matechexh10_2.htm


    
      
 


    Exhibit
10.2

     

    SPONSORED
RESEARCH AGREEMENT

     

    between

     

    TENSIODYNE
CORPORATION

    (SPONSOR)

     

    and

     

    THE
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA

    (PENN)

     

     

     

     

    TABLE OF
CONTENTS

     

    
      	
              RECITALS

            	
              1

            
	
              ARTICLE
      1.  Definitions

            	
              1

            
	
              ARTICLE
      2.  Sponsored Research

            	
              2

            
	
              ARTICLE
      3.  Term of Agreement

            	
              3

            
	
              ARTICLE
      4.  Reimbursement of Costs, Payment

            	
              3

            
	
              ARTICLE
      5.  Intellectual Property

            	
              3

            
	
              ARTICLE
      6.  Confidentiality

            	
              4

            
	
              ARTICLE
      7.  Publication, Use of Name

            	
              4

            
	
              ARTICLE
      8.  Termination

            	
              5

            
	
              ARTICLE
      9.  Disclaimer of Warranties, Indemnification

            	
              6

            
	
              ARTICLE
      10. Additional Provisions

            	
              7

            
	ATTACHMENT
      A	
              11

            


    

     

     

    
      
         

      

      
         

        
          
 

      

      
         

      

    

     

    SPONSORED
RESEARCH AGREEMENT

     

     

    This
Sponsored Research Agreement ("AGREEMENT") is made by and between The Trustees
of the University of Pennsylvania, a Pennsylvania nonprofit corporation
("PENN"), with offices located at Suite 300, 133 South 36th Street,
Philadelphia, PA 19104-3246, and Tensiodyne Corporation, a corporation organized
and existing under the laws of Delaware ("SPONSOR"), having a place of business
at Los Angeles, California.

     

    This
AGREEMENT is effective as of the ____day of July, 1993 ("EFFECTIVE
DATE").

     

    RECITALS

     

    WHEREAS,
the SPONSOR desires to fund the research of Dr. Campbell Laird of PENN's School
of Engineering in fatigue properties of metals;

     

    WHEREAS,
the Sponsor desires to support such research conducted by PENN in accordance
with the terms and conditions of this AGREEMENT;

     

    WHEREAS,
the research program contemplated by this AGREEMENT is of mutual interest to
SPONSOR and PENN and furthers the educational, scholarship and research
objectives of PENN as a nonprofit, tax-exempt educational institution and may
benefit both SPONSOR and PENN through the creation or discovery of new
inventions;

     

    NOW,
THEREFORE, in consideration of the premises and of the promises and mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:

     

    ARTICLE
1. DEFINITIONS

     

    1.1  CONFIDENTIAL
INFORMATION means PENN INTELLECTUAL PROPERTY and any information or materials in
tangible form that is marked as confidential or proprietary to PENN at the time
it is delivered to SPONSOR, and any other information that is furnished orally
if PENN identifies such information as confidential or proprietary when it is
disclosed and promptly confirms such designation in writing within thirty (30)
days after such disclosure.

     

    1.2.  EFFECTIVE
DATE means the first date written above.

     

     

    
      
         

      

      
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    1.3  LICENSE
AGREEMENT means the License Agreement between the SPONSOR and PENN of even date
herewith.

     

    1.4  PENN
INTELLECTUAL PROPERTY means and includes all technical information, inventions,
trade secrets, developments, discoveries, software, know-how, methods,
techniques, formulae, data, processes and other proprietary ideas, whether or
not patentable or copyrightable, that are first conceived, discovered, developed
or reduced to practice in the conduct of the SPONSORED RESEARCH.

     

    1.5  PRINCIPAL
INVESTIGATOR is Dr. Campbell Laird who has agreed to serve as PRINCIPAL
INVESTIGATOR for the SPONSORED RESEARCH and shall be responsible for the
administration and supervision of the SPONSORED RESEARCH.

     

    1.6  SPONSORED
RESEARCH means the research program described in Attachment A to this
AGREEMENT.

     

    ARTICLE
2. SPONSORED RESEARCH

     

    2.1  PENN
shall commence the SPONSORED RESEARCH promptly after the EFFECTIVE DATE of this
AGREEMENT and upon payment by SPONSOR of any funds owed, and shall use
reasonable efforts to conduct such SPONSORED RESEARCH substantially
in accordance with the terms and conditions of this AGREEMENT. SPONSOR
acknowledges that PENN and the PRINCIPAL INVESTIGATOR shall have the freedom to
conduct and supervise the SPONSORED RESEARCH in a manner consistent with PENN's
research mission.  This AGREEMENT shall not be construed to limit the
freedom of individuals participating in the SPONSORED RESEARCH to engage in any
other research.

