Exhibit 10.2
AMENDED AND RESTATED RESEARCH AGREEMENT
This AMENDED AND RESTATED RESEARCH AGREEMENT (this "Agreement"), dated as
of March 15, 2001, is between SPECTRADISC CORPORATION, a Delaware corporation
("SpectraDisc"), and SPECTRA SCIENCE CORPORATION, a Delaware corporation
("Spectra Science").
Whereas, pursuant to a Technology Transfer Agreement, dated June 30, 1999,
by and between SpectraDisc and Spectra Science (the "Original Technology
Transfer Agreement"), Spectra Science granted to SpectraDisc, and SpectraDisc
had acquired from Spectra Science, an exclusive license to certain patent rights
and technology to develop and commercialize single play DVDs and CDs;
Whereas, SpectraDisc and Spectra Science have amended and restated the
Technology Transfer Agreement as of the date hereof to provide development
rights and a license with respect to limited-play digital media that is adapted
to be read by optical means, including enhancements, applications, processes and
technologies related thereto (for example, CDs, DVDs, LDs, and similar
technologies and processes);
Whereas, SpectraDisc engaged Spectra Science to perform, and Spectra
Science provided, research and development services upon the terms and
conditions of a certain Research Agreement, dated June 30, 1999 (the "Original
Research Agreement");
Whereas, Spectra Science has certain research and development experience
and has the facilities, equipment and employees to permit it to carry out
research and development activities on behalf of SpectraDisc;
Whereas, Spectra Science also has certain resources that would allow it to
provide certain management services to SpectraDisc; and
Whereas, SpectraDisc wishes to retain Spectra Science to provide research
and development services and to provide such general financial and managerial
services under the terms and conditions set forth in this Agreement, and Spectra
Science agrees to and accepts such arrangement.
Now therefore, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Spectra Science and SpectraDisc hereby agree as follows.
Section 1. Definitions. As used herein, capitalized terms shall have the
respective meanings set forth below.
1.1 "Affiliate" of a Person shall mean a Person that directly (or
indirectly through one or more intermediaries) Controls, is Controlled by or is
under common Control with such Person.
1.2 "Amended and Restated Technology Transfer Agreement" shall mean the
Amended and Restated Technology Transfer Agreement, dated as of March 15, 2001,
by and between Spectra Science and SpectraDisc, as amended, modified or
supplemented from time to time.
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1.3 "Benchmark" shall mean the development of processes, technology and
equipment meeting or allowing a user of such to meet the Specifications.
1.4 "Confidential Information" shall mean all Technology disclosed by
Spectra Science to SpectraDisc pursuant to this Agreement, the Original
Technology Transfer Agreement, or the Amended and Restated Technology Transfer
Agreement.
1.5 "Control" (and, with correlative meanings, the terms "Controlled by"
and "under common Control with") shall mean the possession of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting stock, by contract or otherwise. In the
case of a corporation "control" shall mean, among other things, the direct or
indirect ownership of more than 50% of its outstanding voting stock.
1.6 "Force Majeure" shall mean any Act of God, any accident, explosion,
fire, storm, earthquake, flood, drought, peril of the sea, riot, embargo, war or
foreign, federal, state or municipal order of general application, seizure,
requisition or allocation, any failure or delay of transportation, shortage of
or inability to obtain supplies, equipment, fuel or labor or any other
circumstances or event beyond the reasonable control of the party relying upon
such circumstance or event.
1.7 "Person" shall mean any individual, partnership, corporation, firm,
association, unincorporated organization, joint venture, trust or other entity.
1.8 "Product" or "Products" shall have the meaning set forth in the
Amended and Restated Technology Transfer Agreement.
1.9 "Specifications" shall mean the technology, manufacturing, packaging
and quality control specifications or requirements of Panasonic Disc Services
Corporation or an equivalent major disc replicator regarding the creation and
mass production of commercially viable single- or limited-play CDs and DVDs.
1.10 "Spectra Science Technology" shall have the meaning set forth in the
Amended and Restated Technology Transfer Agreement.
1.11 "Spectra Science Special Technology" shall have the meaning set
forth in the Amended and Restated Technology Transfer Agreement.
