EXHIBIT 10.26
AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL, CREDIT OF PAYMENTS
AND REVENUE SHARING AGREEMENT
THIS AMENDED AND RESTATED RIGHT OF FIRST REFUSAL, CREDIT OF PAYMENTS AND REVENUE
SHARING AGREEMENT (this "Agreement") is made and entered into effective as of
November 29, 2004 (the "Effective Date"), by and among New Visual Corporation, a
Utah corporation ("NVC"), Adaptive Networks, Inc., a Massachusetts corporation
(~ANI") and certain stockholders of ANI named below (the "ANI Stockholders").
Each of the foregoing is referred to as a "Party," and collectively all are
referred to as the "Parties."
R E C I T A L S:
A. ANI and NVC have entered or will enter into an Amended and Restated
Development and License Agreement, to be effective as of the Effective Date (the
"Development and License Agreement").
B. Pursuant to the Development and License Agreement, ANI and NVC have agreed to
increase the amount of credit on royalties to which NVC will be entitled in
consideration of NVC's waiver of its rights pursuant to Section 4 of the Right
of First Refusal, Credit of Payments and Revenue Sharing Agreement dated as of
April [12], 2002 among the Parties (the "Prior ROFR Agreement".
C. All other provisions of the Prior ROFR Agreement have previously expired or
become moot by their terms.
D. The Parties therefore wish to amend and restate the Prior ROFR Agreement so
that all expired and moot provisions are terminated.
In order to effect the foregoing, the Parties agree as set forth below. The
recitals to this Agreement shall be considered an integral part of this
Agreement.
1. Amendment and Restatement. The Prior ROFR Agreement is hereby amended and
restated in its entirety as follows: Section 1 is modified to consist solely of
this paragraph, and Sections 2, 3, 4 and 13 are terminated. Except as amended
and restated hereby, the Prior ROFR Agreement shall hereafter be void and of no
effect.
2. [Intentionally Omitted]
3. [Intentionally Omitted]
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4. [Intentionally Omitted]
5. Amendments; Waivers.
No modifications or amendments to this Agreement shall be valid unless in
writing and signed by and on behalf of ANI, NVC and, if such amendment would
affect the obligations of an ANI Stockholder, such Stockholder. No waiver shall
be valid unless signed and delivered by the party to be charged.
6. Entire Agreement.
This Agreement and the Development and License Agreement 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.
7. 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.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts without regard to its conflict of laws
principles.
9. Binding Effect.
This Agreement and the rights and obligations of the parties hereunder shall
inure to the benefit of, and be binding upon, their respective successors,
assigns and legal representatives, but shall not otherwise be for the benefit of
any third party.
10. Notices.
Any notice required or permitted by any provision of this Agreement shall be
given in writing and shall be delivered personally or by courier, or by
registered or certified mail, postage prepaid, addressed: if to ANI or NVC, to
the address for such party given in the Development and License Agreement and,
if to any ANI Stockholder, to the address given for such Stockholder on the
signature page hereto. Notices that are mailed shall be deemed received five (5)
days after deposit in the United States mail. Notices sent by courier or
overnight delivery shall be deemed received two (2) days after they have been so
sent.
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11. Further Instruments and Actions.
The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Agreement.
12. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13. Intentionally Omitted.
IN WITNESS WHEREOF, the Parties hereto have executed this AMENDED AND
RESTATED RIGHT OF FIRST REFUSAL, CREDIT OF PAYMENTS AND REVENUE SHARING
AGREEMENT to be effective as of the Effective Date.
New Visual Corporation Adaptive Networks, Inc.
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
ANI STOCKHOLDERS
/s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
/s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Address: 00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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