     

    2.2  If
the services of the PRINCIPAL INVESTIGATOR become unavailable to PENN for any
reason, PENN shall be entitled to designate another member of its faculty who is
acceptable to both parties to serve as the PRINCIPAL INVESTIGATOR of the
SPONSORED RESEARCH.  If a substitute PRINCIPAL INVESTIGATOR has not
been designated within sixty (60) days after the original PRINCIPAL INVESTIGATOR
ceases his or her services under this AGREEMENT, either party may terminate this
AGREEMENT upon written notice thereof to the other party, subject to the
provisions of Article 7.

     

     

    
      
         

      

      
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    ARTICLE
3. TERM OF AGREEMENT

     

    3.1  The
initial term of this AGREEMENT shall begin on the EFFECTIVE DATE of this
AGREEMENT and shall end on July _, 1995 unless terminated sooner pursuant to
Sections 2.2 or 8.1 hereof.  This AGREEMENT may be extended or renewed
only by the parties' mutual written agreement, which shall be incorporated as an
attached to this AGREEMENT.

     

    ARTICLE
4. REIMBURSEMENT OF COSTS, PAYMENTS

     

    4.1  SPONSOR
agrees to reimburse PENN for all direct and indirect costs incurred in the
conduct of the SPONSORED RESEARCH in an amount not to exceed the total amount of
$200,000.00 as set forth in Attachment A. SPONSOR acknowledges that this amount
is a good faith estimate only and not a guarantee of the cost to conduct the
SPONSORED RESEARCH.  If at any time PENN determines that it will
require additional funds for the SPONSORED RESEARCH, it shall notify SPONSOR and
provide an estimate of the additional amount.  SPONSOR shall not be
liable for any costs in excess of the amount of $200,000.00 as set forth in
Attachment A unless it has agreed in writing to provide additional
funds.

     

    4.2  SPONSOR
agrees to make payments to PENN at the rate of $11,112 per month for eighteen
months beginning October 15, 1995.  All payments are to be made by
check payable in United States dollars, to "The Trustees of the University of
Pennsylvania", and sent to the address set forth in Section 10.5.

     

    4.3  PENN
shall maintain accurate records and books of account relating to this AGREEMENT
in accordance with accepted accounting practices, and shall make such records
and books available to SPONSOR upon reasonable notice during PENN's normal
business hours, but not more frequently than once each calendar
year.

     

    4.4  SPONSOR
agrees that title to any equipment, laboratory animals, or any other materials
made or acquired with funds provided under this AGREEMENT shall vest in PENN,
and such equipment, animals, or materials shall remain the property of PENN
following termination of this AGREEMENT.

     

    ARTICLE
5. INTELLECTUAL PROPERTY

     

    5.1  Prosecution
of Patent Applications and Maintenance of Patents

     

    5.1.1  PENN
agrees to provide promptly to SPONSOR a complete written disclosure of any PENN
INTELLECTUAL PROPERTY reasonably considered

     

     


    
      
         

      

      
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    patentable.  SPONSOR
agrees to advise PENN, no later than thirty (30) days after receipt of such
disclosure, whether it requests PENN to file and prosecute a United States
patent application related to such PENN INTELLECTUAL PROPERTY.  If
SPONSOR does not request PENN to file and prosecute a patent application,
PENN

    may
proceed with such preparation and prosecution at its own cost and expense; but
such patent applications shall be excluded from SPONSOR's right under the
License Agreement.

     

    5.1.2  The
mutual rights and obligations of the parties with respect to filing, maintenance
and prosecution of patents and patent applications respecting PENN's
INTELLECTUAL PROPERTY shall be as set forth in the LICENSE
AGREEMENT.

     

    5.2  The
preparation, prosecution, and maintenance of copyright, trademark and other
intellectual property applications for the PENN INTELLECTUAL PROPERTY shall be
subject to the provisions of Section 5.1.

     

    5.3  PENN
shall retain all right, title and interest in and to the PENN INTELLECTUAL
PROPERTY and any patents, copyrights and other intellectual property protections
related thereto, regardless of which party prepares and prosecutes the
applications associated therewith, or maintains any resulting patents,
copyrights or other intellectual property protections, subject to any express
license granted to SPONSOR under the LICENSE AGREEMENT.