1.12 "SpectraDisc Field" shall have the meaning set forth in the Amended
and Restated Technology Transfer Agreement.
1.13 "SpectraDisc Improvements" shall have the meaning set forth in the
Amended and Restated Technology Transfer Agreement.
1.14 "Technology" shall have the meaning set forth in the Amended and
Restated Technology Transfer Agreement.
Section 2. Research and Development; Management Services.
2.1 Research and Development Services. SpectraDisc hereby engages
Spectra Science, and Spectra Science hereby agrees to undertake research and
development in connection with the production of technology, processes,
materials and equipment necessary for the manufacturing by SpectraDisc of
Products that meet the
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Specifications (the "Research and Development"). Such services shall be provided
as follows:
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2.1.1 Research and Development; Hardware.
(i) During the term of this Agreement, Spectra Science shall
use commercially reasonable efforts to conduct the Research and Development on
behalf of SpectraDisc in a prudent, skillful and diligent manner. Spectra
Science shall furnish all labor, supervision, services, supplies and materials
necessary to perform the Research and Development as contemplated in the
SpectraDisc budget (including the schedules thereto) annexed hereto as Exhibit
A.
(ii) Spectra Science shall arrange for SpectraDisc to
purchase, and SpectraDisc agrees to purchase from third parties, the necessary
hardware components for the manufacturing unit to be developed by Spectra
Science hereunder (the "Hardware") at the lowest commercially available price.
2.1.2 Other Activities; Subcontracts. During the term of this
Agreement, Spectra Science shall devote such time and effort to the performance
of services pursuant to this Agreement as may be necessary or appropriate to
fulfill its duties as described in this Section 2.1; provided, however, it is
specifically understood and agreed by SpectraDisc that Spectra Science shall not
be required to devote itself, on a full time basis, to the provision of such
services and that Spectra Science shall have the right to engage in its own
research and development activities and in other business activities with other
Persons, and SpectraDisc shall not, by virtue of this Agreement, have any right,
title or interest in or to such independent activities or to the income or
profits derived therefrom and, without limiting Spectra Science's obligation to
use commercially reasonable efforts to provide certain services hereunder,
nothing set forth in this Agreement shall limit or reduce the ability of Spectra
Science to carry on such other activities. SpectraDisc acknowledges and agrees
that, in performing the Research and Development, Spectra Science may (at no
additional cost to SpectraDisc beyond the fees set forth in Section 3 hereof),
and is hereby authorized to, without the prior consent of SpectraDisc, engage or
agree or otherwise collaborate with other Persons, including, without
limitation, Affiliates of Spectra Science, to provide assistance in carrying out
the Research and Development.
2.1.3 Reports and Records. Spectra Science will provide to
SpectraDisc monthly a reasonably detailed report setting forth (a) a summary of
the Research and Development, (b) a description of any material developments
(whether positive or negative) with respect to the Research and Development, and
(c) the estimated time and expenses necessary to complete the Research and
Development. Spectra Science will keep regular laboratory notebook records
documenting its research and development efforts on behalf of SpectraDisc. Such
notebook will be regularly signed and dated in the ordinary course by the
individual or individuals engaged in such research and development efforts and
witnessed by other individuals who understand the research and development.
2.1.4 License to Technology for Development. SpectraDisc hereby
grants to Spectra Science an exclusive (against SpectraDisc and all other
Persons), worldwide, royalty-free license, including the right to license or
sublicense to other Persons, to employ and engage in any and all uses of the
Technology owned or licensed by Disc, and the SpectraDisc Improvements solely
for purposes of permitting Spectra Science to perform its duties hereunder,
including, without limitation, the activities described in Section 2.1.2 hereof.
The foregoing license shall terminate upon termination or expiration of this
Agreement. The foregoing license is granted in addition
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to, and not in substitution for, any other rights of Spectra Science in the
Technology owned or licensed by Disc and the SpectraDisc Improvements whether
pursuant to the Amended and Restated Technology Transfer Agreement or otherwise.
