EXHIBIT 10.25
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A TRIPLE ASTERISK
(***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.]
[ADAPTIVE NETWORKS LOGO] [NEWVISUAL CORPORATION LOGO]
AMENDED AND RESTATED DEVELOPMENT AND LICENSE AGREEMENT
This Amended and Restated Development and License Agreement (this "Agreement")
is made and entered into as of November 29, 2004 (the "Effective Date") by and
between Adaptive Networks, Inc. ("ANI"), a Massachusetts corporation with its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, and New Visual
Corporation ("NVC"), a Utah corporation with its principal place of business at
0000 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (individually hereinafter
sometimes a "Party" and collectively, the "Parties"). Capitalized terms used
herein without definition are defined in Section 2.
Background
WHEREAS, ANI and NVC are parties to the Prior Agreement and wish to amend and
restate the Prior Agreement as provided in this Agreement;
WHEREAS, ANI is the owner of and is developing certain technologies for
communications over various media, including powerlines and copper telephone
wire, that are degraded by noise, signal attenuation and/or signal distortion;
WHEREAS, NVC is the owner of and is developing certain technologies for
high-speed communications over metallic media, including copper telephone wire;
WHEREAS, NVC desires to receive from ANI, and AN! desires to grant to NVC, a
perpetual, worldwide right and license to its PowerStream Technology in the
Field;
WHEREAS, NVC and ANI have been jointly working to develop MWB Technology;
WHEREAS, NVC desires to engage HelloSoft (as defined below) to perform certain
development services for it pursuant to the terms of the Developer Agreement;
and
WHEREAS, ANI and NVC desire to clarify their ownership rights in the MWB IP and
MWB Deliverables;
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NOW, THEREFORE, in consideration of the mutual promises, obligations and
agreements contained herein and other good and valuable consideration, the
receipt and adequacy of which each party acknowledges, and intending to be
legally bound, the parties hereto agree as follows:
1. Purpose and Scope of Agreement
This Agreement sets forth the terms and conditions under which the
PowerStream Technology is licensed to NVC and clarifies the respective
rights of NVC and ANI in the MWB IP and MWB Deliverables. The Prior
Agreement is hereby amended and restated in its entirety, and except as
amended and restate herein, the Prior Agreement shall hereafter be void
and of no effect.
2. Definitions
2.1 "Affiliate" of a Party means any person that is directly or indirectly
controlled by, under common control with, or that controls such Party.
2.2 "Code" means programming instructions for any Deliverables. Unless
otherwise stated herein, to the extent applicable, Code includes, but
is not limited to, the following Deliverables: chip design code,
firmware, system simulation software, source code, system modules,
emulations, test benches, design validation code, run time software,
and object code.
2.3 "Competitor" of a Party shall mean any person that is not an Affiliate
of such Party that derives substantial revenues at the relevant time
from the sale or license of products, services or intellectual property
directly competitive with those of such Party, or is actively preparing
to do so.
2.4 "Deliverables" means MWB Deliverables and PowerStream Deliverables.
2.5 "Documentation" means any information in any medium, including training
materials, pertaining to the Deliverables, including product
descriptions, specifications, reference designs and technical manuals.
2.6 "Error" means any of the following:
(1) "Code Error" means Code that does not meet the Specifications
for any applicable Deliverables.
(2) "Documentation Error" means a material failure of the
Documentation to accurately describe a program function
contained in any applicable Deliverables; Documentation that
does not meet the Specifications for any applicable
Deliverables; or Documentation that does not enable a
reasonably competent developer to use the Code for further
development purposes, as described in the Deliverables.
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(3) "Other Error" means any material non-conformance of the
Deliverable with all or any part of the Specifications for the
Deliverable, other than Code Error or Documentation Error.
2.7 "Field" means transmission products for any portion of the
telecommunications network comprised of copper telephone wire between
and including the carrier's facility and the termination of that wire
at the access point at the user premises, including in-building copper
telephone wire cable riser applications in multi-tenant units (MTUs)
and multi-dwelling buildings (MDUs). Other in-building applications are
not included in the Field.
2.8 "HelloSoft" means HelloSoft, Inc., a California corporation having its
place of business at 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxx, XX 00000,
or any other third party with whom NVC may contract for development
services with respect to the MWB Technology and the MWB Deliverables.
2.9 "Developer Agreement" means that certain Services Agreement between NVC
and HelloSoft dated as of March 31, 2004, as amended by Amendment No. 1
thereto dated as of the date of this Agreement, or any other agreement
with other third party for development services with respect to the MWB
Technology, the MWB Deliverables, the PowerStream Technology or the
PowerStream Deliverables.
2.10"Improvement" means an Invention or work of authorship which is a
revision, enhancement, modification, translation, abridgement,
condensation, expansion, improvement, refinement or embodiment of
PowerStream Deliverables or MWB Deliverables and is conceived and
reduced to practice, which if made, sold, copied, distributed or used
without a license from the owner(s) of such technology would constitute
an infringement of the PowerStream lP or the MWB IP.
2.11"Invention" means any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, including without
limitation the inventions claimed in the PowerStream Patents and the
MWB Patents.
2.12"IP" means (i) Patent Rights, (ii) rights of ownership in any Invention
underlying any Patent Rights, (iii) all United States and foreign
semiconductor mask work rights and registrations for such rights, (iv)
rights to trade secrets, know-how, technical information and technical
data, (v) copyrights and other literary property and author's and moral
rights, whether or not copyrightable, and (vi) all Improvements to any
of the foregoing. "IP" does not include any rights in any trademarks,
trade names, service marks or logos, or the goodwill associated
therewith; provided, however, that NVC may use ANI's xxxx
"PowerStream", in a manner approved in advance in writing by ANI, to
indicate that NVC's products include the PowerStream technology.
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2.13"Licensee" is defined in Section 5.2.2(ii).
2.14"License Revenues" means consideration received by NVC from third
parties pursuant to a direct or indirect license under the MWB IP
and/or PowerStream IP from NVC.
