pending
in class 40
---------------------------------------------------------------------------------------------------------------------
Saudi Arabia SUREBEAM in class 9 (SN) 71887 Pending
---------------------------------------------------------------------------------------------------------------------
Saudi Arabia SUREBEAM in class 40 (SN) 71888 Pending
---------------------------------------------------------------------------------------------------------------------
South Africa SUREBEAM in class 9 (SN) 2001/12160 Pending
---------------------------------------------------------------------------------------------------------------------
South Africa SUREBEAM in class 40 (SN) 2001/12161 Pending
---------------------------------------------------------------------------------------------------------------------
South Korea SUREBEAM in class 7 (SN) 40200051220 Published
---------------------------------------------------------------------------------------------------------------------
South Korea SUREBEAM in class 9 (SN) 40200041625 Published
---------------------------------------------------------------------------------------------------------------------
South Korea SUREBEAM in class 40 (SN) 41200023540 Pending
---------------------------------------------------------------------------------------------------------------------
Spain SUREBEAM in class 9 (SN) 2351499 Published
---------------------------------------------------------------------------------------------------------------------
Spain SUREBEAM in class 37 (SN) 2414906 Published
---------------------------------------------------------------------------------------------------------------------
Spain SUREBEAM in class 40 (SN) 2346640 Published
---------------------------------------------------------------------------------------------------------------------
Thailand SUREBEAM in class 9 (SN) 472133 Pending
---------------------------------------------------------------------------------------------------------------------
Thailand SUREBEAM in class 40 (SN) 472134 Pending
---------------------------------------------------------------------------------------------------------------------
Turkey GOOD FOOD, MADE BETTER, (SN) 2001-22756 Pending
in class 40
---------------------------------------------------------------------------------------------------------------------
Turkey SUREBEAM in classes 9 & Awaiting serial number from local Pending
40 counsel
---------------------------------------------------------------------------------------------------------------------
United Arab Emirates SUREBEAM in class 9 (SN) 44556 Pending
---------------------------------------------------------------------------------------------------------------------
United Arab Emirates SUREBEAM in class 40 (SN) 44557 Pending
---------------------------------------------------------------------------------------------------------------------
A-1-2
=====================================================================================================================
SERIAL NO. (SN)/ STATUS
COUNTRY XXXX REG. NO. (RN)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxx Xxxxxx GOOD FOOD, MADE BETTER, (SN) 76/326,832 Pending
in class 40
---------------------------------------------------------------------------------------------------------------------
United States SAFER FRESHER BETTER in (SN) 76/326,461 Pending
class 40
---------------------------------------------------------------------------------------------------------------------
United States SERVE WITH CONFIDENCE in (SN) 76/264,588 Pending
class 40
---------------------------------------------------------------------------------------------------------------------
United States SERVE WITH CONFIDENCE in (SN) 76/264,589 Pending
class 40
---------------------------------------------------------------------------------------------------------------------
United States SUREBEAM in class 9 (SN) 76/260,478 Published
---------------------------------------------------------------------------------------------------------------------
United States SUREBEAM in class 40 (RN) 1,855,367 Registered
---------------------------------------------------------------------------------------------------------------------
Untied States SUREBEAM & Design in (SN) 76/326,834 Pending
class 40
---------------------------------------------------------------------------------------------------------------------
United States SUREMAIL in class 40 (SN) 76/335,335 Pending
---------------------------------------------------------------------------------------------------------------------
United States YOUR FAVIORITE FOODS (SN) 76/264,590 Pending
MADE BETTER in class 40
---------------------------------------------------------------------------------------------------------------------
Yemen SUREBEAM in class 9 Awaiting serial number from local Pending
counsel
---------------------------------------------------------------------------------------------------------------------
A-1-3
EXHIBIT B
THIRD PARTY SOFTWARE
ITEM NUMBER DESCRIPTION VENDOR
-----------------------------------------------------------------------------------------------------------------
1 RSLogix5000 Rockwell Software
-----------------------------------------------------------------------------------------------------------------
2 RSNetworx for DeviceNet Rockwell Software
-----------------------------------------------------------------------------------------------------------------
3 RSNetworx for ControlNet Rockwell Software
-----------------------------------------------------------------------------------------------------------------
4 RSLogix5 Rockwell Software
-----------------------------------------------------------------------------------------------------------------
5 PCAnywhere 10.0 Symantec
-----------------------------------------------------------------------------------------------------------------
6 Safety Maintenance software for PSS safety PLC systems Xxxx
-----------------------------------------------------------------------------------------------------------------
7 GML Commander Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------
8 RSView32 Works, 5000 tag Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------
9 Disk Keeper Software Executive Software
-----------------------------------------------------------------------------------------------------------------
10 Windows 2000 server, 5 user license Microsoft
-----------------------------------------------------------------------------------------------------------------
11 Microsoft SQL server 2000 with 5 user license Microsoft
-----------------------------------------------------------------------------------------------------------------
12 RSLinx Professional Xxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------
13 Windows NT 4.0 server, 5 user license Microsoft
-----------------------------------------------------------------------------------------------------------------
14 Microsoft SQL server 7 with 5 user license Microsoft
-----------------------------------------------------------------------------------------------------------------
15 Norton Anti Virus Symantec
-----------------------------------------------------------------------------------------------------------------
16 Microsoft Office Micosoft
-----------------------------------------------------------------------------------------------------------------
B-1