2.1.5 (Intentionally Omitted)
2.1.6 Disclaimer of Warranties. Spectra Science cannot and does not
guarantee that the Research and Development will be successful in whole or in
part, that any materials useful in manufacturing the Product will be developed
or that any developed materials will meet SpectraDisc's or any third party's
needs in manufacturing the Products. To the extent that Spectra Science has
complied with Section 2.1.1 hereof and has not otherwise breached its specific
representations, warranties and covenants contained herein, the failure of
Spectra Science to successfully develop any materials will not in and of itself
constitute a breach by Spectra Science of any representation, warranty, covenant
or other obligation under this Agreement or the Amended and Restated Technology
Transfer Agreement. Spectra Science disclaims all warranties, whether express or
implied, with respect to the Hardware, including warranties of THE HARDWARE'S
merchantability, fitness for a particular purpose, and non-infringement.
2.1.7 Title to Improvements. All right, title and interest to any
intellectual property or improvements developed pursuant to this Amended and
Restated Research Agreement shall be governed by the provisions of the Amended
and Restated Technology Transfer Agreement.
2.2 Management Services.
2.2.1 Services Provided.
(i) Spectra Science will provide persons acting in the capacity of
SpectraDisc's Chief Executive Officer, Chief Technical Officer, and Chief
Financial Officer functions (specifically, those functions set forth on Schedule
2.2 to this Agreement) including, without limitation except as set forth below,
all business and general administrative and general accounting services,
materials, supplies and office facilities to SpectraDisc as contemplated on
Exhibit A annexed hereto, in consideration for the payments set forth in Section
3.1.2 of this Agreement (the "Management Services"), it being understood that
this is a turn-key contract, that SpectraDisc will not in and of itself have
offices or employees available to perform such services and that SpectraDisc
shall not be responsible for any expenses or other charges other than the
payments set forth in Section 3 and its own expenses for purchases of capital
equipment, marketing or business development consultants, legal fees,
independent auditor fees and patent maintenance costs.
(ii) Spectra Science shall at all times maintain comprehensive liability
and workers' compensation insurance and shall obtain a vendor's broad form
endorsement policy which shall name SpectraDisc as an additional insured.
2.2.2 Indemnification.
(i) SpectraDisc shall defend, indemnify and hold Spectra Science and its
affected directors, officers, employees and agents harmless against any claim,
action or loss (including reasonable attorneys' fees and other expenses,
collectively, "Loss") to which
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Spectra Science or such Persons may be subject insofar as a Loss arises out of
or relates, directly or indirectly, to the rights, obligations, or performance
of SpectraDisc under this Section 2.2; provided that the action or inaction of
SpectraDisc or its employees or agents giving rise to such Loss was undertaken
in good faith and in a manner that it reasonably believed to be in or not
opposed to the best interests of SpectraDisc and did not result from any
negligent act or omission on the part of Spectra Science.
(ii) Spectra Science shall defend, indemnify and hold SpectraDisc and its
affected directors, officers, employees and agents harmless against any Loss to
which SpectraDisc or such Persons may be subject insofar as such Loss arises out
of or relates, directly or indirectly, to the rights, obligations, or
performance of Spectra Science under this Section 2.2; provided that the action
or inaction of Spectra Science or its employees or agents giving rise to such
Loss was not undertaken in good faith and in a manner that a reasonably prudent
person would believe to be in or not opposed to the best interests of
SpectraDisc or resulted from any negligent act or omission on the part of
Spectra Science.
2.2.3 Other Activities; Subcontracts. During the term of this
Agreement, Spectra Science shall devote such time and effort to the performance
of services pursuant to this Agreement as may be necessary or appropriate to
fulfill its duties as described in this Section 2.2; provided, however, it is
specifically understood and agreed by SpectraDisc that Spectra Science shall not
be required to devote itself, on a full time basis, to the provision of such
services and that Spectra Science shall have the right to engage in its own
activities and in other business activities. SpectraDisc acknowledges and agrees
that, in providing the Management Services, Spectra Science may (at no
additional cost to SpectraDisc beyond the fees set forth in Section 3 hereof),
and is hereby authorized to, without the prior consent of SpectraDisc, engage or
agree or otherwise collaborate with other Persons, including, without
limitation, Affiliates of Spectra Science, to provide assistance in performing
the Management Services.