2.15"Maintenance Period" means the period commencing upon the first
commercial shipment by NVC (including for these purposes any other
party acting pursuant to authority granted by NVC) of a product
practicing the MWB IP or the PowerStream IP and ending twelve (12)
months thereafter.
2.16"MWB Deliverables" means any and all hardware, firmware, software,
object code, source code, programs, Documentation, information, notes,
and materials, in whatever form, set forth in Schedule A.
2.17"MWB IP" means all IP embodied in the MWB Deliverables on the Effective
Date, including without limitation the Patent Rights represented by the
MWB Patents, and all IP embodied in Improvements to the MWB
Deliverables, other than PowerStream IP.
2.18"MWB Patents" means the patent application specified as such on Exhibit
D, any patent applications filed at any time to the extent that the
claims of such patent applications read on Inventions comprising MWB IP
conceived and reduced to practice prior to the end of the Maintenance
Period, and any and all divisions, continuations,
continuations-in-part, renewals and substitutes thereof or therefor,
and patents issued pursuant thereto.
2.19"MWB Technology" means that multiple wideband, high speed
communications technology jointly developed by ANI and NVC, as further
described in the document entitled "High-Data-Rate Long Distance
Communications for Noisy and Attenuated Media such as VDSL," rev. 1.00,
dated September 10, 2001, and which has been further developed pursuant
to the Prior Agreement and will be further developed pursuant to the
Developer Agreement.
2.20"Net Sales Revenue" means, in the case of sales by NVC, the money
(which does not include sales, tariff, duties and/or use taxes directly
imposed or outbound transportation costs charged to customers) received
by NVC for Products sold by NVC to third parties in bona fide arm's
length transactions, less only amounts allowed or credited on returns,
commissions paid to independent sales agencies and for cost of
collections. If a Product is distributed or invoiced to an affiliated
entity or otherwise for a discounted price substantially lower than
customary in the trade, Net Sales Revenue shall be based on the
customary amount billed by NVC for Products to unaffiliated third
parties.
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2.21"Patent Rights" means all rights arising from or related to any and all
patent applications, patents, and any and all divisions, continuations,
continuations-in-part, renewals and substitutes thereof or therefor, in
or under all patent classes or types, and any equivalent rights in all
countries of the world.
2.22"PowerStream Deliverables" means any and all hardware, firmware,
software, object code, source code, programs, Documentation,
information, notes, and materials, in whatever form, set forth in
Exhibit B.
2.23"PowerStream IP" means all IP embodied in the PowerStream Deliverables
on the Effective Date, including without limitation the Patent Rights
represented by the PowerStream Patents, and all IP embodied in
Improvements to the PowerStream Deliverables made during the term of
this Agreement, other than Improvements that relate only to the MWB
Deliverables.
2.24"PowerStream Patents" means the patents and patent applications
specified as such on Exhibit C, any patent applications filed by ANI at
any time to the extent that such claims read on inventions comprising
PowerStream Technology conceived and reduced to practice prior to the
end of the Maintenance Period, any and all divisions, continuations,
continuations-in-part, renewals and substitutes thereof or therefor,
and patents issued pursuant thereto.
2.25"PowerStream Technology" means ANI's high speed powerline technology,
which includes a synchronizer, a digital equalizer, a
modulator/demodulator, a forward error correction encoder/decoder, an
error detection encoder/decoder, physical layer management,
segmentation and reassembly, link protocol, quality of service, and
applicable interfaces.
2.26"Prior Agreement" means that certain Development and License Agreement
dated as of April [12], 2002.
2.27"Products" means products that are designed for use only in the Field
implementing PowerStream IP and/or MWB IP.
2.28"Specifications" means the specifications for the MWB Deliverables as
set forth in the documents entitled "Project Plan for Design and
Verification of a Multiple Wide Band (MWB) Communications System
Prototype, Nov 19, 2001 Revision 0.3" and "High-Data-Rate Long-Distance
Communications for Noisy and Attenuated Media such as VDSL, Rev 1.00,
September 10, 2001", as the same may have been completed, amended
and/or supplemented pursuant to the Prior Agreement.
3. PowerStream License
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3.1 Grant of License. In consideration of NVC's payment of the license fee
specified in Section 5.1(i) and (ii) of the Prior Agreement, the
receipt and sufficiency of which ANI hereby acknowledges and confirms,
ANI hereby grants to NVC a worldwide, exclusive (but only in the Field
and subject to 3.2 below), perpetual, nontransferable (except as
provided in Section 16.2) license under the PowerStream IP:
(i) to make, use, create, develop, sell, offer to sell, rent, lease, distribute,
market, commercialize, export and/or import Products anywhere in or throughout
the world;
(ii) to have Products made, used, created, developed, sold, offered for sale,
rented, leased, distributed, marketed, commercialized, exported and/or imported
anywhere in or throughout the world, provided that NVC may not have Products
made, created or developed by a Competitor of ANI without ANI's prior written
consent; and
(iii) to grant sublicenses (which may authorize further sublicensing through one
or more layers of sublicensees) to third parties to do the things permitted in
clauses (i) and (ii), provided that NVC may not grant such sublicenses to a
Competitor of ANI without ANI' prior written consent.
Notwithstanding the foregoing, NVC shall have no rights under clauses
(i) and (ii) outside of the Field and shall not make, have made for it,
use, sell, offer to sell, export or import Products that are designed
to permit general commercial use outside the Field without substantial
modification.
3.2 Exclusivity. ANI shall not, during the term of this Agreement, directly
or indirectly, without the prior written consent of NVC:
(i) make, use, develop, sell, offer to sell, rent, lease, distribute, market,
commercialize, export and/or import any Products, or have any Products made,
used, sold, developed, offered for sale, rented, leased, distributed, marketed,
commercialized, exported and/or imported for it, that are designed to permit
general commercial use within the Field without substantial modification, nor
(ii) agree with or grant licenses to third parties to do so.
Notwithstanding the foregoing, ANI may engage in research and
development in the Field without restriction on its own behalf, but may
not perform research and development in the Field for third parties.
