EXHIBIT 10.20
FIRST AMENDMENT
To
SERVICES AGREEMENT DATED AS OF MARCH 31, 2004
This FIRST AMENDMENT (this "Amendment") to that certain Services Agreement dated
as of March 31, 2004 (the "Agreement") by and between New Visual Corporation
(the "Company'), and HelloSoft, Inc. (the "Consultant"), is made and entered
into as of March 3 1, 2004 by and among the Company, the Consultant and Adaptive
Networks, Inc., a Massachusetts corporation having its place of business at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Adaptive"). Capitalized terms used but not
defined herein shall have the meanings assigned thereto in the Agreement.
In consideration of the mutual agreements herein set forth and other
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereby amend the Agreement as follows:
1. This Amendment shall modify the Agreement only with respect to Services
provided to the Company by the Consultant that modify Adaptive's high speed
powerline technology ("PowerStream Technology") or multiple wideband, high speed
communications technology based upon the PowerStream Technology that is jointly
owned by the Company and Adaptive ("MWB Technology"). In all other respects, the
Agreement shall not be effected by this Amendment and Adaptive shall not be
deemed to be a party thereto.
2. Section 3(a) is modified to read in its entirety as follows:
(a) "Company's Confidential Information" means any Company or
Adaptive proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans,
products, services, customers, customer lists, markets, software,
developments, inventions, prototypes, specifications, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information. marketing, finances or other business
information disclosed by the Company or Adaptive either directly or
indirectly in writing, orally or by drawings or inspection of parts or
equipment. Company's and Adaptive's Confidential Information are of
substantial value, and Company's or Adaptive's business, as the case
may be, will be impaired if such Confidential Information is improperly
disclosed or used.
3. Section 3(d) is modified by the addition of the following sentences at the
end thereof:
The Company has received confidential and proprietary
information from Adaptive, and Adaptive is therefore the type of third
party referred to in this Subsection 3(d). Adaptive shall be entitled
to enforce in its own right the rights of the Company set forth in this
Agreement, to the extent that such rights relate to the PowerStream
Technology or the MWB Technology.
4. Section 4(c) is modified to read in its entirety as follows:
(c) The Consultant agrees that if, in the course of performing
the Services, the Consultant incorporates into any Invention developed
hereunder any invention, improvement, development, concept, discovery
or other proprietary information owned by the Consultant or in which
the Consultant has an interest, the Company and Adaptive are each
hereby granted and shall have a nonexclusive, royalty-free, perpetual.
irrevocable, worldwide license to make, have made, modify, use, sell,
sublicense and otherwise use such item in any fashion whatsoever as
part of or in connection with such Invention.
1
5. Section 8(b) is modified to read in its entirety as follows:
(b) In view of the Consultant's access to the Company's and
Adaptive's trade secrets and proprietary know-how, the Consultant
further agrees that, during the term of this Agreement and for a period
of twelve (12) months after the termination of this Agreement, the
Consultant will not, without Company's and Adaptive's prior written
consent, design or develop for any third party any designs, inventions,
improvements, or discoveries that are identical or similar to the
PowerStream Technology or the MWB Technology or that incorporate or are
aided by Consultant's having had access to Company's or Adaptive's
trade secrets and proprietary know-how. Adaptive shall be entitled to
enforce this Subsection 8(b) directly against the Consultant.
6. Section 9(c)(ii) is modified to read in its entirety as follows:
(ii) Sections 2, 3, 4 and 8 hereof shall survive termination
of this Agreement.
7. Adaptive shall be entitled to indemnification under Section 13 to the same
extent as Company.
8. Adaptive shall be entitled to the same rights as Company under Section 14(d).
9. Section 15(d) is modified to read in its entirety as follows:
(d) Modifications. No modifications or amendments to this
Agreement shall be valid unless in writing and signed by and on behalf
of all Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- - - -
Except as expressly provided herein, the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed all as of the day and year first above written.
HelloSoft, Inc. New Visual Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------- ------------------------
Authorized Signature Authorized Signature
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------- ------------------------
Name (Print or Type) Name (Print or Type)
Title: V.P. of Biz. Dev. Title: President & CEO
------------------------- -------------------------
Date 11/22/04 Date 11/22/04
------------------------- -------------------------
Adaptive Networks, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Authorized Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name (Print or Type)
Title President
----------------------
Date Nov 29/04
----------------------
2