3. Payment for Services; Timing of Payments.
3.1 Payments.
3.1.1 R&D and Hardware Fees.
(i) In consideration for the services to be provided by
Spectra Science pursuant to Section 2.1 of this Agreement, SpectraDisc shall pay
to Spectra Science US$47,750 per month (the "R&D Fees"), due and payable in
arrears on the first business day of each month; provided, however, that the
fees hereunder will be increased by 5% of the then applicable annual R&D Fees
hereunder upon each one year extension of this Agreement.
(ii) In further consideration for the services to be provided
by Spectra Science pursuant to Section 2.1 of this Agreement, SpectraDisc agrees
to pay to Spectra Science US$382,000 in one lump sum upon delivery of a
manufacturing unit meeting the Specifications (the "Incentive Fee"); provided,
however, that in the event a manufacturing unit meeting the Specifications is
delivered to SpectraDisc prior to the one year anniversary date of this
Agreement, the Incentive Fee will be reduced by one-
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twelfth for every month after the date of such delivery and before the one year
anniversary of this Agreement.
3.1.2 Management Fees. In consideration for the Management Services
to be provided by Spectra Science pursuant to Section 2.2 of this Agreement,
SpectraDisc shall pay to Spectra Science US$17,958.33 per month (the "Management
Fees"), due and payable in arrears on the first business day of each month;
provided, however, that the Management Fees will be increased by 5% of the then
applicable annual Management Fees upon each one year extension of this
Agreement.
3.2 Costs Absorbed by Spectra Science. In the event that (i) SpectraDisc
has expended all but US$150,000 of the funds raised in connection with its sale
of its Series B Preferred Stock, par value $.01, and (ii) Spectra Science has
not met or achieved the Benchmark and delivered the manufacturing unit meeting
the Specifications to SpectraDisc, Spectra Science shall waive the R&D Fees and
the Management Fees arising during such period, up to a maximum of US$250,000
(based upon the fee structure set forth in Sections 3.1.1 and 3.1.2.).
Section 4. Representations and Warranties.
4.1 Representations, Warranties and Covenants of Spectra Science.
Spectra Science represents and warrants as of the date of this Agreement, as
follows:
(i) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with corporate powers adequate
for executing, delivering and performing its obligations under, this Agreement;
(ii) the execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on the part of Spectra
Science;
(iii) this Agreement has been duly executed and delivered by Spectra
Science and is a legal, valid and binding obligation of Spectra Science,
enforceable against Spectra Science in accordance with its terms; and
(iv) the execution, delivery and performance of this Agreement do not and
will not conflict with or contravene any provision of the charter documents or
by-laws of Spectra Science or any agreement, document, instrument, indenture or
other obligation of Spectra Science.
4.2 Representations, Warranties and Covenants of SpectraDisc.
SpectraDisc represents and warrants as of the date of this Agreement, as
follows:
(i) it a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with corporate powers adequate
for executing, delivering and performing its obligations under, this Agreement;
(ii) the execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on the part of SpectraDisc;
(iii) this Agreement has been duly executed and delivered by SpectraDisc
and is a legal, valid and binding obligation of SpectraDisc, enforceable against
SpectraDisc in accordance with its terms; and
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(iv) the execution, delivery and performance of this Agreement do not and
will not conflict with or contravene any provision of the charter documents or
by-laws of SpectraDisc or any agreement, document, instrument, indenture or
other obligation of SpectraDisc.
Section 5. Confidentiality.
5.1 Confidential Information. Any party receiving Confidential
Information hereunder shall maintain the confidential and proprietary status of
such Confidential Information, keep such Confidential Information and each part
thereof within its possession or under its control sufficient to prevent any
activity with respect to the Confidential Information that is not specifically
authorized by this Agreement, use all commercially reasonable efforts in each
case to prevent the disclosure of any Confidential Information to any other
Person. Such restrictions shall not apply to any Confidential Information which
is (a) independently developed by the receiving party outside the scope of this
Agreement or the Amended and Restated Technology Transfer Agreement, (b) in the
public domain at the time of its receipt or thereafter becomes part of the
public domain through no fault of the receiving party, (c) received without an
obligation of confidentiality from a third party having the right to disclose
such information, (d) released from the restrictions of this Section 5.1 by the
express written consent of the other party hereto, (e) disclosed to any
permitted assignee, permitted sublicensee or permitted subcontractor of a party
hereunder or under the Amended and Restated Technology Transfer Agreement (if
such assignee, sublicensee or subcontractor is subject to the provisions of this
Section 5.1 or comparable provisions of other documents), or (f) required by
law, statute, rule or court order to be disclosed (the disclosing party shall,
however, use commercially reasonable efforts to obtain confidential treatment of
any such disclosure).