NVC acknowledges that ANI has previously granted non-exclusive licenses
under the PowerStream IP in the Field to two parties with worldwide
businesses headquartered in the United States, and the exclusivity
given to NVC by this Section is subject to those licenses.
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3.3 Reservation of Rights. ANI retains all rights in respect of the
PowerStream IP outside the Field, directly or indirectly, through the
grant of licenses to third parties or otherwise.
3.4 Assignment and Delivery of PowerStream Improvements. NVC hereby
assigns and agrees to assign to ANI all right, title and interest in
and to all Improvements (including without limitation all IP embodied
therein) under the PowerStream IP or the PowerStream Technology made
by NVC or on its behalf by any other party during the term of this
Agreement that do not meet the definition of MWB Technology or MWB IP;
such Improvements shall be included within the license granted in
Section 3.1, and shall accordingly be subject to Section 3.2. NVC
shall disclose all such Improvements to ANI as and when made and shall
deliver to ANI all such Improvements, or copies thereof, together with
all Code, Documentation and other information relating thereto, as and
when the same are created.
4. Delivery and Acceptance of Deliverables.
Simultaneously with the execution of this Agreement, ANI has delivered
the Deliverables to NVC, AS IS and without regard to whether the
Deliverables are in accordance with the Specifications and the
Development Schedule under the Prior Agreement or contain Errors. NVC
hereby unconditionally and irrevocably accepts the Deliverables, AS IS
and without regard to whether the Deliverables are in accordance with
the Specifications and the Development Schedule under the Prior
Agreement or contain Errors. NVC acknowledges and agrees that ANI
shall have no further development obligations to NVC with respect to
the Deliverables or otherwise.
5. MWB IP
5.1 Co-Ownership of MWB IP. The Parties' shall be joint owners of all
right, title and interest of either party in the MWB IP and any
Improvements thereon developed prior to the end of the Maintenance
Period, including without limitation any rights acquired by NVC
pursuant to Section 4(c) of the current Developer Agreement. NVC shall
disclose all such Improvements to ANI as and when made and shall
deliver to ANI all such Improvements, or copies thereof, together with
all Code, Documentation and other information relating thereto, as and
when the same are created. NVC will not modify the current Developer
Agreement or enter into any subsequent Developer Agreement without
ANI's prior written approval, which shall not be unreasonably
withheld, and shall allow a reasonable period for review by ANI and
its attorneys. Accordingly, to the extent necessary to effect such
joint ownership, each Party hereby assigns and agrees to assign to the
other Party a one-half undivided interest in any MWB IP and any
Improvements thereon developed prior to the end of the Maintenance
Period, without royalty or other consideration, except as expressly
provided herein. Each Party agrees to execute any documents, provide
any affidavit, testimony, statement and information, and render any
assistance necessary to register (including, but not limited to, any
patent, copyright or other registry), prove or evidence the other
Party's co-ownership rights set forth in this section, or to otherwise
carry out the intent of this section. Without limiting the generality
of the foregoing, ANI agrees to take such steps as are necessary to
register NVC as a co-owner of the MWB Patents.
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5.2 Restrictions on Ownership Rights.
5.2.1 Restrictions on NVC's Ownership Rights. During the term of this
Agreement, NVC shall not, directly or indirectly:
(i) make, have made, use, sell, offer to sell, rent,
lease, distribute, market, commercialize, export or
import Products that are designed to permit general
commercial use outside the Field without substantial
modification, nor allow any of its Licensees (as
hereinafter defined) to do the same, without the
prior written consent of ANI (which may be withheld
or made subject to conditions in ANl's sole
discretion); or
(ii) grant licenses under the MWB IP or the PowerStream IP
to, or have Products made by, a Competitor of ANI
without ANI's prior written consent.
5.2.2 General Provisions Regarding Restrictions.
(i) Each Party expressly agrees that the restrictions to
which it is subject are reasonable in scope and are
to be enforced to the full extent of their reasonable
meanings, and that this Agreement, including any
ambiguities in the expression of the restrictions,
shall be interpreted to maximize the scope and
enforcement of the restrictions.
(ii) Each Party shall impose the restrictions to which it
is subject by legally enforceable written agreement
on all third parties that acquire Products or rights
under the MWB IP directly or indirectly from such
Party, including any successor, acquiror, assignee or
transferee ("Licensees"). Any agreement granting or
transferring rights under the MWB IP which fails to
do so shall be void and of no effect.
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(iii) Each Party shall be responsible for the compliance or
noncompliance of its Licensees with the restrictions
to which it is subject.
(iv) If NVC intentionally and materially violates the
restrictions set forth in Section 5.2.1 and fails to
cease such violations within thirty (30) days after
receiving written notice thereof from ANI, then, in
addition to any other remedies to which ANI may be
entitled, Section 3.2 shall thereafter no longer
apply.
5.3 Benefits from Exercise of Ownership Rights. Except as specifically
provided herein, a Party shall not be liable to the other Party in any
way for damages, revenues, profits, accounting, income, royalties or
any other benefits, monetary or other, derived by such Party from or in
connection with exercising its ownership right, title or interest in or
to the MWB IP in accordance with the provisions of Sections 5.1 and 5.2
of this Agreement. Each Party shall be solely responsible for any
taxes, liabilities, damages, duties, fines, penalties, fees, charges or
other burdens arising from or in connection with such Party's exercise
of its ownership right, title or interest in or to the MWB IP.
6. License Fee, Development Fee and Royalties.
6.1 License and Development Fees. ANI acknowledges that NVC has paid in
full the license and development fees required to be paid under the
Prior Agreement and that NVC is not required to pay any additional
license or development fees hereunder.
6.2 Royalties.
6.2.1 Royalties. NVC shall pay ANI the following royalties:
(i) *** of the Net Sales Revenue of all Products sold by NVC; and
(ii) *** of License Revenues received by NVC, provided that, for any period
or periods in which NVC's aggregate License Revenues are less than or
equal to *** of the aggregate revenue base upon which they are
calculated, ANI agrees to renegotiate in good faith the royalty for
License Revenues with NVC with a view to reaching mutual agreement on
a royalty for License Revenues that is economically viable for NVC.
