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Exhibit 10.55
PREMISES LICENSE AND SERVICES AGREEMENT
This Premises License and Services Agreement ("Agreement") dated as of the 16th
day of October, 2000 is by and among TRUSTEES OF BOSTON UNIVERSITY, a
Massachusetts non-profit corporation with an address at 147 Bay State Road,
Boston, Massachusetts 02215 (the "University"), Beacon Telco, L.P., a Delaware
Limited Partnership with an address at 8 St. Mary's Street, Boston, MA 02215
("Telco") and VERILINK CORPORATION, a Delaware corporation with an address at
950 Explorer Blvd., Huntsville, AL 35806 (the "Company").
WHEREAS, Company entered into a Cooperative Research Agreement on
October 13, 2000 with Telco with respect to the development of an optical
networking product prototype for the telecommunications access market (the
"Developed Prototype Product") (the "Cooperative Research Agreement");
WHEREAS, Company desires to participate in the Photonics Center
Incubator and Accelerator Program and, as a part thereof, to obtain a license
from Trustees of Boston University to use certain University premises and to
obtain certain engineering support services of the University's Photonics Center
in furtherance of the objective which is a research and development project
subject to the Cooperative Research Agreement (the "Project") and intended to
create prototype products based on an optical networking product for the
telecommunications access market with modular, extendable architectures, with
software to be developed thereunder (the "Project");
WHEREAS, the University is willing to license the use of certain
University premises to Company, and to permit Company to access certain
engineering support services, all in furtherance of the Project; and
WHEREAS, the parties intend that in consideration for Company being
provided with access to certain University premises and services granted by the
University to Company under this Agreement, Company shall issue and deliver
Warrants and Bonus Payments to Telco, pursuant to the terms and conditions of
the Cooperative Research Agreement (for purposes of the first Bonus Payment)
and a separate Warrant and Stockholders Agreement between Company and Telco.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the University, Telco and Company
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms
shall have the meaning accorded to them below:
"BACKGROUND INTELLECTUAL PROPERTY" means Intellectual Property owned by
University which was in existence prior to this Agreement and which would be of
use to Company in conducting its work under this Agreement. Licensing of
Background Intellectual Property, if agreed to by the Parties, shall be the
subject of separate licensing agreements between the University and Company,
provided however, that any Background Intellectual Property of the University
which is necessary for Company to use in performing the research and development
activities referenced in this Agreement shall be deemed to have been licensed to
Company on a
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royalty-free basis, but solely for performing such research and development
during the Term of and pursuant to the Cooperative Research Agreement.. To the
extent that a license(s) to Boston University Intellectual Property would be
necessary at law with respect to the use, sale, manufacturing or
commercialization of the Developed Prototype Product by Company after conclusion
of the Cooperative Research Agreement, such license(s) shall be subject to the
mutual agreement of Company and the University. Background Intellectual
Properties and Boston University Intellectual Property are not Subject
Inventions for ownership and rights of use purposes.
"BOSTON UNIVERSITY INTELLECTUAL PROPERTY" shall be deemed to mean any
Intellectual Property in existence as of the Effective Date of this Agreement
which is owned exclusively by the University, and which the University has the
right to license for the purpose specified in the separate license agreement
referenced above.
"BUILDING" means the building located at 8 St. Mary's Street, Boston,
MA 02215
"DEVELOPED PROTOTYPE PRODUCT" means the prototype to be developed
pursuant to the Cooperative Research Agreement, and which expressly excludes any
Generated Information, Subject Inventions, Mask Works, Intellectual Property,
and Background Intellectual Property content to the extent owned by Telco,
Beacon Photonics, Inc., Beacon Photonics, L.P., or the University, including but
not limited to, Boston University Intellectual Property.
"GENERATED INFORMATION" means all information, however characterized,
originally developed or created by each Party's personnel in connection with the
Cooperative Research Agreement, including but not limited to, the source and
object code of any software developed hereunder but, excluding any Confidential
Information, Background Intellectual Property, Boston University Intellectual
Property or content of the Party who did not generate it.
"INTELLECTUAL PROPERTY" means patents, pending patent applications,
Trademarks, copyrights, Mask Works, Confidential Information and other forms of
comparable property rights protected by Federal Law, state law, and foreign
counterparts.
"LICENSED PREMISES" means as applied to Company (a) approximately 2500
square feet of office space on the sixth (6th) Floor of the Building as more
particularly described on the floor plan attached as Exhibit A hereto, and (b)
shared access to, on a basis reasonably equivalent to other users thereof as
determined solely by the University in its good faith discretion, (i) the Optics
Laboratory 615 on the sixth (6th) Floor of the Building; and (ii) other
laboratories in the Building, and the equipment therein. Access to these other
laboratories will be coordinated through the University in its sole good faith
discretion.
"MASK WORK" means a series of related images, however fixed or encoded,
having or representing the predetermined, three-dimensional pattern of metallic,
insulating or semiconductor material present or removed from the layers of a
semiconductor chip product; and in which series the relation of the images to
one another is that each image has the pattern of the surface of one form of the
semiconductor chip product.
"PERMITTED USES" means for purposes of the Company, research and
development for purposes limited to the Project, but excluding any manufacturing
or commercialization purposes.
"SUBJECT INVENTION" means any invention(s) of the University, Telco or
Company, both first conceived and actually reduced to practice (as defined under
the United States patent laws), in the performance of work under this Agreement,
but excluding any Intellectual Property of any Party(s) not the inventor.
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"TRADEMARK" means a distinctive mark, symbol or emblem used in commerce
by a producer or manufacturer to identify and distinguish its goods or services
from those of others.
ARTICLE II
TERM AND TERMINATION
SECTION 2.01. TERM OF AGREEMENT. This Agreement shall co-exist with the
term of the Cooperative Research Agreement and shall commence on the date that
the Cooperative Research Agreement, Warranty and Stockholder's Agreement, and
this Agreement have been fully executed (the "Term Commencement Date"). This
Agreement shall terminate on the expiration or termination of the Cooperative
Research Agreement or in eighteen (18) months from the Term Commencement Date,
whichever first occurs (which date for the termination of the term hereof shall
hereafter be called the "Termination Date").