5.2 Permitted Disclosures. Notwithstanding the provisions of Section 5.1
hereof, Spectra Science and SpectraDisc may, to the extent necessary, except as
may be otherwise provided in the Amended and Restated Technology Transfer
Agreement, disclose and use Confidential Information consistent with the rights
of Spectra Science and SpectraDisc otherwise granted hereunder or under the
Amended and Restated Technology Transfer Agreement, for the purpose of securing
patent protection for an invention as permitted by such agreement if the party
hereto disclosing such Confidential Information uses commercially reasonable
efforts to obtain an agreement from the recipient of such information to
preserve the confidentiality thereof upon terms reasonably equivalent to those
set forth herein; provided, however, that in each such instance the other party
hereto shall have been notified of the permitted disclosure.
6. Disclaimer of Warranty; Consequential Damages.
6.1 Nothing in this Agreement shall be construed as a representation
made or warranty with respect to intellectual property matters, or that any
Spectra Science Technology, Spectra Science Special Technology, or SpectraDisc
Improvements will not infringe the patent or proprietary rights of any other
Person. In addition, except as expressly set forth in Section 4.1 hereof,
SpectraDisc acknowledges that THE SPECTRA SCIENCE TECHNOLOGY AND SPECTRA SCIENCE
SPECIAL TECHNOLOGY, IS LICENSED "AS IS," AND SPECTRA SCIENCE EXPRESSLY
Amended and Restated Research Agreement -8-
DISCLAIMS AND SPECTRADISC HEREBY WAIVES, RELEASES AND RENOUNCES ANY WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SPECTRA SCIENCE TECHNOLOGY AND SPECTRA
SCIENCE SPECIAL TECHNOLOGY, AND THE SPECTRADISC IMPROVEMENTS INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO RECOVER FROM THE OTHER ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
6.2 Damages; Legal Fees. In the event that Spectra Science materially
breaches its obligations under the terms of this Agreement, Spectra Science and
SpectraDisc agree that SpectraDisc would suffer damages that may be difficult to
determine. Accordingly, in the event of a suit by SpectraDisc on such a claim,
Spectra Science agrees that, if such a breach is found by a court of competent
jurisdiction, SpectraDisc may, at its option (i) elect to receive liquidated
damages in the amount one million dollars (US$1,000,000) in lieu of proving
actual damages, or (ii) seek actual damages without limitation. In the event of
litigation between the parties with respect to this Agreement the loosing party
shall indemnify and hold harmless the prevailing party for the legal and expert
witness fees and expenses in connection with such litigation, including the
legal fees and expenses to enforce this indemnification.
7. Term and Termination.
7.1 Term. This Agreement shall be effective as of the date hereof and
shall continue in force or effect for a period of one year thereafter (the
"Term"), unless earlier terminated by mutual agreement of the parties or as
provided in Section 7.2 or 7.3 hereof; provided, however, that this Agreement
will be extended for successive one year periods (each, a "Successive Term")
unless notice is given by a party hereunder of such party's intention not to
extend this Agreement no later than 90 days prior to the end of such Term or
Successive Term, as applicable; provided, however, that during the Successive
Term this Agreement may be terminated as provided in Section 7.2 or 7.3.
7.2 Termination by Spectra Science. Spectra Science shall have the right
to terminate this Agreement, effective immediately upon written notice of
termination to SpectraDisc, in the event that SpectraDisc fails to perform or
observe or otherwise breaches any of its material obligations under this
Agreement and such failure or breach continues for a period of 60 days after
receipt by SpectraDisc of written notice thereof to SpectraDisc from Spectra
Science.
7.3 Termination by SpectraDisc. SpectraDisc shall have the right to
terminate this Agreement at any time effective upon ten days' prior written
notice of termination to Spectra Science.
