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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]
1
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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 AN
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