Unassociated Document


    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.

     

    
      
        
        

      

      
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    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 neither an Insolvency
      Proceeding
      nor 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, then the License Agreement shall automatically
      be terminated as provided for in this Termination Agreement without any
further
      action by the Licensor or the Licensee. The Licensee agrees that during the
      Waiting
      Period, unless an Insolvency Proceeding or Avoidance Proceeding occurs during
      such
      Waiting Period, it shall not (i) exercise any of the rights granted to it
      pursuant to Sections 2.1, 7.1 or 7.2 of the License Agreement, or (ii) assign,
      transfer or encumber in any
      manner, in whole or in part, any rights to the Licensed IP. For purposes of
      this
Section,
      "Insolvency Proceeding" shall mean any case or proceeding commenced by or
      against Licensor under any provision or chapter of the United States Bankruptcy
      Code, as it may be amended from time to time, or any other federal, state or
      foreign law providing for
      bankruptcy, dissolution, insolvency, liquidation, receivership, rehabilitation,
      reorganization,
      or winding up of a debtor or the assets and liabilities of a debtor or for
      the
administration,
      adjustment, arrangement, compromise, composition, extension, moratorium,
      reorganization, restructuring, settlement or similar relief of debts of a debtor
      generally
      with or for the benefit of its creditors, including without limitation (x)
      an
assignment
      for the benefit of creditors, (y) a proceeding seeking the appointment of a
      receiver,
      liquidator, assignee, trustee, conservator, custodian, fiduciary, sequestrator
      or other
      similar official, and (z) any formal or informal debt moratoria, whether or
      not
      an order
      for
      relief has been entered in any involuntary bankruptcy case or other proceeding,
      whether or not the proceeding is voluntary or involuntary, whether or not the
      proceeding is
      commenced by or against the debtor, and whether or not the proceeding is
      judicial, administrative,
      statutory, or private. For purposes of this Section, "Avoidance Proceeding"
      shall mean any proceeding, whether as part of an Insolvency Proceeding
      or otherwise,
      in which the Note, the Security Agreement, the License Agreement, or the
rights
      or
      interests of Licensee under the Note, the Security Agreement, or the License
      Agreement are or could be challenged, avoided or set aside.

     

    
      
        
        

      

      
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    4. Effect
      of Termination. Notwithstanding anything in the License Agreement to
      the contrary, including Sections 4.2(b), (c), (d) and (f) of the License
      Agreement, (i) only Sections 4.2(a) and 6 of the License Agreement shall survive
      the termination of the License Agreement pursuant hereto and continue to be
      effective, (ii) the Licensor acknowledges that the Licensee continues to have
      rights under Section 2.2 of the License Agreement with respect to elements
      of
      Derivative Works that were developed or created by or for Licensee prior to
      the
      Effective Date, and (iii) Licensee agrees that Licensor retains all of its
      intellectual property rights and terminates Licensee's rights with respect
      to
      the Licensed IP that may be incorporated into such Derivative
      Works.

    


    5. Deliverables. The
      Licensor and the Licensee each hereby agree to use reasonable
      efforts to promptly return to the other party all Confidential Information
      belonging
      to the other party to the extent such party is aware of the existence of such
      Confidential
      Information and is able to locate it. The Licensee further agrees to use
reasonable
      efforts to promptly return all Deliverables previously provided by the
Licensor
      to the Licensee to the extent Licensee is aware of the existence of such
Deliverables
      and is able to locate such Deliverables. Notwithstanding the foregoing, to
      the
      extent the Licensee is not able to locate or return such Deliverables, except
      with the prior written consent of the Licensor or pursuant to legal process,
      the
      Licensee agrees not to use, disclose or convey to any third party the
      Deliverables previously provided by the Licensor
      to the Licensee.

    


    6. No
      Assignment or Sublicense. The
      Licensee represents and warrants to the
      Licensor that it has not heretofore assigned, transferred, sold or sublicensed
      to any person
      or
      entity any of the Licensed IP.

    


    7. Further
      Assurances. Each
      of
      the Licensor and Licensee agree to do such further
      acts and things and to execute and deliver such additional agreements, powers
      and instruments
      as the other may reasonably request to carry into effect the terms, provisions
      and purposes of this Termination Agreement or to better assure and confirm
      their
respective
      rights hereunder.

    


    8.
      Binding
      Agreement, Assignments. This
      Termination Agreement, and the terms,
      covenants and conditions hereof, shall be binding upon and inure to the benefit
      of the
      parties hereto and their respective successors and permitted
      assigns.

    


    9. GOVERNING
      LAW AND CONSENT TO JURISDICTION. THE
      VALIDITY,
      CONSTRUCTION AND EFFECT OF THIS TERMINATION AGREEMENT SHALL BE GOVERNED BY
      THE
      LAWS OF THE STATE OF CALIFORNIA.

    

 

    
      
        
        

      

      
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    10.
      Costs
      and Expenses. Each
      party hereto shall bear their own attorneys' fees,
      costs, and expenses in connection with the negotiation for and preparation
      of
      this Termination
      Agreement, and the completion of the termination as herein
      provided.

     

    11. Authority. Each
      of
      the Licensor and Licensee represents and warrants that it
      is
      fully authorized to enter into this Termination Agreement and to carry out
      the
obligations
      provided for herein.

    


    12. Counterparts. This
      Termination Agreement may be executed in two or more
      counterparts, each of which shall constitute an original, but all of which,
      when
taken
      together, shall constitute but one instrument.

    


    13. Entire
      Agreement; Amendments,. This
      Termination Agreement constitutes the
      entire agreement of the parties concerning the subject matter hereof,
      superseding all prior
      and
      contemporaneous proposals, negotiations, communications and agreements, written
      or oral, with respect to the subject matter of this Termination
      Agreement.

    


    IN
      WITNESS WHEREOF, the parties have caused this Termination Agreement to
      be
      executed by their duly authorized representatives.

    


    
      	 	 	 
	 	Licensor
	 	 
	 	
              QUINTESSENCE
                PHOTONICS CORPORATION

            
	 
 	 
 	 
 
	 	By:  	
              /s/ George
                Lintz           
                

            
	 	Name:
              George Lintz
	 	
              Title:
                CFO

            


    

     

    
      	 	 	 
	 	Licensee:
	 	 
	 	
              FINISAR
                CORPORATION

            
	 
 	 
 	 
 
	 	By:  	
              /s/ S.K.
                Workman        

            
	 	Name:
              S.K. Workman 
	 	Title:
              CFO


    

     

    
      
        
        

      

      
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