EXHIBIT 10.17
TECHNOLOGY PLANNING AND ASSISTANCE AGREEMENT
THIS TECHNOLOGY PLANNING AND ASSISTANCE AGREEMENT (this "AGREEMENT") is
made and entered into, effective as of September 28, 2001 (the "EFFECTIVE
DATE"), by and between New Visual Corporation, a Utah corporation ("NVC"), and
Adaptive Networks, Inc., a Massachusetts corporation ("ANI") (each, a "PARTY,"
collectively, the "PARTIES").
WHEREAS, NVC is in the business of designing and developing high-speed
transmission technology for data transmission and access to the Internet and
other networks, particularly over copper telephone wire connections;
WHEREAS, ANI is in the business of designing, developing and producing
technology and products for the high-speed transmission and networking of data
and information, particularly over power lines;
WHEREAS, NVC desires to receive from ANI, and ANI desires to provide to
NVC, certain Deliverables (as defined below) under the terms and conditions of
this Agreement; and
WHEREAS, NVC and ANI desire to negotiate and enter into a license and
development agreement, pursuant to which ANI will license certain intellectual
property to NVC;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the Parties agree as follows:
1. ASSISTANCE. ANI agrees to prepare and provide to NVC the
Deliverables described herein in such form, manner and quantities as are
mutually agreed upon by NVC and ANI. ANI shall also make available and provide
NVC with such supporting Services as necessary to allow NVC to understand and
make use of the Deliverables, consistently through the use of qualified
technical personnel, whether employees or independent contractors of ANI.
"SERVICES" shall mean technical, consulting, engineering, advisory, or other
services reasonably requested by NVC. "DELIVERABLES" shall mean each document,
report, component piece of data or information, analysis or other item, tangible
or intangible, that ANI shall provide to NVC as part of a comprehensive project
plan to be provided by ANI to NVC (the "Project Plan") for the development and
use of certain technology relating to high-speed data transmission over copper
telephone wire connections (the "Project") including: (i) a detailed "White
Paper" describing the proposed Project, technological scheme and supporting
theory, including mathematical models; (ii) a detailed description of each
component phase of the Project, including the requirements to develop working
simulations and a working prototype of the required technology and (iii) a
detailed description of the requirements for product implementation of the
technology (including required ASICs). Such descriptions shall include, without
limitation, an explanation of the tasks required to be performed at each phase
(including a description of major tasks and development milestones in each
phase), the human and other resources required to be committed at each phase
(both internal and external, as well as recommendations for procuring such
resources), and a time schedule and budget for each phase and the total Project,
each in sufficient detail to permit NVC to understand such items. The Project
Plan shall further contain such detailed technical and developmental information
as may be necessary to permit ANI and NVC to identify the necessary components
of a license of ANI technology to NVC and to form the basis for the negotiation
and entry into a definitive license agreement between the parties (the "Proposed
License Agreement"). The technology and development work covered by the Project
Plan shall use as a basis the document "High Data-Rate Long-Distance
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Communications for Noisy and Attenuated Media such as VDSL," Rev. 1.00, Adaptive
Networks, Inc." ANI acknowledges that the technology and development work
covered by the Project Plan could also make use of certain NVC contributions
regarding the Project theory, simulation work and implementation development
matters, which will be identified.
2. PROPOSED LICENSE AGREEMENT. Using the Project Plan as a basis, the
parties will negotiate in good faith to enter into a license and development
agreement on terms mutually acceptable to each party pursuant to which ANI will
license the necessary Intellectual Property to NVC needed to permit NVC to
implement the Project Plan and to protect NVC against competitors seeking to
utilize the technology described in the Project Plan or licensed to NVC. The
parties hereby agree to use their best efforts to negotiate and enter into the
Proposed License Agreement as promptly as possible following the delivery of the
Deliverables.
3. PROPOSED BUSINESS COMBINATION. The parties hereto agree negotiate in
good faith with the intent of entering into a business combination on terms
mutually agreeable to each party. Each party agrees to make its key officers and
employees available to the other for the purpose of sharing information and to
permit and facilitate and deliver all documents as shall be necessary to allow
each party to do a due diligence investigation of the other party, as well as to
cooperate regarding business development and financing matters during the
negotiations.
4. ASSISTANCE FEE. In consideration of ANI's agreement to provide the
Deliverables, NVC agrees to pay ANI a fee in the amount of Xxx Xxxxxxx
Xxxxxx-xxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$125,000.00) upon execution of
this Agreement, and an additional Xxx Xxxxxxx Xxxxxx-xxxx Xxxxxxxx Xxxxxx Xxxxxx
Dollars (US$125,000.00) two weeks after the execution hereof; provided, however,
that ANI agrees to refund to NVC Xxx Xxxxxxx Xxxxxx-xxxx Xxxxxxxx Xxxxxx Xxxxxx
Dollars (US$125,000.00) if the Proposed License Agreement is not entered into by
the Parties within eight weeks after the execution of this Agreement.