     

    ARTICLE
6. CONFIDENTIALITY

     

    The
rights and obligations of the parties respecting Confidential Information of the
parties received pursuant to this Agreement shall be as set forth in the License
Agreement.

     

    ARTICLE
7. PUBLICATION, USE OF NAME

     

    7.1  SPONSOR
acknowledges that the basic objective of research activities at PENN is the
generation of new knowledge and its expeditious dissemination. To further that
objective, PENN retains the right, at its discretion, to demonstrate, publish or
publicize a description of the results of the SPONSORED RESEARCH, subject to the
provisions of Section 8.2 below.

     

    7.2  Should
the PRINCIPAL INVESTIGATOR desire to disclose publicly, in writing or by oral
presentation, the results of the SPONSORED RESEARCH, the PRINCIPAL INVESTIGATOR
shall notify SPONSOR and PENN in writing of his or her intention at least thirty
(30) days before such disclosure.  The PRINCIPAL INVESTIGATOR shall
include with such notice a description of the oral presentation or, in the case
of a manuscript or other proposed written disclosure, a current draft of such
written disclosure.  SPONSOR may request PENN, no later than thirty
(30) days following the receipt of such

     

     

    
      
         

      

      
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    notice,
to file a patent, copyright or other application related to PENN INTELLECTUAL
PROPERTY contained in such disclosure.  All such filings shall be
subject to the provisions of ARTICLE 5 of this Agreement.  Upon
receipt of such request, PENN and the PRINCIPAL INVESTIGATOR shall arrange a
short delay in publication not to exceed sixty (60) days, to permit filing of a
patent application, copyright or other application by PENN.

     

    7.3  PENN
agrees not to use the SPONSOR's name without the SPONSOR's prior written consent
except that PENN may acknowledge the SPONSOR's funding of this SPONSORED
RESEARCH in scientific publications and in listings of SPONSORED RESEARCH
projects.  SPONSOR agrees not to use PENN's name, or the name of any
trustee, officer, faculty member, student or employee thereof, except in a
manner consistent with the provisions of the LICENSE AGREEMENT.

     

    ARTICLE
8. TERMINATION

     

    8.1  In
addition to the termination right set forth in Section 2.2 hereof, either party
may terminate this AGREEMENT effective upon written notice to the other party,
if the other party breaches any of the terms or conditions of this AGREEMENT and
fails to cure such breach within sixty (60) days after receiving written notice
thereof.

     

    8.2  This
AGREEMENT shall automatically terminate upon the occurrence of a Bankruptcy
Event, as defined in the LICENSE AGREEMENT.

     

    8.3  In
addition, either party may terminate this AGREEMENT for any reason upon ninety
(90) days prior written notice to the other party.

     

    8.4  In
the event of termination of this AGREEMENT prior to its stated term whether for
breach or for any other reason whatsoever, PENN shall be entitled to retain from
the payments made by SPONSOR prior to termination PENN's reasonable costs of
concluding the work in progress.  Allowable costs include, without
limitation, all costs or noncancellable commitments incurred prior to the
receipt, or issuance, by PENN of the notice of termination, and the full cost of
each student and faculty member supported hereunder through the end of such
commitments.  In
the event of termination, PENN shall submit a final report of all costs incurred
and all funds received under this AGREEMENT within sixty (60) days after the
effective termination date.  The report shall be accompanied by a
check in the amount of any excess of funds advanced over costs and allowable
commitments incurred.  In case of a deficit of funds, the SPONSOR
agrees to pay PENN the amount needed to cover costs and allowable commitments
incurred by PENN under this AGREEMENT.

     

    8.5  Termination
of this AGREEMENT shall not affect the rights and obligations of the parties
accrued prior to termination hereof.  The provisions of
ARTICLES

     

     

    
      
         

      

      
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    5,
entitled "Intellectual Property"; 9, entitled "Disclaimer of Warranties,
Indemnification"; and 10, entitled "Additional Provisions", shall survive such
termination.

