Exhibit Index
Exhibit Description Page No.
10.49 Amendment letter of agreement dated August E-1
15, 1996 between the Company and XxXxxx
Xxxx Textron, Inc.
10.50 Letter of agreement terminating the September E-2
28, 1994, Development and License Agreement
between the Company and Lumex, Inc.
10.51 Letter of agreement with Josephberg & Xxxxx E-3
to provide the Company investment banking
services
10.52 Stock Purchase Agreement with Xxxx Xxxx E-4
Corporation
27.00 Financial Data Schedule E-5
Exhibit 10.49
Second Amendment
To
Development And License Agreement
THIS SECOND AMENDMENT made as of 15 day of August 1996 by and between BCAM
International, Inc. (formerly known as Biomechanics Corporation of America)
("BCAM") and XxXxxx Xxxx Textron Inc. ("Textron").
A. BCAM and Textron entered into that certain Development and
License Agreement dated as of March 5, 1993, as amended as of
October 27, 1993, (herein, the "Agreement") wherein BCAM
granted an exclusive license to Textron for the use of certain
patents and know-how relating to an interactive feedback
system for evaluating and controlling load bearing surfaces
such as seats;
B. In light of certain disputes which have arisen, BCAM and
Textron desire to further amend the Agreement, as hereinafter
set forth, to resolve such disputes,
Accordingly, in consideration of the premises and mutual promises and
covenants herein contained BCAM and Textron mutually agree to amend the
Agreement as follows:
2. Section 1.3 "Intelligent Seat Technology" shall be amended
to read as follows:
Section 1.3 "Intelligent Seat Technology" shall mean (i) Patents and
(ii) Know-How for an interactive feedback system that evaluates and
controls a load bearing surface to provide improved comfort.
3. Section 1.4 "Know-How" shall be amended to read in its
entirety as follows:
Section 1.4 "Know-How" shall mean all trade secrets, technical
information and data unpatented inventions, whether in documentary form
or otherwise, now possessed or hereafter developed or acquired by BCAM
related to or used in connection with products incorporating Patents;
provided, however, that Know-How shall not include any information,
inventions or data which: (i) is or becomes a part of the public domain
through no breach of this Agreement by Textron; (ii) is available from
third parties; (iii) was known to Textron at the time of disclosure
thereof by BCAM; or (iv) is independently developed by Textron without
reference to any Know-How or breach of this Agreement by Textron.
4. Section 1.6 "Patents" of the Agreement shall be amended to
include "U.S. Patent No. 5,283,735 issued February 1, 1994 (from Serial Number
07/986,094 filed December 4, 1992)".
5. Article IV, "Payments" of the Agreement shall be amended to
read in its entirety as follows:
Article IV
Royalties and Payments
4.1 BCAM acknowledges it received from Textron the sum of
Five Hundred Fifty Thousand Dollars ($550,000) (herein, the "Fixed
Fee") for certain development services and licenses related to the
Intelligent Seat Technology.
4.2 In consideration of the payment of the Fixed Fee,
Textron's obligation to pay royalties for any products designed as of
the date hereof relating to Patents and Know-How transmitted or
disclosed on or before May 30, 1996 and sold in commercial quantities
shall expire on December 31, 1999. From and after January 1, 2000,
Textron shall pay Royalties for products which actually incorporate
Patents and Know-How transmitted to Textron by BCAM after May 31, 1996
and sold in commercial quantities by Textron or its sublicensee, as
the case may be; provided however, that Textron shall not pay
Royalties with respect to any products sold to Xxxx Corporation to the
extent such products incorporate Patents or Know-How to which Xxxx
Corporation ("Lear") has a right and license pursuant to that certain
Agreement dated September 29, 1993 ("Lear Agreement") and further
provided that Textron shall pay Royalties with respect to products
sold to Lear which incorporate BCAM patents, technology and know-how
to which Lear has no right or license pursuant to the Lear Agreement.
The Royalties payable shall be: (i) with respect to Transportation
industry products, the amount per unit as set forth on Exhibit 4.2
hereto; and (ii) with respect to each unit of product designed for
wheelchairs, hospital beds and office furniture applications,
Royalties equal to five percent (5%) of the net selling price of each
unit of product. For purposes of this Agreement, "net sales price"
means the sales price less discounts, sales or other taxes, shipping,
insurance, packaging, duties, commissions, purchased components and
allowances for returned products.
4.3 Notwithstanding the provisions of Section 4.2 hereof, no
Royalties shall be due or payable with respect to: (i) products
incorporating Intelligent Seat Technology for which a sales commission
is payable to BCAM pursuant to this Agreement; or (ii) any products
for which Textron is granted a license under this Agreement which are
not produced in commercial quantities.
4.4 It is expressly understood and agreed that Textron shall
receive a credit for a portion of the Fixed Fee in the aggregate
amount of $150,000 (the "Credit") against any Royalties due and
payable hereunder, such amount to be credited proportionately over a
four (4) year period (the "Period") commencing in the first year when
Royalties become payable; provided however, that in no event shall the
Credit exceed the Royalties due in any one year during such period. If
the accrued Royalties do not equal the Credit in any given year, such
remainder Credit shall be rolledover and added the next year's
proportion of the Credit. If at the end of the Period there is still
outstanding any portion of the Credit, then the Credit shall be
carried forward for an additional period of one (1) year, after which
time the Credit, if not used, shall be extinguished.
4.4 Royalties payable hereunder shall be paid within 31 days
after the end of each calendar quarter with respect to sales by
Textron of products subject to Royalties during such quarter.
4.5 The Fixed Fee and Royalties set forth in this Article IV
shall be the entire compensation payable by Textron for the License
and BCAM's obligations under this Agreement.
6. Except as specifically amended herein, all other terms and
conditions of the Agreement shall remain the same and unchanged.
IN WITNESS WHEREOF, each party hereto has caused this Amendment to be
signed by its authorized representative as of the date first
BCAM International Inc.
Attest:
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Assistant Secretary Xxxxxxx Xxxxxxx
President
XxXxxx Xxxx Textron Inc.
Attest:
/s/ M A Xxxx By: /s/ Xxxxxx Xxxxxxx
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Assistant Secretary Xxxxxx Xxxxxxx
President
Textron agrees to work with BCAM throughout the term of this Agreement and
intends to incorporate future developments and improvements to Patents and
Know-How into Textrons products where those developments and improvements meet
the competitive market requirements of the customers, including cost, quality
and performance objectives. /s/ MS
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/s/ GD
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E-1
