EXHIBIT 10.28
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 and 240.24b-2
SECOND AMENDMENT TO STRATEGIC ALLIANCE AGREEMENT
This Second Amendment to Strategic Alliance Agreement is made effective as
of November 28, 2001, between X H Partners, a California limited partnership
("Developer"); Square-X Xxxxxx, Inc., a Delaware corporation ("Square-H"); and
SureBeam Corporation, a Delaware corporation ("SureBeam").
RECITALS
WHEREAS, effective as of November 29, 2000, Square-H and SureBeam entered
into a Strategic Alliance Agreement (the "Original Agreement") pursuant to which
a developer and SureBeam would develop, and SureBeam would operate, a food
irradiation facility in Vernon, California;
WHEREAS, effective as of March 28, 2001, Square-H, SureBeam and Developer
entered into an Amendment to Strategic Alliance Agreement (the "Amendment" and,
together with the Original Agreement, the "Agreement") in which they
memorialized the terms and conditions pursuant to which the Facility will be
constructed and leased;
WHEREAS, Developer and SureBeam have now entered into the Lease
contemplated under the Agreement and by its terms, such Lease supersedes the
provisions of the Agreement pertaining to the construction and leasing of the
Facility and SureBeam's use and occupancy thereof;
WHEREAS, SureBeam does not want to be limited in its use of the Facilities
to the electronic pasteurization of food products and, in consideration of
Square-H permitting the Facility to be used for other purposes, SureBeam has
agreed to provide for an alternative method to compensate Square-H for its
alternative use of the Facility;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Developer, Square-H and SureBeam agree as follows:
AMENDMENT
1. WITHDRAWAL OF DEVELOPER. All parties hereto acknowledge that the
Standard Form Lease (Industrial; Single Tenant; Net) between Developer and
SureBeam supersedes all of the provisions of the Agreement with respect to the
construction and leasing of the Facility. Accordingly, Developer and SureBeam
agree that from, and after the effective date of such Lease, Developer shall no
longer be a party to the Agreement. SureBeam and Square-H agree that Developer
shall no longer be a party to the Agreement and, that henceforth, the Agreement
shall govern the strategic alliance contemplated in Article III of the original
Agreement. In other words, Article II of the Original Agreement and the
Amendment are of no further force and effect.
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2. ROYALTY; ALTERNATIVE COMPENSATION.
2.1 ELECTRONIC PASTEURIZATION. It SureBeam uses the Facility
exclusively for electronic pasteurization of food products as originally
contemplated, SureBeam shall pay to Square-K the royalty set forth in Paragraph
3.5 of the Original Agreement.
2.2 ALTERNATIVE USE. If SureBeam elects not to use the Facility
for electronic pasteurization of food products, or elects to use the Facility
in part for such pasteurization and in part for the irradiation of other
materials, SureBeam shall pay to Square-H, in addition to the royalty set
forth in Paragraph 3.5 of the Original Agreement based on the volume of all
food products processed from the Facility, a royalty of [...***...] percent
([...***...]%) of the aggregate consideration received by SureBeam in
consideration of treating such other products at the facility. Such royalty
shall be paid within thirty (30) days following the expiration of each
calendar month of the term.
ARTICLE II
MISCELLANEOUS
2.1. ENTIRE AGREEMENT. Except as specifically amended hereby, the Original
Agreement shall remain in full force and effect.
2.2 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
2.3 GUARANTIES. Titan Corporation hereby acknowledges that its guaranty,
and its obligation to execute and deliver any further guaranty, as set forth in
paragraph 10.11 of the Original Agreement, remain in full force and effect with
respect to the Agreement, as amended hereby.
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*Confidential Treatment Requested
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Strategic Alliance Agreement to be executed as of the date first-above written
SUREBEAM CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: President and CEO
THE TITAN CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: Sr. Vice President
SQUARE-X XXXXXX, INC.
By: /s/ [ILLEGIBLE]
--------------------------------------------
Title: President and CEO
X H PARTNERS, a California limited
partnership
By: Xebec Development Company, a
California corporation, its sole
general partner
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, President
Signature Page to Amendment to Strategic Alliance Agreement
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