7.4 Effect of Termination. Sections 2.1.1, 5, 6, 7.4, 8, 10, 11, 15 and
16 of this Agreement, and all obligations to pay any amounts due hereunder,
shall survive, and shall not be affected by, any termination of this Agreement
pursuant to this Section 7.
Section 8. No Implied Waivers; Rights Cumulative.
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No failure on the part of Spectra Science or SpectraDisc to exercise and no
delay in exercising any right, power, remedy or privilege under this Agreement,
or provided by statute or at law or in equity or otherwise, including, without
limitation, the right or power to terminate this Agreement, shall impair,
prejudice or constitute a waiver of any such right, power, remedy or privilege
or be construed as a waiver of any breach of this Agreement or as an
acquiescence therein, nor shall any single or partial exercise of any such
right, power, remedy or privilege preclude any other or further exercise thereof
or the exercise of any other right, power, remedy or privilege.
Section 9. Force Majeure.
Each party shall be excused for any failure or delay in performing any of its
obligations under this Agreement, other than the obligations of either party to
make any payments to the other party hereunder, if such failure or delay is
caused by Force Majeure.
Section 10. Relationship of the Parties.
Nothing contained in this Agreement is intended, or is to be construed, to
constitute Spectra Science and SpectraDisc as partners or joint venturers or
Spectra Science as an employee of SpectraDisc. Neither party hereto shall have
any express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party.
Section 11. Notices.
All notices, requests and other communications to Spectra Science or SpectraDisc
hereunder shall be in writing (including telecopy or similar electronic
transmissions), shall refer specifically to this Agreement and shall be
personally delivered or sent by telecopy or other electronic facsimile
transmission (with confirmation of receipt) or by registered mail or certified
mail, return receipt requested, postage prepaid, in each case to the respective
address specified below (or such other address as may be specified in writing to
the other party hereto):
Spectra Science Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
SpectraDisc Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
With copies to:
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Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxxxx Digital, Inc.
0000 X Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx Xxxxx
Any notice or communication given in conformity with this Section 11 shall be
deemed to be effective when received by the addressee, if delivered by hand,
telecopy or other facsimile transmission and three days after mailing, if
mailed.
Section 12. Further Assurances.
Each of Spectra Science and SpectraDisc agrees to duly execute and deliver, or
cause to be duly executed and delivered, such further instruments and do and
cause to be done such further acts and things, including, without limitation,
the filing of such additional assignments, agreements, documents and
instruments, that may be necessary or as the other party hereto may at any time
and from time to time reasonably request in connection with this Agreement or to
carry out more effectively the provisions and purposes of, or to better assure
and confirm unto such other party its rights and remedies under, this Agreement.
Section 13. Successors and Assigns.
The terms and provisions of this Agreement shall inure to the benefit of, and be
binding upon, Spectra Science, SpectraDisc, and their respective successors and
assigns; provided, however, that neither Spectra Science nor SpectraDisc may
assign or otherwise transfer any of its rights and interests, nor delegate any
of its respective obligations, hereunder without the prior written consent of
the other party hereto (which consent may not be unreasonably withheld);
provided further, however, that Spectra Science and Spectra Disc may, without
consent, fully assign its rights and interest, and delegate its obligations,
hereunder, effective upon written notice thereof, to (a) an Affiliate if such
Affiliate assumes all of the obligations of the assignor hereunder and this
Agreement remains binding upon Spectra Science and Spectra Disc, as the case may
be, or (b) to any Person which acquires all or substantially all of the assets
of Spectra Science or SpectraDisc or which is the surviving Person in a merger
or consolidation with such party. Any attempt to assign or delegate any portion
of this Agreement in violation of this Section 13 shall be null and void.
Subject to the foregoing, any reference to Spectra Science or SpectraDisc
hereunder shall be deemed to include the successor thereto and assigns thereof.
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Section 14. Amendments.
No amendment, modification, waiver, termination or discharge of any provision of
this Agreement, nor consent to any departure by Spectra Science or SpectraDisc
therefrom, shall in any event be effective unless the same shall be in writing
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by Spectra
Science and SpectraDisc, and each amendment, modification, waiver, termination
or discharge shall be effective only in the specific instance and for the
specific purpose for which given. No provision of this Agreement shall be
varied, contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Spectra Science and SpectraDisc.