5. OWNERSHIP. (a) The Parties hereby agree that neither Party assigns,
transfers or licenses, and nothing in this Agreement shall be interpreted or
construed that such Party assigns, transfers or licenses, any Intellectual
Property or Confidential Information owned by such Party to the other Party. The
Parties further agree that references in a Deliverable to presently existing
Intellectual Property or Confidential Information of ANI or any other party
shall not assign, transfer or license such Intellectual Property or Confidential
Information to NVC. Any such assignment, transfer or license will only be
granted in a written license agreement executed by the Parties. Subject to the
preceding sentence, ANI grants NVC the royalty-free, perpetual, full and
unrestricted right to use, make use of, reproduce, distribute and create
derivative works of all Deliverables or improvements thereof, and own such
derivative works or improvements.
(b) Notwithstanding anything to the contrary in this Agreement, (i) ANI
acknowledges that NVC owns all right, title and interest in its existing
Intellectual Property and Confidential Information, and any derivative work or
improvement thereof (including any such derivative work or improvement contained
in a Deliverable), and (ii) NVC acknowledges that ANI owns all right, title and
interest in its existing Intellectual Property and Confidential Information, and
any derivative work or improvement thereof (including any such derivative work
or improvement contained in a Deliverable).
(c) "INTELLECTUAL PROPERTY" shall mean any (i) patents, utility models
and design patents (including, without limitation, originals, divisions,
continuations, continuations-in-part, revisions, extensions, reexaminations or
reissues), and applications and disclosures for any classes or types of patent
rights, (ii) all trademarks, service marks, trade dress, logos, trade names, and
corporate names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
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applications, registrations, and renewals in connection therewith, (iii) all
works, whether or not copyrightable, all copyrights, together with all
translations, adaptations, derivations, and combinations thereof, and all
applications, registrations, and renewals in connection therewith, (iv) all mask
works and all applications, registrations, and renewals in connection therewith,
(v) all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (vi) all computer software
(including data and related documentation), (vii) all copies and tangible
embodiments of any of the foregoing (in whatever form or medium), and (viii) any
equivalent rights of any of the foregoing in all countries of the world.
6. CONFIDENTIAL INFORMATION. The Parties acknowledge that, in
performing this Agreement, a Party (the "RECEIVING PARTY") will or may receive,
obtain or come to know of any information or material that is or will be owned
by and is confidential to, proprietary to and/or Intellectual Property of the
other Party ("CONFIDENTIAL INFORMATION"). Except to the extent expressly
permitted by this Agreement, the Receiving Party shall not use or disclose the
Confidential Information for any reason, except to the extent such use or
disclosure is necessary for performing this Agreement, and shall not use, make
use of, disclose or give or permit access to Confidential Information, whether
in tangible or intangible form, at any time without prior written consent of the
other Party. The Receiving Party shall cause its employees and contractors to
comply with the provisions of this Section 6 and, both during and after the term
of this Agreement, shall take all necessary precautions to prevent unauthorized
disclosure or use of any Confidential Information. Promptly upon termination of
this Agreement or request, the Receiving Party shall return or give any tangible
materials, in whatever form, containing any Confidential Information to the
other Party.
7. AMENDMENTS. No modifications or amendments to this Agreement shall
be valid unless in writing and signed by and on behalf of both Parties. No
cancellation shall be valid unless signed and delivered in writing by the
Parties.
8. ENTIRE AGREEMENT. This Agreement constitutes 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.
9. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. If any provision of this Agreement is invalid or unenforceable, the
remaining provisions shall be fully enforceable and the invalid or unenforceable
provision shall be automatically replaced by a provision that is as similar as
possible in terms to such invalid or unenforceable provision, but is valid and
enforceable.
10. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California without
regard to its conflict of laws principles. All claims and disputes arising out
of or relating to this Agreement shall be subject to the exclusive jurisdiction
of the state and federal courts located the county of San Diego in the State of
California.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
NEW VISUAL CORPORATION ADAPTIVE NETWORKS, INC.
By: /S/ XXX XXXXXXXXXX XX. By: /S/ XXXXXXX XXXXX
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Name: XXX XXXXXXXXXX XX. Name: XXXXXXX XXXXX
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Title: CEO Title: PRESIDENT
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