SECTION 2.02. TERMINATION. In the event that Company shall neglect or
fail to perform or observe any of Company's covenants and agreements herein, and
such nonperformance continues for thirty (30) business days after receipt of
written notice thereof to Company, as the case may be, the University may
terminate this Agreement with respect to the Party in breach without prejudice
to any other right or remedy of the University or of Telco with respect to the
Warranty Agreement and with respect to Telco's right to receive the first Bonus
Payment pursuant to Article IV of the Cooperative Research Agreement and Company
shall forthwith upon request by the University, vacate and yield up the Licensed
Premises; provided, however, that if Company again neglects or fails to perform
or observe its covenants and agreements of the same nature herein after having
cured such covenants and agreements in the past, the University may terminate
this Agreement as to that Party at any time without further notice.
ARTICLE III
CONSIDERATION FOR LICENSED PREMISES,
PHOTONICS CENTER SERVICES AND ENGINEERING SUPPORT
SECTION 3.01. ISSUANCE OF WARRANTS AND BONUS PAYMENTS. Company
acknowledges and agrees that in partial consideration for the University
granting Company a premises license pursuant to Article V and the services to be
provided pursuant to Article IV, Company has agreed to issue and deliver
Warrants and Bonus Payments as defined in, and pursuant to, the terms and
conditions of the Warrant and Stockholders Agreement and the Cooperative
Research Agreement executed between Company and Telco, bearing the same
Effective Date as this Premises License and Services Agreement.
ARTICLE IV
SERVICES PROVIDED BY THE UNIVERSITY
SECTION 4.01. GENERAL SERVICES OF LICENSED PREMISES. The University
agrees to provide to the Licensed Premises, at no additional cost to Company,
janitorial services, waste disposal services of the Office of Environmental
Health Services pursuant to Section 5.15., electricity, heat, air conditioning,
and domestic water in the same manner and amounts as such services and utilities
are provided to other occupants of the Building. The University reserves the
right to interrupt, curtail, stop or suspend the furnishing of services provided
for in this Section 4.01 and the operation of Building systems, when necessary
by reason of accident or emergency, or of repairs, alterations, replacements or
improvements in the reasonable judgment of the University desirable or necessary
to be made, or of difficulty or inability in securing supplies or labor, or of
strikes, or of any other cause beyond the reasonable control of the University,
until
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said cause has been removed. The University shall have no responsibility or
liability for any such interruption, curtailment, stoppage, or suspension of
services or systems.
SECTION 4.02. OFFICE SUPPLIES AND EQUIPMENT. During the Term, the
University shall provide Company with (i) use of office furniture currently
located in the office space portion of the Licensed Premises, (ii) use of a
telephone (not including the fees for the use thereof), (iii) shared use of and
access to a copy machine, and (iv) access to the University network consistent
with the University's computer use policies and under the direction of the
University's Office of Information.
SECTION 4.03. LABORATORY SUPPLIES. Company shall be solely responsible
for providing all of the laboratory supplies and consumables that it requires
for use in the Licensed Premises related to the development of the Project, as
well as the maintenance, loss of, or damage to any of these laboratory supplies
and consumables. In the event that the University provides any such laboratory
supplies and consumables to Company, Company shall pay the University for all
such laboratory supplies and consumables it uses, at rates customarily imposed,
as well as be responsible for the maintenance, loss of, or damage to any such
miscellaneous laboratory supplies and consumables. The University shall invoice
Company for such laboratory supplies and consumables to be paid by Company
within thirty (30) days of receipt of an invoice.
SECTION 4.04. TECHNICAL AND ENGINEERING DEVELOPMENT SUPPORT. In
addition to the services to be provided pursuant this Article IV, Company shall
be entitled to have access to technical and engineering personnel of the
University through its Photonics Center, as determined solely by the University
in its good faith discretion, to provide assistance only and solely with respect
to the Project (the "Engineering Services").
SECTION 4.05. UNIVERSITY PERSONNEL AGREEMENTS AND POLICIES. Company and
Telco each acknowledges and agrees that as a condition of employment by the
University, the technical, engineering and academic personnel of the University
are required to execute agreements with the University which, by their terms,
will result in all Intellectual Property Rights, Generated Information and
Subject Inventions conceived and/or developed by such personnel while employed
by the University, belonging solely and exclusively to the University.
Accordingly, and notwithstanding any separate confidentiality agreements that
Company may enter into with any University personnel pursuant to Article 6.01.a.
of this Agreement, all such Intellectual Property Rights, Generated Information
and Subject Inventions shall be owned exclusively by the University and
accordingly, no disclosure of the same to the University by such University
personnel shall be deemed to be a disclosure of Company Confidential Information
in violation of any obligations which any such personnel may have undertaken
with Company. Company and Telco each acknowledges and agrees that no provision
of this Agreement or of the Cooperative Research Agreement is intended to or
shall otherwise operate in any way to modify or waive the requirements contained
in such agreements. With respect to Company Confidential Information, Company
acknowledges and agrees that any disclosures of such Confidential Information by
Company must only be pursuant to confidentiality agreements between Company and
University personnel as individuals. The terms and conditions of such
confidentiality agreements are for Company alone to dictate, and the University
shall not be responsible or liable to Company or to any third party for any
breach of those agreements by such personnel and any damages which the Company
or any such third party might incur as a result.
ARTICLE V
LICENSE OF THE LICENSED PREMISES
SECTION 5.01. LICENSED PREMISES. The University hereby grants to
Company, and Company hereby accepts from the University, the non-exclusive right
to use the Licensed
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Premises as the same may from time to time be constituted after changes therein,
additions thereto and eliminations therefrom pursuant to the terms and
conditions of this Agreement and subject to the rights of the University
hereinafter reserved. Company hereby acknowledges and agrees that the Licensed
Premises, including but not limited to all manner of resources to which Company
will have access in connection therewith, are being provided by the University
and are hereby accepted by Company on an "AS IS" and "AS SHOWN" basis with no
warranties or representations of any kind having been made by the University or
to be implied.
SECTION 5.02. APPURTENANT RIGHTS. Company shall have, as determined
solely by the University, as appurtenant to the Licensed Premises, rights to use
as well as the right to permit others to use in common, subject to any
University safety policies and procedures in effect during the Term and
generally applicable to other users of the Building, those common roadways,
walkways, elevators, lobbies, hallways and stairways necessary and appropriate,
for access to that portion of the Building occupied by the Licensed Premises.
Company shall also have access, in common with other occupants of the Building,
to conference rooms on an "as-available" basis.
SECTION 5.03. EXCLUSIONS AND RESERVATIONS. All the perimeter walls of
the Licensed Premises except the inner surfaces thereof, any balconies, terraces
or roofs adjacent to the Licensed Premises, and any space in or adjacent to the
Licensed Premises used for shafts, stacks, pipes, conduits, wires and
appurtenant fixtures, ducts, electric or other utilities, or other Building
facilities, and the use thereof, as well as the right of access through the
Licensed Premises for the purpose of operation, maintenance, decoration and
repair, are expressly reserved to the University.