(collectively "Royalties")
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*** Confidential material redacted and filed separately with the Commission.
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a. Reports and Payments. NVC shall provide to ANI within sixty (60)
days after the end of each calendar quarter a report setting forth the
calculation of the Royalties due in respect of such quarter,
accompanied by payment of such Royalties. If no Royalties are owing the
report shall so state. All payments shall be made by check or wire
transfer in US Dollars to such address or bank account as may be
designated by ANI from time to time.
b. Records and Audits. NVC shall keep complete and accurate books and
records of all sales of Products and licenses by NVC, which may be
inspected by ANI or its representatives from time to time upon
reasonable notice. If any such inspection discloses underpayments of
royalties for any period audited, NVC shall pay such amount promptly
with interest at a rate of 1.5% per month (or, if less, the highest
amount permitted by law); provided that if the amount due exceeds 5% of
the amount paid for such period, in addition NVC shall reimburse ANI
for the reasonable cost of the inspection.
c. Credit Against Royalties. The first $5,000,000 of Royalties
otherwise payable by NVC shall be offset by a credit in the same
amount.
6.2.2 Late Payments. Royalties not paid when due shall be subject to
interest at the rate of one-and-one-half percent (1-1/2%) per
month or, if less, the maximum rate of interest allowable under
law. If any Royalties are not paid when due hereunder, ANI shall
be entitled to recover its costs and expenses (including without
limitation reasonable and necessary collection fees and attorney
fees) incurred in connection with collecting such Royalties.
6.2.3 Prior Agreement Obligations. Both Parties acknowledge that
neither Party has any obligation or liability to the other Party
in connection with the Prior Agreement except to the extent that
such obligation or liability is restated in this Agreement.
7. MWB IP Program
7.1 Prosecution. From and after the Effective Date, ANI shall
diligently and promptly file all applications in respect of all
MWB IP on behalf of both ANI and NVC as co-owners of an equal
share of all MWB IP, and shall diligently and competently
conduct any prosecution and maintenance of all MWB IP (the "MWB
IP Program"). ANI will keep NVC fully informed of the status of
the MWB IP Program and promptly provide NVC with all copies and
documents related to the MWB IP Program. NVC shall cooperate
with ANI's filing, prosecution and maintenance under the MWB IP
Program in all respects reasonably requested by ANI, and hereby
appoints ANI as its attorney-in-fact to take any actions or
execute any documents necessary for reasonably conducting such
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filing, prosecution and maintenance under the MWB IP Program in
the event that NVC fails to do so. If ANI fails to diligently
and competently conduct the prosecution and maintenance of a
filed application or issued patent, then NVC may do so, at its
own expense. If NVC requests that ANI seek patent protection for
the MWB IP in one or more countries where AN! is not seeking
such protection, and if ANI refuses or fails to diligently and
promptly do so, then NVC may do so, at its own expense. To the
extent necessary, ANI shall cooperate with NVC's filing,
prosecution and maintenance of any such applications and patents
in all respects reasonably requested by NVC, and hereby appoints
NVC as its attorney-in-fact to take any actions or execute any
documents necessary for reasonably conducting such filing,
prosecution and maintenance in the event that ANI fails to do
so.
7.2 Costs of the MWB IP Program. Except with respect to an
application pursued solely by NVC, all reasonable costs of the
MWB IP Program shall be shared equally by both Parties, and NVC
shall remit its share of such costs to ANI promptly upon written
demand therefor, accompanied by supporting documentation setting
forth in reasonable detail the costs, including without
limitation filing fees and invoices for services rendered by
third parties.
8. Third Party Infringement of IP Rights
8.1 Prosecution. If at any time either Party obtains information
that there is occurring substantial infringement by any
unlicensed party of the PowerStream IP or the MWB IP, such Party
shall promptly give written notice thereof to the other Party.
8.1.1 Infringement Outside Field. In the case of infringement of the
MWB IP outside of the Field, ANI shall determine in its sole
discretion whether and, if so, how to take action against such
infringement. If ANI for any reason does not bring suit against
or enter into negotiation for a settlement with any alleged
infringer of the MWB IP within a reasonable time after receiving
notice of the alleged infringement (it being agreed that ANI's
failure to so act for a period in excess of 90 days shall be
deemed to be unreasonable), then NVC may seek to prevent such
infringement by any means that NVC, in its sole discretion, may
deem to be necessary. Any recovery obtained by NVC or ANI, as
the case may be, as the result of its proceeding against
infringement of the MWB IP by court action, settlement or
otherwise shall be paid over to, or retained by, ANI after
deducting from such recovery the reasonable expenses (including
attorneys' fees) incurred in connection with the protection and
enforcement of such IP.
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8.1.2 Infringement in Field. In the case of infringement of the MWB IP
in the Field, NVC shall determine in its sole discretion whether
and, if so, how to take action against such infringement. If NVC
for any reason does not bring suit against or enter into
negotiation for a settlement with any alleged infringer of the
MWB IP within a reasonable time after receiving notice of the
alleged infringement (it being agreed that NVC's failure to so
act for a period in excess of 90 days shall be deemed to be
unreasonable), then ANI may seek to prevent such infringement by
any means that ANI, in its sole discretion, may deem to be
necessary. Any recovery obtained by ANI or NVC, as the case may
be, as the result of its proceeding against infringement of the
MWB IP by court action, settlement or otherwise shall be paid
over to, or retained by, NVC after deducting from such recovery
the reasonable expenses (including attorneys' fees) incurred in
connection with the protection and enforcement of such lP, and
shall be treated for royalty purposes as License Revenues.