Section 15. Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware. Any suit or proceeding arising out of or relating to this
Agreement will be heard exclusively in the federal or state courts sitting in
Providence, Rhode Island. To the extent that the Uniform Computer Information
transactions Act applies to any of the intellectual property addressed herein,
the application of such act to the interpretation, enforcement and construction
of this Agreement is rejected.
Section 16. Restrictive Covenant.
For the duration of this Agreement and indefinitely thereafter, Spectra Science
and Xxxxx Xxxxxxx, individually, and Affiliates Controlled by either or both
them, each severally covenant that he, she, or it shall not compete directly or
indirectly, with SpectraDisc in the SpectraDisc Field nor in any business in
which Spectra Disc may engage relative to the production, commercialization, or
development of Products, CDs DVDs or LDs (such restricted businesses being
collectively referred to herein as the "Business"), nor shall he, she, or it,
directly or indirectly, license or otherwise grant or sell property rights
(including, but not limited to, Technology) to any party other than SpectraDisc
for the purpose of engaging in the Business; provided, however, that in the
event all or substantially all of the assets of Spectra Science are acquired,
whether by sale, merger, consolidation or otherwise, to a Person (the
"Purchaser") who, prior to such transaction was, directly or indirectly, engaged
in competition with Spectra Disc in the Business, then this restrictive covenant
shall not apply with respect to the activities of such Purchaser as they existed
on the date of such acquisition or to the extent that the assets of Spectra
Science are not used in furtherance of competition in the Business after such
transfer.
Xxxxx Xxxxxxx acknowledges that (i) SpectraDisc is engaged and in the future
will be engaged in the Business, (ii) he is one of the limited number of persons
who developed or is currently developing SpectraDisc's Business, (iii) his
services to SpectraDisc were and are special and unique, (iv) SpectraDisc's
Business is national and international in scope, (v) SpectraDisc would not have
been able to raise equity capital from Xxxxxxxxx Digital Inc. on the date hereof
but for the agreements and covenants contained in this Section 16, (vi) he has
the means to support himself and his dependants other than engaging in the
Business and the provisions of this Section 16 will not impair such
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ability, and (vii) the provisions and of his Section 16 are essential to protect
the business and goodwill of SpectraDisc and are reasonable in all respects in
light of the circumstance under which they were entered.
Each of Spectra Science and Xxxxx Xxxxxxx acknowledge and agree that SpectraDisc
shareholders would be irreparably injured by any violation by them of the
provisions of Section 16 of this Agreement, that damages at law would be
inadequate, and that SpectraDisc shall be entitled to obtain an injunction in
any court of competent jurisdiction to restrain any such violation without the
need to post any bond or prove special damages.
Section 17. Severability.
If any provision hereof should be held invalid, illegal or unenforceable in any
respect in any jurisdiction, then, to the fullest extent permitted by law, (a)
all other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, Spectra Science and SpectraDisc hereby waive
any provision of law that would render any provision hereof prohibited or
unenforceable in any respect.
Section 18. Headings.
Headings used herein are for convenience only and shall not in any way affect
the construction of, or be taken into consideration in interpreting, this
Agreement.
Section 19. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute one and the same
instrument.
Section 20. Entire Agreement.
This Agreement, together with any agreement referenced herein, constitutes, on
and as of the date hereof, the entire agreement of SpectraDisc and Spectra
Science with respect to the subject matter hereof, and all prior or
contemporaneous understandings or agreements, whether written or oral, between
Spectra Science and SpectraDisc with respect to such subject matter are hereby
superseded in their entirety, including but not limited to the Original Research
Agreement.
[Signature Page Follows]
Amended and Restated Research Agreement -13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal and delivered as of the date first above written.
SPECTRADISC CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
____________________________________
Name: Xx. Xxxxx X. Xxxxxxx
Title: President
SPECTRA SCIENCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
____________________________________
Name: Xx. Xxxxx X. Xxxxxxx
Title: President
/s/ Xxxxx X. Xxxxxxx
________________________________________
Xxxxx X. Xxxxxxx, individually,
as to Section 16 only
(SIGNATURE PAGE TO RESEARCH AGREEMENT)
Amended and Restated Research Agreement -14-