SECTION 5.04. LICENSE AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE RIGHT TO ACCESS AND USE THE LICENSED PREMISES UNDER THIS AGREEMENT SHALL BE
DEEMED TO BE A LICENSE ONLY AND SHALL NOT BE CONSTRUED TO BE A LEASE, JOINT
VENTURE, OR PARTNERSHIP, OR AS EVIDENCING ANY RELATIONSHIP BETWEEN THE
UNIVERSITY AND COMPANY OTHER THAN AS LICENSOR AND LICENSEES RESPECTIVELY. NO
INTEREST IN THE REAL ESTATE INCLUDING BUT NOT LIMITED TO ANY AND ALL ASSOCIATED
FIXTURES IS CONVEYED BY THE UNIVERSITY TO COMPANY.
SECTION 5.05. PERMITTED USES. Company shall be entitled to occupy and
use the Licensed Premises solely for the Permitted Use and for no other purpose.
Service and utility areas (whether or not a part of the Licensed Premises) shall
be used only for the particular purpose for which they were designated.
SECTION 5.06. PROHIBITED USES. Notwithstanding any provision of this
Agreement which may indicate or suggest the contrary, including but not limited
to Section 5.05 above, Company agrees not to use, or suffer or permit the use
of, or suffer or permit anything to be done in or around any part thereof (i)
which would violate any of the covenants, agreements, terms, provisions and
conditions of this Agreement, (ii) for any unlawful purposes or in any unlawful
manner, or (iii) which, in the reasonable judgment of the University, shall in
any way (a) impair or tend to impair the appearance or reputation of the
Building, (b) impair or interfere with or tend to impair or interfere with any
of the Building services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building, or (c) occasion discomfort,
inconvenience or annoyance to any of the other tenants or occupants of the
Building, whether through the transmission of noise or odors or otherwise.
SECTION 5.07. LICENSES AND PERMITS. To the extent allowed by any
applicable laws and regulations, Company may conduct research and development in
pursuit of the Project and
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consistent with the terms of the Cooperative Research Agreement, and dispose of
waste materials, under University's existing licenses and permits but such
licenses and permits shall not be deemed to in any way expand upon the singular
purpose for which the University has agreed to permit Company to access and use
the Licensed Premises which is solely for the Permitted Use. Company shall have
no right to use University licenses and permits outside of the Licensed Premises
and any other University owned property without the written permission of the
University. In addition, Company shall coordinate any handling or disposal of
any hazardous material with the University pursuant to Section 5.15. If any
governmental license or permit other than existing University licenses and
permits shall be required for the proper and lawful conduct of the Permitted Use
by Company, or if such existing licenses and permits are otherwise insufficient
for the Permitted Use, Company, at no cost or expense to the University or any
third party, shall duly procure and thereafter maintain for the duration of this
Agreement whatever licenses and/or permits are required, such additional license
or permit and submit the same to inspection by the University. Company, at
Company's expense, shall at all times comply with the terms and conditions of
each such license or permit in this Section 5.07.
SECTION 5.08. CHANGES OR ALTERATIONS BY THE UNIVERSITY. The University
reserves the right, exercisable by itself or its nominee, at any time and from
time to time without the same constituting an actual or constructive eviction
and without incurring any liability to Company therefor or otherwise affecting
Company's obligations under this Agreement, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Licensed Premises) and the fixtures and equipment thereof, as
well as in or to the street entrances, halls, passages, elevators, escalators,
and stairways thereof, as it may deem necessary or desirable, and to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building.
Nothing contained in this Section 5.08 shall be deemed to relieve Company of any
duty, obligation or liability of Company with respect to making or causing to be
made any repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority. To the extent that Company
purchases any equipment or property pursuant to the Cooperative Research
Agreement in connection with the Project such equipment or property may not
become a fixture of the Building without the University's express prior written
consent in each instance. In the event any equipment and/or property does become
a fixture of the Building, the University shall be entitled to purchase, and
Company agrees to sell to the University, Company's ownership interest in any
and all such equipment and property on a depreciated cost basis consistent with
industry practice.
SECTION 5.09. ALTERATIONS AND IMPROVEMENTS BY COMPANY. Company agrees
not to make any alterations, installations, removals, additions or improvements
in or to the Licensed Premises without the University's prior written consent,
which consent shall be in the University's sole and unfettered discretion.
SECTION 5.10. REPAIRS BY COMPANY. Company agrees to keep or cause to be
kept the Licensed Premises neat and clean and in such repair, order and
condition as the same are in on the Term Commencement Date or may be put in
during the Term, reasonable use and wear thereof and damage by fire or
unavoidable casualty excepted. Without limiting the generality of the foregoing,
Company agrees to replace all windows with glass of the same quality whenever
broken as a result of negligence or misconduct attributable to Company. Company
agrees that any and all repairs hereunder shall be made by or at the direction
of the University's Office of the Physical Plant and, unless otherwise agreed,
at Company's sole and respective cost and expense.
SECTION 5.11. RULES AND REGULATIONS. Company and an their respective
servants, employees, agents, visitors and licensees will faithfully observe such
rules and regulations as the University hereafter at any time or from time to
time may make and may communicate in writing to Company, and which in the
reasonable judgment of the University shall be necessary for the
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reputation, safety, care or appearance of the Building and the land on which it
is situated (together, the "Property"), or the preservation of good order
therein, or the operation or maintenance of the Property, or the equipment
thereof, or the comfort of tenants or others in the Building, provided, however,
that in the case of any conflict between the provisions of this Agreement and
any such rules and regulations, the provisions of this Agreement shall control,
and provided further that nothing contained in this Agreement shall be construed
to impose upon the University any duty or obligation to enforce such rules and
regulations or the terms, covenants or conditions in any other lease, license or
occupancy agreement as against any other tenant or occupant and the University
shall not be liable to Company for violation of the same by any other tenant or
occupant, its servants, employees, agents, visitors, invitees or licensees.
Consistent with this provision, University shall be entitled to require that
Company promptly remove any of its employees and/or agents from the BU Photonics
Center who University reasonably believes are in violation of any rules,
regulations or policies of the University in general or of the BU Photonics
Center in particular. University rules, regulations and policies to which
Company and its personnel are required to comply may be viewed on the University
Website www.bu.edu but are not all-inclusive and may change, from time to time.
