Exhibit 10.48 Technology Asset Purchase Agreement

Exhibit
    10.48

    TECHNOLOGY
      ASSET PURCHASE AGREEMENT

     

    THIS
      TECHNOLOGY ASSET PURCHASE AGREEMENT (this “Agreement”)
      is
      made as of June 15, 2006 by and among Cabot
      Microelectronics Corporation, a Delaware Corporation having a place of business
      at 870 N. Commons Drive, Aurora, Illinois 60504 (“CMC”
or
      the
“Parent”),
      QED
      Technologies International, Inc., a Delaware corporation having a place of
      business at 870 N. Commons Drive, Aurora, Illinois 60504 (the “Purchaser”),
      and
      Byelocorp Scientific, Inc., a New York corporation having a place of business
      at
      70 Pine Street, New York, New York 10270 (“BSI”
or
      the
“Seller”).

     

    RECITALS

     

    WHEREAS,
      BSI owns certain technology and certain rights to that technology, including
      patents solely owned by BSI (the “BSI
      Patents”)
      and
      other patents co-owned by BSI and the University of Rochester (“Rochester”)
      (the
“BSI/Rochester
      Patents”),
      that
      relate to shape forming, finishing, polishing and metrology of optical elements
      and other work pieces including magnetorheological methods, devices, fluids,
      compositions and related deterministic surface finishing processes (the
“Technology”);

     

    WHEREAS,
      BSI also has an exclusive license under Rochester’s ownership interest in the
      BSI/Rochester Patents, pursuant to an Exclusive License Agreement between BSI
      and Rochester, dated June 12, 2006 (the “BSI/Rochester
      Exclusive License”);
      

     

    WHEREAS,
      BSI has granted MR Finishing Systems, LLC, the predecessor to QED Technologies,
      Inc., a New York corporation (“QED”),
      an
      exclusive license under the BSI Patents and under BSI’s ownership interest in
      the BSI/Rochester Patents, pursuant to a License Agreement, dated July 25,
      1996
      (the “BSI/QED
      Exclusive License”);
      

     

    WHEREAS,
      QED, Purchaser, CMC, Don Golini (“Golini”)
      and
      Lowell Mintz (“Mintz”
and,
      together with Golini, the “QED
      Shareholders”)
      have
      entered into an Asset Purchase Agreement, dated June 14, 2006 (the “Asset
      Purchase Agreement”),
      pursuant to which QED is selling to the Purchaser and the Purchaser is acquiring
      from QED, substantially all of the assets of QED (the “Asset
      Purchase Transaction”);

     

    WHEREAS,
      the BSI/QED Exclusive License will be terminated on the Closing Date
      simultaneous with the Asset Purchase Transaction;

     

    WHEREAS,
      Mintz and certain members, and trusts for the benefit of members, of Mintz’s
      family own 100% of the capital stock and all voting and equity interests in
      BSI,
      and, pursuant to voting trust agreements, Mintz has the exclusive right to
      vote
      100% of the voting interests of BSI; 

     

    WHEREAS,
      Mintz and certain members, and trusts for the benefit of members, of Mintz’s
      family own 50% of the Class A Common Stock of QED and 50% of the voting
      interests in QED; and

     

    WHEREAS,
      as part of the Asset Purchase Transaction and simultaneously with the Closing
      thereunder, the Seller desires to sell and transfer to the Purchaser, and the
      Purchaser desires to acquire from the Seller, certain assets used in or relating
      to the Technology, including the BSI Patents, BSI’s ownership interest in the
      BSI/Rochester Patents, and BSI’s rights and obligations under the BSI/Rochester
      Exclusive License.