     

    ARTICLE
9. DISCLAIMER OF WARRANTIES, INDEMNIFICATION

     

    9.1  PENN
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, WARRANTIES WITH RESPECT TO THE CONDUCT, COMPLETION, SUCCESS
OR PARTICULAR RESULTS OF THE SPONSORED RESEARCH, OR THE CONDITION OF ANY
INVENTION(S) OR PRODUCT(S), WHETHER TANGIBLE OR INTANGIBLE, CONCEIVED,
DISCOVERED, OR DEVELOPED UNDER THIS AGREEMENT, OR THE OWNERSHIP,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SPONSORED RESEARCH
OR ANY SUCH INVENTION OR PRODUCT.  PENN SHALL NOT BE LIABLE FOR ANY
DIRECT, CONSEQUENTIAL,
PUNITIVE OR OTHER DAMAGES SUFFERED BY SPONSOR OR ANY OTHER PERSON RESULTING FROM
THE SPONSORED RESEARCH OR THE USE OF ANY SUCH INVENTION OR
PRODUCT.

     

    9.2  SPONSOR
agrees to defend, indemnify and hold harmless PENN, the PRINCIPAL INVESTIGATOR
and any of PENN's faculty, students, employees, trustees, officers, affiliates
and agents (hereinafter referred to collectively as the "INDEMNIFIED PERSONS")
from and against any and all liability, claims, lawsuits,

    losses,
damages, costs or expenses (including documented attorneys' fees), which the
INDEMNIFIED PERSONS may hereafter incur, suffer or be required to pay as a
result of SPONSOR'S use of the results of SPONSORED RESEARCH or any PENN
INTELLECTUAL PROPERTY or as a result any breach of this AGREEMENT or any
wrongful act or omission of SPONSOR, its employees, affiliates, contractors,
licensees or agents.  PENN shall notify SPONSOR upon learning of the
institution or threatened institution of any such liability, claims, lawsuits,
losses, damages, costs and expenses and PENN shall cooperate with SPONSOR in
every proper way in the defense or settlement thereof at SPONSOR'S request and
expense.

     

     

    
      
         

      

      
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    ARTICLE
10.  ADDITIONAL PROVISIONS

     

    10.1 In
the event that a party to this AGREEMENT perceives the existence of a dispute
with the other party concerning any right or duty provided for herein, the
parties shall, as soon as practicable, confer in an attempt to resolve the
dispute.  In the event that resolution of the dispute is not
forthcoming, the parties shall consult with a view toward submitting the dispute
to mediation or arbitration under mutually acceptable terms.  There is
no enforceable obligation to enter into mediation or arbitration conferred by
this paragraph.

     

    10.2 No
rights hereunder may be assigned by SPONSOR, directly or by merger or other
operation of law, except in a manner consistent with the terms of the LICENSE
AGREEMENT limiting such assignments.  Any prohibited assignment of
this AGREEMENT or the rights hereunder shall be null and void.  No
assignment shall relieve SPONSOR of responsibility for the performance of any
accrued obligations which it has prior to such assignment.  This
AGREEMENT shall inure to the benefit of permitted assigns of
SPONSOR.

     

    10.3 A
waiver by either party of a breach or violation of any provision of this
AGREEMENT will not constitute or be construed as a waiver of any subsequent
breach or violation of that provision or as a waiver of any breach or violation
of any other provision of this AGREEMENT.

     

    10.4
Nothing herein shall be deemed to establish a relationship of principal and
agent between PENN and SPONSOR, nor any of their agents or employees for any
purpose whatsoever.  This AGREEMENT shall not be construed as
constituting PENN and SPONSOR as partners, or as creating any other form of
legal association or arrangement which would impose liability upon one party for
the act or failure to act of the other party.

     

    10.5
Notices, payments, statements, reports and other communications under this
AGREEMENT shall be writing and shall be deemed to have been received as of the
date dispatched if sent by public courier (e.g. Federal Express) or by express
mail, return receipt requested and addressed as follows:

     

    If to
PENN:

     

    Office of
Research Administration

    University
of Pennsylvania

    133 South
36th Street, Suite 300

    Philadelphia,
PA 19104-3246

    Attn:   Executive
Director

     

     

    
      
         

      

      
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      Office of
General Counsel

       221
College Hall

      University
of Pennsylvania

      Philadelphia,
PA 19104-6303

      Attn:
General Counsel

    

     

    If to
SPONSOR:

     

    Tensiodyne
Corporation

    11835
West Olympic Boulevard

    East Tower,
Suite 705

    West Los
Angeles, California 90064

     

    cc:  Stephen
M. Goodman, Esquire

          
Wolf,
Block, Schorr and Solis-Cohen

          
12th
Floor Packard Building

          
S.E. Cor.
15th & Chestnut Streets

          
Philadelphia,
PA 19102-2678

     

    10.6 This
AGREEMENT embodies the entire understanding between the parties relating to the
subject matter hereof and supersedes all prior understandings and agreements,
whether written or oral.  This AGREEMENT may not be varied except by a
written document signed by duly authorized representatives of both
parties.