Accordingly, it shall be Company's responsibility to ensure that it remains
current and complies with the University's then-current published rules,
regulations and policies, as well as with whatever other rules, regulations or
policies are otherwise required and imposed by the University with the
appropriate informative notice.
SECTION 5.12. ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Company agrees
to give to the University prompt notice of any fire or accident in the Licensed
Premises or in the Building and of any damage to, or defective condition in, any
part or appurtenance of the Building's sanitary, electrical, heating and air
conditioning or other systems located in, or passing through, the Licensed
Premises. Company agrees not to suffer or permit the Licensed Premises or any
fixtures, equipment or utilities therein or serving the same, to be overloaded,
damaged or defaced. Company agrees not to permit any hole to be drilled or made
in any structural part of the Licensed Premises of the Building, without the
prior written consent of the University, which consent shall be at the
University's sole and unfettered discretion.
SECTION 5.13. SIGNS, BLINDS AND DRAPES. Company agrees not to place any
signs on the exterior of the Building or on or in any window, public corridor or
door visible from the exterior of the Licensed Premises without the prior
written approval of the University. Company shall be responsible for obtaining
any required sign permits for signs it erects. No blinds may be put on or in any
window nor may any Building drapes or blinds be removed by Company.
SECTION 5.14. ESTOPPEL CERTIFICATE. In connection with any proposed
sale or financing of all or part of the Building, Company shall upon not less
than ten (10) days' prior notice by the University to Company execute,
acknowledge and deliver to such prospective purchaser or lender a statement in
writing certifying whether this Agreement is unmodified and/or in full force and
effect (or, if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), and the dates to which any
fees and other charges have been paid in advance, if any, and stating whether or
not to the best knowledge of the signer of such certificate the University is in
default in the performance of any covenant, agreement, term, provision or
condition contained in this Agreement and, if so, specifying each such default
of which the signer may have knowledge, it being intended that any such
statement delivered pursuant hereto may be relied upon by any prospective
purchaser of any interest of the University in the Property or any lender,
mortgagee or prospective lender or mortgagee of the University.
SECTION 5.15. PROHIBITED ITEMS. Subject to the provisions of Section
5.07, Company agrees not to bring or permit to be brought or kept in or on the
Licensed Premises or elsewhere in the Building any radioactive, hazardous,
inflammable, combustible or explosive fluid, material, chemical or substance
(hereinafter referred to as "Hazardous Materials") (except such as are
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related to Company's use of the Licensed Premises, provided that the Hazardous
Materials are stored, handled and disposed of in a proper fashion consistent
with applicable University and legal standards) or take any action with respect
thereto in violation of, or in a manner that would give rise to liability under
any applicable law, including without limitation, M.G.L. c. 21C or 21E. Company
shall abide by policies of, coordinate with and notify in writing the
University's Office of Environmental Health and Safety (the "Office of EHS")
with respect to (i) the use, storage, handling and disposal of any Hazardous
Materials, and (ii) any applicable training requirements. Company also agrees
that any and all disposal of its Hazardous Materials hereunder shall be made by
or at the direction of the Office of EHS. The University shall initially be
responsible for all costs and expenses of disposal of Company's and Telco's
Hazardous Materials unless the University determines, in its sole and unfettered
discretion, that the volume of Company's Hazardous Materials for disposal is too
large, all such disposal costs and expenses shall then be paid solely by Company
at rates customarily imposed.
SECTION 5.16. REQUIREMENTS OF LAW, FINES AND PENALTIES. Company , at
its sole expense, shall comply with all laws, rules, orders and regulations of
Federal, State, County and Municipal Authorities and with any direction of any
public officer or officers, pursuant to law, which shall impose any duty upon
the University or Company with respect to and arising out of Company's use or
occupancy of the Licensed Premises, provided however that Company may contest
any such law, rule, order or regulation in good faith so long as the University
is not adversely affected thereby. Company shall reimburse and compensate the
University for all expenditures made by, or damages or fines sustained or
incurred by, the University due to nonperformance or noncompliance with or
breach or failure to observe any term, covenant or condition of this Agreement
upon Company's part to be kept, observed, performed or complied with. If Company
receives notices of any violation of law, ordinance, order or regulation
applicable to the Licensed Premises, it shall give prompt notice thereof to the
University.
SECTION 5.17. COMPANY'S ACTS, EFFECTS ON INSURANCE. Company agrees not
to do or permit to be done any act or thing upon the Licensed Premises or
elsewhere in the Building which will invalidate or be in conflict with any
customary insurance policies covering the Building and the fixtures and property
therein and shall not do, or permit to be done, any act or thing upon the
Licensed Premises which shall subject the University to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried out on said Licensed Premises or for any
other reason. Company shall not (i) do, or permit anything to be done, in or
upon the Licensed Premises, or bring or keep anything therein, except as will
not increase the rate for any insurance applicable to the Building, or (ii) use
the Licensed Premises in a manner which shall increase such insurance rates on
the Building or on property located therein, over that applicable when Company
first took occupancy of the Licensed Premises hereunder. If by reason of failure
of Company to comply with the provisions hereof the insurance rate applicable to
any policy of insurance shall at any time thereafter be higher than it otherwise
would be, then Company shall reimburse the University for that part of any
insurance premiums thereafter paid by the University, which shall have been
charged because of such failure by Company.
SECTION 5.18. CASUALTY AND TAKING. If during the Term all or any
substantial part of the Licensed Premises or Building is damaged materially by
fire or any other cause or by action of public or other authority in consequence
thereof or is taken by eminent domain or the University receives compensable
damage by reason of anything lawfully done in pursuance of public or other
authority, this Premises License shall terminate at the University's election,
which may be made, notwithstanding the University's entire interest may have
been divested, by notice to Company and/or Telco, as applicable, within thirty
(30) days after the occurrence of the event giving rise to the election to
terminate, which notice shall specify the effective date of termination which
shall be not less than ten nor more than thirty (30) days after the date of
notice of such termination. If in any such case the Licensed Premises are
rendered unfit for use and
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occupation and the Agreement is not so terminated, the University shall use due
diligence to put the Licensed Premises, or, in case of a taking, what may remain
thereof (excluding any items installed or paid for by Company which Company may
be required or permitted to remove) into proper condition for use and occupation
to the extent permitted by the net award of insurance or damages available to
the University.
SECTION 5.19. REAL ESTATE TAXES. Company covenants to pay promptly any
or all increases in real estate taxes levied or assessed or becoming payable for
or in respect of the Building and other improvements located therein,
attributable to this Agreement or to Company's use of the Licensed Premises, and
provided further that the University shall provide Company with copies of the
then current (increased) real estate tax bill, the prior bill and a breakdown of
the taxes allocable to the Licensed Premises.