     

    NOW,
      THEREFORE, in consideration of the foregoing and the mutual covenants,
      representations and warranties contained in this Agreement, and for other good
      and valuable consideration, the receipt and sufficiency of which are hereby
      acknowledged, the Purchaser and the Seller hereby agree as follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ARTICLE
      I  

     

    DEFINITIONS

     

    Section
      1.01  Specific
      Definitions.
      As used
      in this Agreement, "Scheduled
      Intellectual Property"
      means:
      (i) all patents and patent applications, together with any patents that may
      issue based thereon, which are listed on Exhibit
      A
      attached
      hereto (including the BSI Patents and the BSI/Rochester Patents), and all
      priority applications or patents and continuing applications or patents,
      reissues, re-examinations and renewals thereof; (ii) all foreign applications
      based on the foregoing referenced U.S. patents and patent applications, together
      with all patents which may issue based thereon, which are also listed on
Exhibit
      A
      attached
      hereto; (iii) copyrights, trademarks and service marks which are applicable
      to,
      or utilized in connection with the Technology and which are listed on
Exhibit
      B
      attached
      hereto; and (iv) all confidential business information, financial, marketing
      and
      business data, databases, know-how, trade secrets, formulas, inventions,
      invention disclosures, discoveries, ideas, data, processes, drawings, and
      designs now owned or controlled by the Seller which are related to the matters
      referenced in the foregoing clauses (i), (ii) and (iii). 

     

    Section
      1.02  Definitional
      Provisions.
      The
      words "hereof," "herein," and "hereunder" and words of similar import, when
      used
      in this Agreement, shall refer to this Agreement as a whole and not to any
      particular provisions of this Agreement. Terms defined in the singular shall
      have a comparable meaning when used in the plural, and vice-versa. 

     

    ARTICLE
      II  

     

    SALE
      AND PURCHASE OF ASSETS

     

    Section
      2.01  Purchased
      Assets.
      Subject
      to and upon the terms and conditions of this Agreement, and in reliance upon
      the
      representations, warranties, covenants and agreements made in this Agreement
      by
      the Seller at the Closing on the Closing Date (as defined in Section 5.01 of
      this Agreement), the Purchaser shall purchase and accept from the Seller, and
      the Seller shall sell, transfer, convey, assign and deliver to the Purchaser,
      free and clear of all liens, claims, encumbrances or other right (subject to
      (a)
      Rochester’s right, title and interest in and to the BSI/Rochester Patents
      (subject to the BSI/Rochester Exclusive License), (b) any statutory or
      regulatory right or interest of the U.S. Government in or to Rochester’s right,
      title and interest in and to the BSI/Rochester Patents, (c) Rochester’s rights
      and interests under the BSI/Rochester Exclusive License (a copy of which is
      attached as Exhibit
      C
      to this
      Agreement), including, without limitation, Rochester’s nonexclusive limited
      license under the BSI/Rochester Patents and certain of the issued U.S. BSI
      Patents (collectively, the “IP
      Encumbrances”),
      (d)
      QED’s rights and interests under the BSI/QED Exclusive License (which will be
      terminated on the Closing Date simultaneous with the Asset Purchase Transaction)
      and (e) Permitted Encumbrances (as defined in the Asset Purchase Agreement,
      but
      excluding encumbrances set forth on Part 3.9 of the Disclosure Letter delivered
      by QED in connection with the Asset Purchase Agreement)), all of the Seller’s
      right, title and interest in and to all of its assets and properties used in
      or
      relating to the Technology (collectively, the “Purchased
      Assets”),
      including, without limitation, on a worldwide basis: (a) the Seller’s entire
      right, title and interest in and to all of the Scheduled Intellectual Property,
      including the BSI/Rochester Exclusive License; (b) all goodwill associated
      with
      any of the foregoing; and (c) all other intellectual property of the Seller
      which is related to the Technology wheresoever located and whether or not called
      or reflected on the books, records and financial statements of the Seller ;
      provided, however, that the name Byelocorp Scientific and variations thereof
      and
      derivations therefrom shall be excluded from the Purchased Assets. 

     

    Section
      2.02  Past
      Infringement.
      The
      Seller further grants, conveys and assigns to Purchaser, without representation
      or warranty of any kind or nature except as expressly set forth herein, all
      of
      its 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
right,
        title and interest in and to any and all causes of action, rights of recovery
        and releases related to past infringement of any of the Scheduled Intellectual
        Property and/or any Purchased Asset.

    

     

    Section
      2.03  Approvals
      and Consents.
      The
      Seller will obtain all necessary third party consents, assignments, releases
      of
      liens or other approvals which may be necessary on the part of the Seller to
      consummate the sale of Purchased Assets to Purchaser pursuant to this
      Agreement.

     

    Section
      2.04  Additional
      Obligations.