8.2 Cooperation. In connection with any action taken by either Party
hereto to protect or enforce the PowerStream IP or the MWB IP or
to prevent infringement thereof, the other Party shall, if
requested, make available to the Party undertaking such action,
at the expense of such Party, any and all relevant information,
data, documents, consultants, expert witnesses, and any other
materials or assistance of any kind whatsoever. In addition, as
required by law or applicable local procedural rules, either
Party shall join as party plaintiff in any suit filed by the
other Party, and hereby appoints the other Party as its
attorney-in-fact to enter its appearance as a party plaintiff
and execute any necessary documents in the event that the
joining Party fails to do so. The Party undertaking any such
action shall reimburse the other Party for all costs and
expenses the other Party reasonably incurs in connection with
its involvement in such action. Neither Party may enter into a
settlement of a claim of infringement of or by the MWB IP
without the prior written consent of the other Party, which
consent shall not be unreasonably withheld or delayed.
9. Representations and Warranties; Disclaimer of Certain
Warranties
9.1 Representations and Warranties. ANI represents and warrants to
NVC as follows:
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(i) ANI is the sole owner of all right, title, and interest in and
to the PowerStream IP, or by license has the full power and
authority to enter into this Agreement and to grant the rights
provided herein,
(ii) the execution, delivery and performance of this Agreement has
been authorized by all required action on the part of ANI, and
does not violate any agreement to which ANI is a party or to
which its properties or assets are subject;
(iii) this Agreement is valid, legally binding and enforceable on ANI
in accordance with its terms, except as enforceability may be
limited by general equitable principles and laws affecting
creditors' rights generally;
(iv) the PowerStream IP constitutes all of the IP rights that relate
to the PowerStream Technology; (ii) ANI is not aware of any
infringement or claim of infringement of the PowerStream IP or
the MWB IP; (iii) ANI is not aware of any IP rights of any other
party that would be infringed or misappropriated by the license
granted to NVC in this Agreement, the MWB Technology or the
making, using, selling, offering for sale, importing or
exporting of Products in the Field; and (iv) no interference or
opposition proceeding is pending or threatened relating to the
PowerStream Patents or the MWB Patents; and
9.2 Disclaimer of Other Warranties. ANI MAKES NO OTHER WARRANTIES IN
CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION,
ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AS TO THE POWERSTREAM IP, THE MWB IP,
OR ANY PRODUCT. ANI MAKES NO WARRANTY OR REPRESENTATION AS TO
THE VALIDITY OR SCOPE OF ANY PATENT, THAT ANY PRODUCT WILL BE
FREE FROM INFRINGEMENT OF PATENT OR OTHER INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES, OR THAT NO THIRD PARTIES ARE INFRINGING
ANY OF THE IP COVERED BY THIS AGREEMENT.
10. Indemnification
10.1 Indemnification by NVC for Infringement Claims. NVC shall (i)
defend, and/or at its option settle, any Proceeding by a third
party against ANI based on a claim that Products as sold by NVC
infringe any IP rights of a third party, to the extent that such
claim or suit arises out of further Improvements to the
Deliverables, the MWB Technology or the PowerStream Technology
after the Effective Date by NVC or its Licensees, or the
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combination, operation or use of the PowerStream Technology or
the MWB Technology with equipment, devices or software not
supplied by ANI, if such claim would not have arisen but for
such combination, operation or use, unless ANI authorized or
agreed to such combination, operation or use; and (ii) pay any
direct damages finally awarded in such Proceeding, including any
amount agreed to by NVC in a settlement, provided that (a) NVC
is allowed sole control of the defense and settlement
negotiations (although ANI may, at its option, be advised by
separate counsel at its own expense); (b) ANI notifies NVC
promptly in writing of such Proceeding (provided that the delay
in furnishing notice or failure to give notice shall only
relieve NVC of its indemnification obligations hereunder if and
to the extent that such delay or failure materially prejudices
NVC) and gives NVC all information reasonably known to ANI or in
its possession or control relating thereto and reasonably
necessary for such defense or settlement, and (C) ANI cooperates
in all respects reasonably requested by NVC in the settlement
and/or defense, at NVC's cost and expense. THE FOREGOING STATES
ANI'S SOLE AND EXCLUSIVE REMEDY AND NVC'S ENTIRE OBLIGATION WITH
RESPECT TO CLAIMS OF INFRINGEMENT OF ANY KIND.
10.2 Indemnification for Other Claims.
(a) In General. Subject to the limitations set forth in Section
10.2(b), ANI will indemnify and hold harmless NVC, and NVC will
indemnify and hold harmless ANI, from and against any and all
losses, costs, damages, liabilities and expenses (including,
without limitation, reasonable legal fees if the Indemnifying
Person, as hereinafter defined does not elect to defend, as
hereinafter provided), net of any recoveries under insurance
policies or tax savings benefiting the person entitled to
indemnification hereunder (an "Indemnified Person"), arising out
of any Proceeding by a third party based upon a
misrepresentation or breach of or default in connection with any
of the representations, warranties and covenants given or made
by the other Party (the "Indemnifying Person") in this Agreement
(hereafter in this Section 10.2 referred to as "Damages").The
Parties agree that the provisions of this Section 10.2 will not
apply to indemnification claims for infringement covered by
Sections 10.1, nor to breach of contract claims of one Party
against the other.
(b) Indemnification Limitations. The indemnification provided for in
Section 10.2(a) will not apply unless and until the aggregate
Damages for which an Indemnified Person seeks indemnification
under Section 10.2(a) exceeds $50,000, in which event the
indemnification provided for in Section 10.2(a) will include all
Damages in excess of such sum.
(c) Indemnification Procedure. Promptly after the receipt by any
Indemnified Person of notice or discovery of any claim or
Proceeding giving rise to indemnification rights under this
Section 10.2, such Indemnified Person will give the Indemnifying
14
Person written notice of such claim or Proceeding (for purposes
of this Section 10.2, a "Claim"). Within ten days of delivery of
such written notice, the Indemnifying Person may, at its
expense, elect to take all necessary steps properly to contest
any Claim or to defend such Claim to conclusion or settlement.