SECTION 5.20. RESERVATION OF AWARD. The University reserves to itself
any and all rights to receive awards made for damages to the Licensed Premises,
Building or Property and the license hereby created, or any one or more of them,
accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Company hereby releases
and assigns to the University all of its rights to such awards and covenants to
deliver such further assignments and assurances thereof as the University may
from time to time request and hereby irrevocably designates and appoints the
University as its attorney-in-fact to execute and deliver in Company's name, as
applicable, and on its behalf all such further assignments thereof. It is agreed
and understood, however, that the University does not reserve to itself, and
neither does Company assign to the University, any damages payable for (i)
movable trade fixtures installed by Company, or any person claiming under
Company, at its own expense or (ii) relocation expenses recoverable by Company
from such authority in a separate action.
SECTION 5.21. END OF TERM. Upon the expiration or other termination of
the Term with respect to the Company, the Company shall peaceably quit and
surrender to the University the Licensed Premises and all alterations and
additions thereto which the Company is not entitled or required to remove under
the provisions of this Agreement, broom-clean, in good order, repair and
condition excepting only reasonable use and wear and damage by fire or other
casualty for which, under other provisions of this Agreement, the Company has no
responsibility of repair or restoration.
SECTION 5.22. ABANDONED PROPERTY. Any personal property in which
Company has an interest which shall remain in the Building or on the Licensed
Premises after the expiration or termination of the Term shall be conclusively
deemed to have been abandoned, and may be disposed of in such manner as the
University may see fit. Notwithstanding the foregoing, Company will, upon
request of the University made not later than thirty (30) days after the
expiration or termination of the Term, promptly remove from the Building any
personal property or, if any part thereof shall be sold, that the University may
receive and retain the proceeds of such sale and apply the same, at its option,
against the expenses of the sale, the cost of moving and storage, any arrears of
charges payable hereunder by Company the University and any damages to which the
University may be entitled under this Agreement or pursuant to law, with the
balance, if any, to be paid to Company.
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ARTICLE VI
INTELLECTUAL PROPERTY
SECTION 6.01. INTELLECTUAL PROPERTY RIGHTS.
a. CONFIDENTIAL INFORMATION- Any disclosure of confidential information
between Company and the University shall be solely pursuant to the terms and
conditions of a separate Non-Disclosure Agreement between these same Parties.
Accordingly, to the extent that Company may need to disclose any of its
Confidential Information (as defined in the Cooperative Research Agreement) to
any of the University's personnel who are designated by the University as being
accessible to Company for purposes of the Project, Company shall be responsible
for entering into its own confidentiality agreements with such individuals,
pursuant and subject to the provisions of Section 4.05 above.
b. GENERATED INFORMATION & COPYRIGHTS Each Party shall have exclusive
ownership in and to Generated Information that it creates, including the
resulting copyright to such original work, unless and to the extent expressly
agreed otherwise on a case by case basis in writing. Accordingly, each Party's
right to use its Generated Information, as defined, shall be subject to the
following provisions:
(i) Each Party agrees to place applicable copyright and other
notices, as appropriate for the protection of copyright and mask work rights, in
human readable form onto all physical media, and in digitally encoded form in
the header of machine readable information recorded on such media such that the
notice will appear in human readable form when the digital data is off loaded or
the data is accessed for display or printout.
(ii) Notwithstanding each Party's exclusive ownership of all
Generated Information it creates, Company shall have the exclusive right to use
all Generated Information with respect to the Developed Prototype Products as an
optical networking product within, and for use in, the telecommunications access
market segments agreed to by Telco and Company pursuant to the Cooperative
Research Agreement ("Field A") and Telco and as well as the University shall
have the non-exclusive right to use such Generated Information outside Field A
("Field B"), provided however, that the University shall make Generated
Information owned by the University available to Company only to the extent that
it applies to Field A, but the University shall be entitled to make market
related Generated Information available to service providers in both Fields.
c. REPORTING SUBJECT INVENTIONS
(i) The Parties agree to disclose to each other through their
respective Project Managers and maintain in confidence, each and every Subject
Invention, whether or not patentable, protectable under the Patent Act, or
otherwise reduced to practice. For the avoidance of doubt, the Parties shall be
obligated to promptly disclose, in writing and on a confidential basis,
inventive ideas conceived in connection with this project.
(ii) These disclosures, to the extent known, shall be enabling to
the extent required under 35 USC 112. The disclosure shall also identify any
known actual or potential statutory bars (i.e. any disclosure of the invention
without restrictions as to disclosure or use imposed upon the recipient, any
offer to sell, and any public use of the invention). The Parties further agree
to promptly disclose to each other, each and any subsequently known event(s)
which is already or may later become, a statutory bar to obtaining patent
protection on any given Subject Invention(s) anywhere in the world. All
invention disclosures shall be marked as confidential
d. TITLE TO INVENTIONS
(i) Subject Inventions shall be owned jointly by the Parties if they
constitute joint inventions of such Parties. To the extent that either Party is
the sole inventor of any Subject Invention(s), that Party alone shall, as
between the Parties, be the sole owner thereof. However,
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and notwithstanding ownership of any given Subject Invention, to the extent that
any Subject Invention is based on or otherwise arose out of access to any
Party's Confidential Information, each Party's right to use the Subject
Invention, including the right to pursue patent protection thereon, shall be
subject to its non-disclosure obligations with respect to the other Party's
Confidential Information. Subject to the foregoing, and with respect to all
Subject Inventions owned solely by the University or jointly by the University
with Company, the University agrees to grant Company the exclusive,
transferable, unrestricted and fully paid-up (subject, however, to the remaining
portions of this subparagraph d. as they apply to additional license terms and
conditions that may be required in order for Company to exercise any such
license and which may contain restrictions and monetary obligations) right and
license to use the Subject Inventions solely for the commercial exploitation of
the Developed Prototype Product as an optical networking product within, and for
use in Field A. In partial consideration for such grant, Company hereby grants
to the University the non-exclusive, transferable, unrestricted and fully
paid-up right and license to use Subject Inventions owned solely by Company or
jointly with the University, in all areas and for all purposes outside of Field
A ("Field B") For purposes of the University's license with respect to Company's
sole Subject Inventions, such license shall apply only to those Subject
Inventions which relate to, or which otherwise arose out of Company's access to,
Telco's Confidential Information, Telco's Background Intellectual Property
and/or the University's Background Intellectual Property. It is agreed, however,
that Company's exercise of its license grant, as well as its right to use
Subject Inventions which were conceived and reduced to practice solely by
Company, shall be subject to the Parties reaching agreement as to the terms and
conditions to govern any license grant to Company under any applicable
Background Intellectual Property Rights owned or licensed by Contractor, and/or
any Intellectual Property Rights owned or licensed by Beacon Photonics, Inc.
and/or Beacon Photonics, L.P. or any Boston University Intellectual Property to
the extent that such Intellectual Property is embodied in, or a license would
otherwise be required at law in order to use any Subject Inventions pursuant to
such license grant without infringing any Intellectual Property rights of Telco,
Beacon Photonics, Inc. Beacon Photonics, L.P. or the University.