     

    (a)
       File
      Transfer.
      Within
      fifteen (15) calendar days following the Closing Date, the Seller will provide
      Purchaser with all original prosecution files relating to the Scheduled
      Intellectual Property, together with all books and records relating to any
      patent royalties, licenses and other material agreements or correspondence;
      provided, however, that during the period prior to Seller’s delivery of such
      files and documents to Purchaser, Seller will take all reasonably necessary
      actions to avoid impairing in any material respect any of the Scheduled
      Intellectual Property or Purchased Assets. 

     

    (b)
       Further
      Assistance.
      From
      and after the Closing, the Seller shall provide continuing reasonable
      cooperation and support to Purchaser with respect to the Purchased Assets,
      including, by way of example and not limitation, the following: (i) executing
      documents prepared by Purchaser necessary for recordation, prosecution,
      maintenance, and litigation of the Scheduled Intellectual Property; (ii)
      utilizing commercially reasonable efforts to cause the inventors and other
      relevant persons employed or formerly employed by the Seller to be reasonably
      available to Purchaser or its counsel for interviews and/or testimony to assist
      in good faith in further prosecution, maintenance or litigation of the Scheduled
      Intellectual Property, including, but not limited to, the signing of documents
      related thereto; (iii) forwarding copies of all correspondence sent and received
      concerning the Scheduled Intellectual Property as promptly as possible after
      receipt by the Seller; and (iv) making all relevant documents in the possession
      or control of the Seller and corresponding to the Scheduled Intellectual
      Property, or any licenses thereunder, available to Purchaser or its counsel.
      Any
      actual out-of-pocket expenses associated with any such assistance shall be
      borne
      by Purchaser, expressly excluding the value of the work time by the Seller
      and
      the Seller’s employees; provided, however, that in the case of assistance with
      litigation, the parties shall agree on a case-by-case basis on compensation,
      if
      any, of the Seller for the value of the work time of the Seller as reasonably
      required in connection with such litigation.

     

    ARTICLE
      III  

     

    CONSIDERATION

     

    Section
      3.01  Purchase
      Price.
      Subject
      to the terms and conditions contained herein, the Purchaser agrees to pay to the
      Seller, and the Seller agrees to accept from the Purchaser as the aggregate
      purchase price for the Purchased Assets and the other covenants and agreements
      of the Seller contained or referred to herein (including the Seller’s
      non-compete covenants), the sum of two million, two hundred and twenty-five
      thousand dollars ($2,225,000) in cash (the "Purchase
      Price").

     

    Section
      3.02  Payment
      of Purchase Price.
      At the
      Closing on the Closing Date, the Purchaser shall pay to the Seller by wire
      transfer of immediately available funds to the account at a bank specified
      by
      the Seller in writing no less than two (2) business days prior to the Closing
      Date, an aggregate amount equal to the Purchase Price.

     

    Section
      3.03  Allocation
      of Purchase Price.
      The
      Purchase Price shall be allocated among the Purchased Assets and the non-compete
      covenant set forth in Section 6.01 as set forth in Schedule 3.03 of this
      Agreement. The Purchaser and the Seller agree to file all required tax reports
      and returns reflecting the transactions contemplated herein consistent with
      such
      allocation.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      3.04  Payment
      Guarantee by CMC.
      Notwithstanding anything in this Agreement, CMC unconditionally guarantees
      Purchaser’s monetary liabilities and monetary obligations under this Agreement,
      including without limitation (a) the monetary liabilities and monetary
      obligations of BSI in the BSI/Rochester Exclusive License after the Closing
      Date, which monetary liabilities and monetary obligations the Purchaser agrees
      to assume and become liable for pursuant to Section 4.01 of this Agreement,
      and
      (b) the monetary liability and monetary obligation of the Purchaser to make
      the
      payment of the Purchase Price to the Seller pursuant to Section 3.01 and Section
      3.02 of this Agreement. 