If the Indemnifying Person makes the foregoing election, then
the Indemnifying Person will take all necessary steps to contest
any such Claim or to defend such Claim to conclusion or
settlement, and will notify the Indemnified Person of the
progress of any such Claim, will permit the Indemnified Person,
at such person's expense, to participate in such defense
(provided, however, that if a conflict of interest exists which
would make it inappropriate, in the reasonable opinion of such
Indemnified Person, for the same counsel to represent both the
Indemnified Person and the Indemnifying Person in the resolution
of such Claim, then the Indemnified Person may retain separate
counsel at its expense), and will provide the Indemnified Person
with reasonable access to all relevant information and documents
relating to the Claim and the Indemnifying Person's prosecution
or defense thereof. If the Indemnifying Person does not make
such election, then the Indemnified Person shall be free to
handle the defense of any such Claim, will take all necessary
steps to contest any such Claim or to defend such Claim to
conclusion or settlement, will notify the Indemnifying Person of
the progress of any such Claim, and will permit the Indemnifying
Person, at the expense of the Indemnifying Person, to
participate in such defense and will provide the Indemnifying
Person with reasonable access to all relevant information and
documents relating to the Claim and such Indemnified Person's
defense thereof. In either case, the party not in control of a
Claim will fully cooperate with, and will cause its counsel, if
any, to fully cooperate with, the other party in the conduct of
the defense of such Claim. Neither party will compromise or
settle any such Claim without the written consent of either such
Indemnified Person (if the Indemnifying Person defends the
Claim) or the Indemnifying Person (if such Indemnified Person
defends the Claim), such consent not to be unreasonably
withheld.
(d) Notice of Claim. Any written notice of a Claim required under
this Section 10.2 will be in writing and will contain the
following information to the extent reasonably available to the
Indemnified Person:
(i) the Indemnified Person's good faith estimate of the reasonably
foreseeable maximum amount of the alleged Damages (which amount
may be the amount of damages claimed by a third-party plaintiff
in an action brought against such Indemnified Person); and
(ii) a brief description in reasonable detail of the facts,
circumstances or events giving rise to the alleged Damages based
on such Indemnified Person's good faith belief thereof and the
basis under this Agreement for such Claim, including, without
limitation, the identity and address of any third-party claimant
(to the extent reasonably available to such Indemnified Person)
and copies of any formal demand or complaint.
15
11. Confidentiality and Publicity
11.1 Confidential Information. Each Party acknowledges that the other
has provided, and will continue to provide during the term of
this Agreement, access to certain confidential information,
including but not limited to specifications, designs, plans,
drawings, schematics, data prototypes and other technical and
business information (hereinafter collectively referred to as
"Confidential Information"), which is of substantial value, and
that the other's business will be impaired if such Confidential
Information is improperly disclosed or used. The terms of this
Agreement shall be Confidential Information of each Party and
shall be subject, on behalf of each of them, to the restrictions
on disclosure described in this Article 11.
11.2 Designation. The MWB Deliverables and the PowerStream
Deliverables are Confidential Information of ANI. No other
information of either Party disclosed hereunder shall be
considered Confidential Information unless it is so designated
in a reasonably clear manner. This provision shall be satisfied:
(i) as to documentary disclosure, by marking "ANI Confidential",
"ANI Proprietary" or the like, or "NVC Confidential", "NVC
Proprietary" or the like on documents or other media containing
Confidential Information; (ii) as to oral disclosures, by
notifying the other Party in writing within thirty (30) days of
each such oral disclosure that it contained Confidential
Information and identifying specifically the information
asserted to be confidential.
11.3 Restrictions. Except as expressly permitted by this Agreement,
neither party shall disclose Confidential Information of the
other party to any third party for any purpose. Each party shall
use, and require its employees and contractors (including
without limitation HelloSoft) to use, the Confidential
Information of the other solely and exclusively in connection
with the purpose stated in Section 1 of this Agreement and shall
permit access to the Confidential Information only to those of
the receiving party's employees or contractors who need to know
the same in the performance of their duties in connection with
this Agreement and who are legally obligated to comply with this
Agreement by written agreement or otherwise.
11.4 Exceptions. The foregoing restrictions shall not be applicable
with respect to information that: (a) was previously known to
the receiving party free of any confidentiality obligation, as
can be demonstrated by the contemporaneous records of that
party, (b) was independently developed by the receiving party
without use of the Confidential Information received hereunder
as demonstrated by tangible evidence, (c) is or becomes publicly
available other than by unauthorized disclosure hereunder, (d)
is disclosed to third parties by the disclosing party without
restriction, or (e) is received by the receiving party from a
third party without restriction and without violation of any
confidentiality obligation.
16
11.5 Permitted Disclosures. Disclosure of Confidential Information
shall not be a breach of this Agreement: (a) if such disclosure
is compelled by the order of a court or governmental or
regulatory agency, provided that the party making the disclosure
shall have promptly advised the other party and made a
reasonable effort to obtain a protective order requiring that
the Confidential Information so disclosed be placed under seal
or similar procedure to maintain the confidentiality of such
Confidential Information and used only for the purpose for which
the order was issued, (b) to the extent necessary to
governmental officials in obtaining governmental approvals, if
any, required in connection with the manufacture, use or sale of
any Product, (c) to the extent that publication or disclosure of
technical information is necessary to continue, renew or obtain
additional Patents, or (d) with respect to this Agreement, to
the extent reasonably deemed necessary by NVC as a result of its
disclosure obligations under the federal securities laws.
11.6 Publicity. Neither Party shall issue a press release or other
publicity that uses the name of the other Party or its
trademarks, service marks, trade names, product names or brands,
or otherwise reveals the identity of the other Party, without
the other Party's prior approval, which shall not be
unreasonably withheld or delayed. ANI acknowledges that NVC will
file this Agreement with the United States Securities and
Exchange Commission, and NVC agrees to redact any information
from the filed document that ANI reasonably identifies as
confidential.
12. Maintenance; Support and Updates
12.1 For twelve months following the Effective Date, at NVC's option
ANI shall provide up to three person-days per month of support
to NVC in its use and implementation of the PowerStream IP,
PowerStream Technology and MWB Technology, at a rate of
$1,250/person/day, plus reasonable expenses for ANI employees
traveling to NVC. NVC may request support exceeding in the
aggregate three days per month, and in such event NVC will
forecast and commit to purchase a specified level of support so
that ANI can plan and, if necessary, procure, sufficient support
resources. ANI may accept or decline such request in its sole
discretion.