(ii) Notwithstanding anything to the contrary in this Agreement, all
Developed Prototype Products developed under the Cooperative Research Agreement
shall be the sole property of Company, and as between the Parties to this
Agreement, Company has the sole and exclusive right to make, use, manufacture
and otherwise commercialize such Developed Prototype Products in any market
throughout the world, including without limitation, Field A and Field B, subject
to obtaining whatever licenses are required under this Agreement, and at law,
with respect to any Subject Inventions, Generated Information which were not
expressly granted by the University under this Agreement with respect to Field
B, as well as any licenses required with respect to any Background Intellectual
Property of the University, Beacon Photonics, Inc., Beacon Photonics, L.P.,
Boston University Intellectual Property and any third party Intellectual
Property. The University covenants and agrees that any rights it may have at law
with respect to the Developed Prototype Products are expressly waived, and the
University agrees not to make, use, manufacture or otherwise commercialize the
Developed Prototype Products in any market in the world, including without
limitation, Field B. Company acknowledges and agrees, however, that no provision
of this Agreement shall be deemed to restrict the University from developing,
alone or with the cooperation of any third parties, any manner of
telecommunications products, whether or not they compete with the Developed
Prototype Products, so long as the University does not use any confidential
information received from Company pursuant to any non-disclosure agreement that
may be executed between the University and Company (which shall not be deemed to
mean or include any non-disclosure of agreements which may be executed between
Company and any University personnel) with respect to the Project, or any
Generated Information or Subject Inventions owned solely by Company that the
University was not licensed hereunder to use.
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e. FILING PATENT APPLICATIONS
(i) The Parties agree that each Party shall be entitled to pursue,
at its own respective cost and expense, patent protection on any Subject
Inventions of which it is the sole inventor except to the extent that doing so
would disclose any Confidential Information of the other Party. In such event,
that other Party's prior permission shall be required, absent which the
inventing Party shall be obligated to modify the patent application to remove
any such Confidential Information content. With respect to Subject Inventions
which constitute joint inventions, the inventing Parties shall determine, on a
case by case basis, whether or not and to what extent patent protection will be
pursued, if at all, it being understood that any co-inventor Party wishing not
to pursue such protection in the interests of preserving the confidentiality of
its Confidential Information shall be entitled to make the final decision.
Subject to the preceding provision, the costs and expenses of pursuing and
maintaining patent protection in the U.S. by co-inventor Parties shall be shared
equally in every respect; to the extent that the co-inventor Parties are not in
agreement regarding the extent to which foreign patent protection should be
pursued, the co-inventor Party desirous of pursuing such protection may do so on
its own, and at its own cost and expense. In such event, the other co-inventor
Party who desired not to pursue such protection shall have no rights with
respect to any resulting foreign patent(s) unless and until it reimburses the
other co-inventor for its share of the out-of-pocket expenses incurred in
pursuing such protection. With respect to Subject Inventions where the sole
inventor Party does not itself wish to pursue patent protection but is willing
to do so in the interests of any other Party, all costs and expense incurred in
connection with the pursuit and maintenance of such protection shall be borne
solely by the non-inventor Party desiring such protection. In any event, any
Party's decision to practice a Subject Invention shall be at its own risk, cost
and expense.
(ii) Consistent with the provisions of this Agreement as they relate
to Company's exclusive rights with respect to Field A as well as the
University's shared non-exclusive rights with respective to Field B, University
(regardless of ownership), shall not be entitled to authorize any third party to
in any manner use or practice, directly or indirectly, any Generated Information
or Subject Invention respectively, within Field A for a period of one (1) year
from expiration or termination of this Agreement at which time, all exclusive
rights shall terminate.
SECTION 6.02. OTHER LICENSING RIGHTS. Any license granted to Company
pursuant to this Article VI shall be subject to the Boston University Charles
River Patent Policy, the provisions of the Bayh-Dole Act, Public Laws 96-517 and
98-620 (codified at 35 U.S.C. 200 et seq.)(the "Bayh-Dole Act") and the
University's prior agreements with other sponsors and shall provide (i) for a
reasonable royalty on net sales of products utilizing the licensed technology to
be paid to the University, (ii) for the University to retain a non-exclusive
license, with the right to grant sub-licenses, for research purposes only, (iii)
that the rights of the United States of America arising from the Bayh-Dole Act,
and the restrictions imposed upon the University by the Act, including any
federal agency approvals required by or restrictions imposed by ss.202(c)(7), be
specifically reserved and incorporated, and (iv) that Company (and its
sub-licensees, if any) will exert its best efforts to introduce products
utilizing the licensed technology into public use as rapidly as practicable.
ARTICLE VII
INABILITY TO PERFORM, EXCULPATORY CLAUSE
SECTION 7.01. INABILITY TO PERFORM, EXCULPATORY CLAUSE. Except as
otherwise expressly provided in this Agreement, this Agreement and the
obligations of Company to pay any fees or charges hereunder and perform all
other covenants, agreements, terms, provisions and conditions hereunder on the
part of Company to be performed shall in no way be affected, impaired or excused
because the University is unable to fulfill any of its obligations under this
Agreement or is unable to supply or is delayed in supplying any service
expressly or impliedly to
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be supplied or is unable to make or is delayed in making any repairs,
replacements, additions, alterations, improvements or decorations or is unable
to supply or is delayed in supplying any equipment or fixtures if the University
is prevented or delayed from doing so by reason of strikes or labor troubles or
any other similar or dissimilar cause whatsoever beyond the University's
reasonable control, including but not limited to, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department of subdivision thereof or any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war, hostilities or other similar or dissimilar emergency. In each
instance of inability of the University to perform, the University shall
exercise reasonable diligence to eliminate the cause of such inability to
perform.