     

    10.7 Any
of the provisions of this AGREEMENT which are determined to be invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability in such jurisdiction, without rendering invalid
or unenforceable the remaining provisions hereof or affecting the validity or
unenforceability of any of the terms of this AGREEMENT in any other
jurisdiction.

     

    10.8 The
headings and captions used in this AGREEMENT are for convenience of reference
only and shall not affect its construction or interpretation.

     

    10.9
Nothing in this AGREEMENT, express or implied, is intended to confer on any
person other than the parties hereto or their permitted assigns, any benefits,
rights or remedies.

     

    10.10
This AGREEMENT shall be construed and governed in accordance with the laws of
the Commonwealth of Pennsylvania, without giving effect to conflict of law
provisions.

     

     

    
      
         

      

      
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    10.11
PENN and SPONSOR shall not discriminate against any employee or applicant for
employment because of race, color, sex, sexual or affectional preference, age,
religion, national or ethnic origin, or handicap.

     

    10.12
Neither party shall be liable for any failure to perform as required by this
AGREEMENT to the extent such failure to perform is due to circumstances
reasonably beyond such party's control, including, without limitation, labor
disturbances or labor disputes of any kind, accidents, failure of any
governmental approval required for full performance, civil disorders or
commotions, acts of aggression, acts of God, energy or other conservation
measures imposed by law or regulation, explosions, failure of utilities,
mechanical breakdowns, material shortages, disease, or other such
occurrences.

     

    10.13 All
rights granted to SPONSOR by this AGREEMENT are contingent upon compliance with
United States laws and regulations controlling the export of technical data,
computer software, laboratory prototypes, and all other export controlled
commodities.  These laws include, but are not limited to, the Arms
Export Control Act and the Export Administration Act as they may be amended.
SPONSOR shall not, directly or indirectly, export any export controlled
commodities, which are subject to this AGREEMENT, unless the required
authorization and/or license is obtained from the proper government agency(ies)
prior to export.  By granting rights in this AGREEMENT, PENN does not
represent that export authorization or an export license will not be necessary
or, if necessary, that such authorization or export license will be
granted.

     

    IN
WITNESS WHEREOF, the duly authorized representatives of the parties hereby
execute this AGREEMENT as of the date first written above.

     

     

    
      
        	
                THE
      TRUSTEES OF THE

                UNIVERSITY
      OF PENNSYLVANIA

              	 	 	[SPONSOR]	 
	 	 	 	 	 
	
                By: /s/
      Stephen M.
      Sammut                                      
      

              	 	 	
                By: /s/
      Robert M.
      Bernstein                                
      

              	 
	 	 	 	 	 
	
                Name:   Stephen
      M.
      Sammut                                    
      

              	 	 	
                Name:  Robert
      M.
      Bernstein                               
      

              	 
	 	 	 	 	 
	
                Title:  Managing
      Director                                         
      

              	 	 	
                Title: PRES.                                                           
      

              	 
	 	 	 	 	 
	Date: August
      26,
      1993                                              
      	 	 	Date:  9/9/93                                                          
      	 
	 	 	 	 	 


      

    

     

     

    (signatures
continued on next page)

     

     

    
      
         

      

      
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    Acknowledged
and Agreed to by

    PRINCIPAL
INVESTIGATOR:

     

    By: /s/
Campbell
Laird                     


     

    Date: Aug
31,
93                              


     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
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    Attachment
A

     

    Summary
of SPONSORED RESEARCH

     

    Work
Scope

     

    1)   Details
of Program - See Attachment B

     

    PRINCIPAL
INVESTIGATOR Campbell Laird

     

    Representative
of SPONSOR

     

    1)   Name:
Robert M. Bernstein

     

    2)   Phone
Number: (310) 208-5589

     

    Period of
Performance August 1, 1993 to July 31, 1995

     

    Report
Schedule Every sixty (60) days

     

    Final
report within thirty (30) days after termination

     

    Budget:  See
Attachment C

     

     

     

     

     

     

     

     

    
      
         

      

      
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