Exhibit
10.11
. LICENSE TERMINATION
AGREEMENT
This License Termination Agreement (this
"Termination Agreement") is entered into as of
September 18, 2006, by and between Quintessence Photon's
Corporation, a Delaware corporation with its principal place of
business at 15632 Roxford Street, Syhnar, California 91342 (the
"Licensor") and Finisar Corporation, a Delaware
corporation with a principal place of business at 1389 Moffett Park
Drive, Sunnyvale, California 94089 (the "Licensee").
Capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed to them in that certain
License Agreement dated as of September 18, 2003 by and between
Licensor and Licensee (the "License Agreement").
RECITALS
WHEREAS, the Licensor granted the Licensee the right and
license to use the Technology and Intellectual Property pursuant to
the License Agreement in accordance with the terms set forth
therein;
WHEREAS, the Licensor and Licensee now wish to terminate
the License Agreement in accordance with the terms set forth in
this Termination Agreement;
WHEREAS, in connection with the termination of
the License Agreement, the Licensor has agreed to pay the Licensee
a termination fee through the issuance of that certain Promissory
Note in the original principal amount of $6,000,000 dated as of the
date hereof (the " Note ");
WHEREAS, in connection with the issuance of the Note, the
Licensor and the Licensee are entering into that certain Security
Agreement between the Licensor and Licensee dated as of the date
hereof, pursuant to which the Licensor grants to Licensee a
security interest in its personal property to secure the
obligations under the Note (the "Security Agreement");
and
WHEREAS, the transactions provided for in this
Termination Agreement are, and are intended by each of Licensor and
Licensee. to be, a contemporaneous exchange for new value given by
Licensee to Licensor;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises contained herein and for other valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Termination. The Licensor and the Licensee hereby
terminate the License Agreement effective as of the Termination
Date (as defined below). In furtherance of the foregoing, as of the
Termination Date, Licensor shall terminate and Licensee shall
relinquish all of Licensee's rights set forth in the License
Agreement, including, without limitation, Licensee's right to use
or sublicense in any manner the Licensed IP or the
Trademarks.
2. Payment of Termination Fee.
Notwithstanding Section 4.1 of
the License Agreement, the Licensor and the Licensee hereby agree
that, in consideration for the termination of the License Agreement
pursuant hereto, the Licensor shall execute and deliver the Note
and the Security Agreement concurrently herewith, which Note shall
constitute, in full, the Termination Fee payable under the License
Agreement.
3. Effective Date of Termination.
The termination of the License
Agreement provided for in Section 1 shall occur only upon the
expiration of ninety one (91) full consecutive calendar days from
the date upon which (a) the Licensee has received the fully
executed Note and Security Agreement and (b) the security interests
provided for in the Security Agreement (i) have attached, and (ii)
have been perfected to the extent perfection can be achieved
through the filing of a UCC-1 financing statement or through the
filing of an assignment or other document in the United States
Patent and Trademark Office (such period, the "Waiting
Period"), if on that date the Licensor is not the subject
of any Insolvency Proceeding or Avoidance Proceeding (the
"Termination Date"). If an Insolvency Proceeding or an
Avoidance Proceeding is pending on the date which is ninety one
(91) full consecutive calendar days from the date upon which each
of the events described in this Section 3(a) and 3(b)(i) and (ii)
have occurred, the Licensee shall be entitled to retain the Note
and the Security Agreement and the License Agreement and all rights
and interests under each of the Note and the Security Agreement and
the License Agreement and the Termination Date shall not occur. If
neit