ARTICLE VIII
INSURANCE, EXONERATION AND EXCULPATION.
SECTION 8.01. INSURANCE. Company shall maintain at its sole expense:
(a) Commercial General Liability Insurance naming the University, any managing
agent designated by the University, and any holder of a mortgage of the Building
as additional insureds, subject to a combined single limit of at least One
Million U.S. Dollars ($1,000,000) each occurrence and Five Million U.S. Dollars
($5,000,000) in the aggregate for bodily injury and property damages, and from
time to time thereafter in such higher amounts, if procurable, as may be
reasonably required by the University are customarily carried by responsible
office and laboratory tenants in the City of Boston; (b) so-called contents and
improvements insurance adequately insuring all property belonging to or
removable by Licensee and situated in the Licensed Premises; (c) worker's
compensation insurance providing for the payment of statutory benefits required
by law covering the persons employed by Company; and (d) employer's liability
insurance with a minimum limit of One Million U.S. Dollars ($1,000,000).
SECTION 8.02. CERTIFICATES OF INSURANCE. Such insurances shall be
effected with insurers authorized to do business in Massachusetts under valid
and enforceable policies, and such policies shall name the University and
Company, and any additional parties designated by the University as the
insureds, as their respective interests appear. Such insurance shall provide
that it shall not be canceled without at least ten (10) days' prior written
notice to each insured named therein. On or before the Term Commencement Date
and thereafter prior to the expiration of each expiring policy, original copies
of the policies provided for in Section 8.01. issued by the respective insurers,
or certificates or binders of such policies setting forth in full the provisions
thereof and issued by such insurers, shall be delivered by Company to the
University and certificates as aforesaid of such policies shall upon the request
of the University be delivered by Company to the holder of any mortgage
affecting the Licensed Premises.
SECTION 8.03. WAIVER OF SUBROGATION. Any insurance carried by either
party with respect to the Licensed Premises and property therein or occurrences
thereon shall include a clause or endorsement denying to the insurer rights of
subrogation against the other party to the extent rights have been waived by the
insured prior to occurrences of injury or loss. Each party, notwithstanding any
provisions of this License to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by insurance
containing such clause or endorsement to the extent of the indemnification
received thereunder.
SECTION 8.04. PROPERTY OF COMPANY. In addition to and not in limitation
to the foregoing, Company covenants and agrees that all of its merchandise,
furniture, fixtures and property of every kind, nature and description which may
be in or upon the Licensed Premises or Building, in the public corridors, or on
the sidewalks, areaways and approaches adjacent thereto, during the Term of this
Agreement, shall be at the sole risk and hazard of Company, and that if the
whole or any part thereof shall be damaged, destroyed, stolen or removed from
any cause or
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reason whatsoever, no part of said damage or loss shall be charged to, or borne
by University, unless such damage or loss is due solely to University's
negligence or willful misconduct.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Company agrees to defend (with counsel reasonably
acceptable to the University), hold harmless and indemnify the University, its
employees and agents, from and against any liability for injury, loss, accident,
damages (however characterized), judgements, or settlements, with respect to any
person or property and from any claims, actions, proceedings and expenses and
costs in connection therewith (including, without implied limitation, reasonable
counsel fees): (i) arising from the omission, fault, willful act, negligence or
other misconduct of Company or any of its officers, directors, employees,
agents, representatives or others for whose conduct Company may be responsible,
or from any use made or thing done or occurring on the Licensed Premises not due
to the negligence of the University (ii) resulting from the failure of Company,
or any of its officers, directors, employees, agents, representatives or others
for whose conduct Company may be responsible, to perform and discharge its
covenants and obligations under this Agreement; and/or (iii) otherwise arising
directly or indirectly out of the Project, including but not limited to, any
products liability or intellectual property infringement and/or trade secret
misappropriation claims with respect to the Developed Prototype Product(s) as
well as any follow on products, whether or not considered to be successors of
such Prototype Products.
ARTICLE X
LIMITATION OF LIABILITY
SECTION 10.01. With the exception of Company's obligations pursuant to
the preceding Article IX, Company shall not be liable and in no event shall the
University be liable with respect to any consequential, incidental, special or
other indirect damages, such as lost profits, even if the such party has
knowledge of the likelihood of such damages. Company acknowledges and agrees
that any and all service(s) performed and input provided by University personnel
are being supplied without charge and on an AS-IS basis only and University
shall accordingly have no responsibility or liability with respect to any such
services or input. For any claim concerning the performance or nonperformance of
services by the University hereunder, Company's sole remedy shall be, at the
University's option, to reperform the services at no charge to Company Subject
to the foregoing, for any claims related whatsoever to the subject matter of
this Agreement, regardless of the form of action, whether in contract or in
tort, the liability of the each Party and its employees and agents for damages
shall be restricted to direct damages, and such Party's maximum aggregate
liability to the other with respect to any and all such claims shall not exceed
the fees paid by Company to the University under this Agreement for the right to
use the Licensed Premises.
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ARTICLE XI
ASSIGNMENT, MORTGAGING, SUBLICENCING
SECTION 11.01. Company covenants and agrees that neither this Agreement
nor the term and estate hereby granted nor any interest herein, including any
services, will be assigned, mortgaged, pledged, encumbered or otherwise
transferred (whether voluntarily or by operation of law), and that neither the
Licensed Premises, nor any part thereof, will be encumbered in any manner by
reason of any act or omission on the part of Company, or used or occupied, or
permitted to be used or occupied, or utilized for any reason whatsoever, by
anyone other than Company, or for any use or purpose other than Permitted Uses
of Licensed Premises, or be sublicensed, or offered or advertised for
sublicensing, without prior written consent of the University in every case,
which consent shall be at the University's sole and unfettered discretion.
Notwithstanding the foregoing, this Agreement may be transferred or assigned
without University consent to any wholly-owned subsidiary of Company or to any
party that acquires all or substantially all of the stock or assets of the
Company.
ARTICLE XII
BILLS
SECTION 12.01. All bills and statements for reimbursement or other
payments or charges due from Company and Telco to the University hereunder shall
be due and payable in full thirty (30) days, unless herein otherwise provided,
after submission thereof by the University to Company and/or Telco, as
applicable. Company's failure to make timely payment of any undisputed amounts
indicated by such bills and statements, for work done by the University at
Company's, reimbursement provided for by this Agreement, or any other sums
properly owing by Company to the University under this Agreement, shall be
treated as default of this Agreement, in which event the University shall have
the right to terminate this Agreement as to the defaulting Party upon thirty
(30) days written notice to Company the defaulting Party in addition to all
rights and remedies provided in this Agreement.