13. Limitation of Liability
17
13.1 EXCEPT WITH RESPECT TO A BREACH OF THE TERMS OF SECTION 9 IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT
NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF
DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN
ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH
DAMAGES.
13.2 THE LIMITATIONS STATED IN SECTION 13.1 ABOVE SHALL APPLY WHETHER
THE ASSERTED LIABILITY OR DAMAGES IS BASED ON CONTRACT
(INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY), TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR
EQUITABLE GROUNDS. EACH OF THE LIMITATIONS OF LIABILITY IS
INTENDED TO BE ENFORCEABLE REGARDLESS OF WHETHER ANY OTHER
EXCLUSIVE OR NONEXCLUSIVE REMEDY UNDER THIS AGREEMENT FAILS OF
ITS ESSENTIAL PURPOSE.
14. Term and Termination
14.1 Term. This term of this Agreement begins on the Effective Date
and shall continue until the expiration of the last expiring
PowerStream Patent or MWB Patent.
14.2 Termination of Development Obligations. Notwithstanding Section
14.1, the provisions of Article 12 may be terminated by a Party
in any of the following events:
a. Either Party may terminate if the other Party breaches a
material obligation under this Agreement and such breach
continues uncured for a period of thirty (30) days after written
notice thereof or, if such breach is curable but cannot be cured
within said thirty (30) days after written notice thereof, when
the defaulting party has not within said thirty (30) days
initiated reasonable action to attempt to cure it.
Notwithstanding the foregoing, in the event that one party
breaches a material obligation under this Agreement, and such
breach continues uncured for a period of ninety (90) days after
written notice thereof, the non-defaulting party may immediately
terminate the above noted sections of Agreement on the
ninety-first day after notice of such breach.
18
b. Either Party may terminate upon not less than twenty (20) days'
written notice to the other Party if (i) a petition in
bankruptcy is filed by or against the other Party, or a receiver
or trustee of the property of the other Party is appointed, and
such petition or appointment shall remain undismissed for a
period of sixty (60) days, (ii) the other Party files a petition
for reorganization under any bankruptcy, insolvency,
reorganization, or other similar law, or makes an assignment for
the benefit of creditors, (iii) the other Party is adjudged
bankrupt or insolvent by any court of competent jurisdiction, or
(iv) the other Party initiates any liquidation or termination of
business or ceases doing business in the normal course.
14.3 Effects of Termination. Upon any termination of this Agreement
pursuant to Section 14.2, NVC will pay ANI any sums then due
pursuant to this Agreement, and each Party will return to the
other Party or, where the return of such material is
commercially impractical, destroy all of the other's
Confidential Information. All other provisions of this Agreement
shall remain in full force and effect. Neither termination nor
expiration of this Agreement shall relieve any Party from the
duty to discharge all of such Party's obligations accrued or due
prior to the date thereof, nor shall the exercise of the right
to terminate by either Party constitute a waiver of any other
remedies the terminating Party may have in law or equity.
14.4 Survival. The Parties specifically agree that the license
granted under Article 3 and the co-ownership provisions under
Sections 5.1, 5.2 and 5.3 hereof will survive any termination
pursuant to Section 14.2, any petition in bankruptcy,
appointment of a receiver or trustee, reorganization,
insolvency, liquidation or ceasing to do business of ANI or any
successor, assignee or transferee of ANI. NVC does not waive,
and nothing in this Agreement or the performance of this
Agreement shall be construed or interpreted to constitute a
waiver of, NVC's rights under 11 U.S.C. ss.365(n) or any
equivalent or similar provisions under any other law, statute,
regulation or order.
15. Notices.
All notices or other communications required to be given
hereunder shall be deemed sufficient if in writing and (a)
personally delivered, (b) transmitted by prepaid express
courier, (c) transmitted by facsimile (and confirmed by
certified mail return receipt requested) or (d) provided by
e-mail, with a confirmation of receipt, to the respective
address of the parties set forth below:
19
To ANI: Adaptive Networks, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Phone: (000) 000-0000, ext. 24
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx
To NVC: New Visual Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxx.xxx
or at such other address as either party shall have designed by written
notice to the other.
16. Miscellaneous
16.1 Modifications. No modifications or amendments to this Agreement
shall be valid unless in writing and signed by and on behalf of
both Parties.
16.2 Assignment. This Agreement shall be binding upon ANI's or NVC's
successors or permitted assigns. Either Party (the "Seller") may
assign its rights hereunder to the purchaser or surviving entity
(the "Purchaser") in any stock, assets, merger or other
transaction in which all or substantially all of the business of
such Party, or that part of the business to which the subject
matter of this Agreement relates, is transferred, regardless of
the form such transaction may take; provided that the Purchaser
assumes all of the obligations of the Seller hereunder and the
Seller hereunder remains jointly and severally liable for such
obligations. If the Purchaser, or any other party controlling,
controlled by, or under common control with the Purchaser, is a
Competitor of the other Party to this Agreement, then the
assignment permitted by the preceding sentence shall only be
permitted if such other Party gives its written consent, which
shall not be unreasonably withheld. Except as expressly
authorized in this Section, this Agreement may not be assigned,
sold, mortgaged, pledged or otherwise disposed of by either
Party in whole or part without the prior written consent of the
other Party, and any attempt to do so shall be void and without
effect.
16.3 Injunctive Relief. The covenants and agreements of the Parties
in Sections 3.1, 3.2, 5.1, 5.2 and Article 11 hereof are of a
special character, and the Parties acknowledge that money
damages alone may not compensate for any breach of such
covenants and agreements. Therefore, the Parties expressly agree
that in the event of the breach or threatened breach of any such
20
covenants or agreements, in addition to any other rights or
remedies, the parties shall be entitled to injunctive relief
(without any requirement to post bond in connection therewith)
compelling specific performance of, and other compliance with,
the terms of such sections.