SECTION 12.02. INCREMENTAL COSTS. Company agrees to reimburse the
University for all incremental costs incurred by the University with respect to
any and all University personnel that are designated by the University as being
available to the Company with respect to the Project. Incremental costs shall be
deemed to include the University's out-of-pocket costs and expenses such as
travel and living expenses for University personnel engaged in the Project,
provided that (i) all travel and living expenses are incurred only in accordance
with Company's Travel Expense Reimbursement Policy, a copy of which has been
provided to the University, as amended from time to time by Company for its own
business operations, and (ii) any other individual incremental expenses in
excess of $10,000 individually, shall require the prior written approval of the
Company. Incremental costs shall further include all hiring costs, commissions
and salaries of any part-time or full-time personnel who are hired or are
otherwise retained by the University solely for the duration of the Project or
any portion thereof
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ARTICLE XIII
PUBLICITY
SECTION 13.01. Either party may publish or otherwise publicly disclose
the fact that the parties have entered into an agreement to incubate and
accelerate Company at the Photonics Center; provided that, no party may disclose
the specific terms of this Agreement without the prior written consent of the
other party. Beyond this, no party shall use the name of the other party or of
any of their respective personnel in any publication, advertising or promotional
material without the prior written consent of the other, which consent will not
unreasonably be withheld. In any such statements, the relationship of the
parties shall be accurately and appropriately described.
ARTICLE XIV
GENERAL PROVISIONS
SECTION 14.01. SURVIVAL OF OBLIGATIONS. In the event of any termination
of this Agreement, (i) the provisions of Articles III, VI, IX, X, XIII, XIV and
Sections 2.02, 5.19., as well as any accrued payment obligation under this
Agreement, shall survive any such termination; and (ii) such termination shall
not affect either party's rights with respect to any breach or non-performance
by any other party prior to such termination.
SECTION 14.02. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts, without regard to its rules concerning conflicts of laws.
SECTION 14.03. EXCLUSIVE VENUE; CONSENT TO JURISDICTION. Any action,
suit or other proceeding pursuant to, arising under, or touching or concerning
this Agreement or the transactions contemplated hereby shall be brought
exclusively in any court of competent jurisdiction in Suffolk County,
Commonwealth of Massachusetts. The parties agree to take any and all necessary
or appropriate action to submit to the exclusive jurisdiction of any such court.
In any such action, suit or proceeding, in addition to any other relief to which
such party may be entitled.
SECTION 14.04. AMENDMENT AND WAIVER. No provision of or right under
this Agreement shall be deemed to have been waived by any act or acquiescence on
the part of either party, its agents or employees, but only by an instrument in
writing signed by an authorized officer of each party. No waiver by either party
of any breach of this Agreement by the other party shall be effective as to any
other breach, whether of the same or any other term or condition and whether
occurring before or after the date of such waiver.
SECTION 14.05. INDEPENDENT CONTRACTORS. Each party represents that it
is acting on its own behalf as an independent contractor and is not acting as an
agent for or otherwise on behalf of any other Party to this Agreement nor any
third party. This Agreement and the relations hereby established by and between
the University and the Company do not constitute a partnership, joint venture,
agency or contract of employment between them.
SECTION 14.06. SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
SECTION 14.07. NOTICES. All communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt by the
addressee at the addresses set forth below, or such other address as either
party may specify by notice sent in accordance with this section 15.06:
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If to the University: Boston University Photonics Center
8 Saint Mary's Street
Boston, MA 02215
Attention: Deputy Director of the
Photonics Center
With a copy to: Boston University
Office of the General Counsel
125 Bay State Road
Boston, MA 02215
Attention: General Counsel
If to Telco: Beacon Telco, L.P.
c/o Beacon Photonics, Inc., its General Partner
8 Saint Mary's Street, suite 910
Boston, MA 02215
Attention: Alok Prasad
With a copy to: Bingham Dana LLP
150 Federal Street
Boston, MA 02110
Attention: Jack Concannon
If to Company: Verilink Corporation
950 Explorer Blvd.
Huntsville, AL 35806
Attention: Vice President and CFO
With a copy to: Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, N.E., 16th Floor
Atlanta, GA 30303
Attention: Eliot Robinson
SECTION 14.08. SEVERABILITY. In the event any provision of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other term or provision hereof. The parties agree that they will negotiate
in good faith or will permit a court or arbitrator to replace any provision
hereof so held invalid, illegal or unenforceable with a valid provision which is
as similar as possible in substance to the invalid, illegal or unenforceable
provision.
SECTION 14.09. CONFLICT OR INCONSISTENCY. In the event of any conflict
or inconsistency between the terms and conditions hereof and any terms or
conditions set forth in any purchase order or other document relating to the
transactions contemplated by this Agreement, the terms and conditions set forth
in this Agreement shall prevail.
SECTION 14.10. CAPTIONS. Captions of the sections and subsections of
this Agreement are for reference purposes only and do not constitute terms or
conditions of this Agreement and shall not limit or affect the terms and
conditions hereof.
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SECTION 14.11. WORD MEANINGS. Words such as herein, hereinafter, hereof
and hereunder refer to this Agreement as a whole and not merely to a section or
paragraph in which such words appear, unless the context otherwise requires. The
singular shall include the plural, and each masculine, feminine and neuter
reference shall include and refer also to the others, unless the context
otherwise requires.
SECTION 14.12. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all prior agreements and understandings relating
to the subject mater hereof, and no representations, inducements, promises or
agreements, whether oral or otherwise, between such parties not contained herein
or incorporated herein by reference shall be of any force or effect.
SECTION 14.13. RULES OF CONSTRUCTION. The parties agree that they have
participated equally in the formation of this Agreement and that the language
and terms of this Agreement shall not be presumptively construed against either
of them.
SECTION 14.14. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the University, Telco and Company have caused this
instrument to be executed under seal, as of the day and year first above
written.
TRUSTEES OF BOSTON UNIVERSITY
By: /s/ Martin J. Howard
----------------------------------------
Name: Martin J. Howard
Title: Assistant Treasurer
VERILINK CORPORATION
By: /s/ Graham G. Pattison
----------------------------------------
Name: Graham G. Pattison
Title: President and Chief Executive Officer
BEACON TELCO, L.P.
BY BEACON PHOTONICS, INC., ITS GENERAL
PARTNER
By: /s/ Alok Prasad
----------------------------------------
Name: Alok Prasad
Title: President
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