16.4 Integration. This Agreement and any attachments hereto
constitute the entire agreement between the Parties hereto with
respect to the subject matter hereof. There are no agreements,
understandings, covenants, conditions or undertakings, oral or
written, express or implied, concerning such subject matter that
are not merged herein or superseded hereby.
16.5 Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement shall not
be affected thereby and shall continue in full force and effect.
16.6 Force Majeure. Neither Party to this Agreement shall be liable
for its failure to perform any of its obligations hereunder
during any period in which such performance is delayed by fire,
flood, war, embargo, riot or the intervention of any government
authority, provided that the party suffering the delay notifies
the other party of the delay, acts diligently to remedy the
cause of such delay, and promptly resumes its performance upon
the cessation of the cause for the delay. Notwithstanding the
foregoing, a party's performance shall not be excused for delays
caused by any subcontractor or agent of that party, except to
the extent that such subcontractor's or agent's performance of
its obligations to that party would be excused if this Section
16.6 were to apply to such obligation.
16.7 Relationship of Parties. The Parties are independent contractors
and are not, and shall not represent themselves as, principal
and agent, partners or joint venturers. Neither party shall
attempt to act, or represent itself as having the power, to bind
the other or create any obligation on behalf of the other.
16.8 Non-Solicitation. Unless otherwise agreed to by the Parties in
writing, for the term of this Agreement and one year thereafter,
neither Party shall recruit or solicit, offer employment to, or
hire or employ any person who (i) is an employee or independent
contractor of the other Party, or (ii) was an employee or
independent contractor of the other Party within one year prior
to any recruitment, solicitation, or employment of such person.
16.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts
without reference to its choice of law principles.
16.10 Dispute Resolution. All disputes arising under this Agreement
between the Parties shall be resolved as follows: First, the
senior management of each Party shall meet to attempt to resolve
such disputes. If the disputes cannot be resolved by senior
management, either party may make a written demand for formal
21
dispute resolution. Within 30 days after such demand, the
parties agree to meet for one day with an impartial mediator
(mutually agreed upon by the parties or, if the parties cannot
agree, selected by two mediators, one proposed by each party)
and consider dispute resolution alternatives other than
litigation. If a resolution or an alternative method of dispute
resolution is not agreed upon within 15 days after the
mediation, either party may begin litigation proceedings.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
New Visual Corporation Adaptive Networks, Inc.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
---------------------- --------------------------
Name: Xxxx Xxxxx Name: Xxxxxxx Xxxxx
Title: President & CEO Title: President
22
EXHIBIT A
MWB DELIVERABLES
Two (2) CDs containing the existing PowerStream and MWB Technology and
Documentation relating thereto.
EXHIBIT B
POWERSTREAM DELIVERABLES
Two (2) CDs containing the existing PowerStream and MWB Technology and
Documentation relating thereto.
EXHIBIT C
POWERSTREAM PATENTS
1. Power Line Communication System
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 4,815,106
------------------------------------------------------ ------------------------------------
Canada 1,280,482
------------------------------------------------------ ------------------------------------
France 0267930
------------------------------------------------------ ------------------------------------
2. Method and Apparatus for Data Encoding and
Communication Over Noisy Media
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 5,727,004
------------------------------------------------------ ------------------------------------
Canada 2,215,380 pending
------------------------------------------------------ ------------------------------------
3. Method and Apparatus for Data Encoding and
Communication Over Noisy Media
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 5,872,791
------------------------------------------------------ ------------------------------------
4. Method and Apparatus for Data Encoding and
Communication Over Noisy Media
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 5,944,842
------------------------------------------------------ ------------------------------------
5. Reconfigurable On-Demand Telephone and Data Line System
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 5,774,526
------------------------------------------------------ ------------------------------------
Australia 706,579
------------------------------------------------------ ------------------------------------
Canada 2,227,267 pending
------------------------------------------------------ ------------------------------------
China 96195951.X
------------------------------------------------------ ------------------------------------
European Patent Application 9692799.6 pending
------------------------------------------------------ ------------------------------------
Israel 122,965
------------------------------------------------------ ------------------------------------
South Korea 98-700343
------------------------------------------------------ ------------------------------------
Taiwan 124,951
------------------------------------------------------ ------------------------------------
6. Wideband Communication System Using Delay Line Clock
Multiplier
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 20020015461 pending
------------------------------------------------------ ------------------------------------
7. Power Line Communication Network
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States 20040075535 pending
------------------------------------------------------ ------------------------------------
European Patent Application 01927151.9 pending
------------------------------------------------------ ------------------------------------
8. Digital Equalization Process and Mechanism
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States PCT/US02/25138 pending
------------------------------------------------------ ------------------------------------
European Patent Application 02750450.5 pending
------------------------------------------------------ ------------------------------------
9. Error Correction Process and Mechanism
------------------------------------------------------ ------------------------------------
COUNTRY PATENT #
------------------------------------------------------ ------------------------------------
United States PCT/US02/25139 pending
------------------------------------------------------ ------------------------------------
European Patent Application 02750451.3 pending
------------------------------------------------------ ------------------------------------
EXHIBIT D
MWB PATENTS
1. Communicating Data Using Wideband Communications
---------------------------------------------------------------------------------------
COUNTRY PATENT#
---------------------------------------------------------------------------------------
United States PCT/USO2/27567 pending
---------------------------------------------------------------------------------------
Australia pending
---------------------------------------------------------------------------------------
European Patent Application 02766172.7 pending
---------------------------------------------------------------------------------------
India pending
---------------------------------------------------------------------------------------
Japan 2003-526054 pending
---------------------------------------------------------------------------------------
Singapore 200401116-9 pending
---------------------------------------------------------------------------------------
South Korea 00-0000-0000000 pending
---------------------------------------------------------------------------------------
South Africa 2004/2014 pending
---------------------------------------------------------------------------------------
2. Communicating Data Using Wideband Communications
---------------------------------------------------------------------------------------
COUNTRY PATENT#
---------------------------------------------------------------------------------------
United States PCT/USO2/27568 pending
---------------------------------------------------------------------------------------
European Patent Application 02778202.8 pending
---------------------------------------------------------------------------------------