     

    ARTICLE
      IV  

     

    NONASSUMPTION
      OF LIABILITIES

     

    Section
      4.01  Non-assumption
      of Liabilities.
      Except
      for all of the liabilities and obligations of BSI in the BSI/Rochester Exclusive
      License after the Closing Date (other than any liabilities and obligations
      arising from the breach or noncompliance by BSI with the BSI/Rochester Exclusive
      License prior to the Closing Date or the nonpayment of the License Price
      thereunder), which liabilities and obligations the Purchaser hereby agrees
      to
      assume and become liable for, and except for the other liabilities and
      obligations of the Purchaser pursuant to this Agreement, the Purchaser shall
      not
      assume, or in any way become liable for, any liabilities or obligations of
      the
      Seller, of any kind or nature, whether accrued, absolute, contingent or
      otherwise, or whether due or to become due, or otherwise, arising out of events
      or transactions or facts which shall have occurred on or prior to or, only
      with
      respect to the Purchased Assets, subsequent to the Closing Date (collectively,
      the “Excluded
      Assets”).
      The
      Excluded Assets shall include, without limitation: (a) 50% of all transfer,
      sales, purchase, use, value added, excise or similar tax imposed under the
      laws
      of the United States, or any other state or political subdivision thereof,
      which
      arises out of the transfer of the Purchased Assets; (b) any liability or
      obligation arising out of any claim, action, suit or proceeding pending as
      of
      the Closing Date or any subsequent claim, action, suit or proceeding arising
      out
      of or relating to matters or events occurring, or with respect to the manner
      in
      which the Seller owned or used the Technology, on or prior to the Closing Date;
      (c) any liability or obligation relating to the ownership, development or
      use of the Technology by the Seller on or prior to the Closing Date; (d) any
      liability or obligation arising out of or relating to assets owned or leased
      by
      the Seller on, prior or after the Closing Date (other than with respect to
      the
      BSI/Rochester Exclusive License after the Closing Date); (e) any liability
      or obligation of the Seller with respect to a collective bargaining agreement
      or
      any employee benefit or incentive plan, agreement or arrangement; (f) any
      liability of the Seller or its affiliates for any federal, state, local or
      foreign income taxes, or any non-accrued payroll, sales, property or other
      taxes
      (including, without limitation, those yet to be assessed or payable) for any
      periods prior to or, other than with respect to the Purchased Assets, subsequent
      to the Closing Date including, without limitation, all monies or trust fund
      taxes required to be withheld by the Seller from employees employed by the
      Seller; (g) the fees, costs and expenses of any person, firm, corporation
      or other entity acting on behalf of, or representing the Seller as broker,
      finder, investment banker, financial advisor, accountant, attorney or in any
      similar capacity; (h) any debt, obligation or liability of the Seller for
      money borrowed; (i) any liability or obligation resulting from a breach
      caused by the Seller at any time before or after the Closing of any agreement,
      contract, commitment, license or lease; (j) any liability, obligation, fine
      or penalty of any kind resulting from and relating to the Seller’s violation of
      applicable laws or failure to have, maintain or comply with the terms of any
      required permits, licenses, certificates or other authorizations required under
      applicable law; (k) any liability or obligation relating to investigation,
      remediation or otherwise with respect to hazardous materials including, without
      limitation, all liabilities and obligations with respect to handling, removal,
      transport, treatment, storage and disposal of hazardous materials, to any
      location, in each case, occurring prior to or after the Closing Date; and/or
      (l) future performance obligations of the Seller in respect of outstanding
      leases, contracts, licenses, sales orders and purchase orders (other than
      pursuant to the BSI/Rochester Exclusive License).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ARTICLE
      V  

     

    CLOSING

     

    Section
      5.01  Closing
      and Closing Date.
      The
      closing of the transactions contemplated by this Agreement (“Closing”)
      shall
      take place at the offices of the Purchaser simultaneously with the “Closing”
under the Asset Purchase Agreement, anticipated to occur commencing at 10 a.m.,
      Chicago time on July 6, 2006 or such other date as the parties to the Asset
      Purchase Agreement may mutually agree (the date on which the Closing is to
      take
      place being herein sometimes referred to as the “Closing
      Date”).
      Notwithstanding the foregoing, this Agreement shall automatically terminate
      and
      be null and void and of no force or effect if the transactions contemplated
      under Asset Purchase Agreement do not close on or before September 15,
      2006.

     

    Section
      5.02  Closing
      Deliveries.
      At the
      Closing on the Closing Date, (A) the Seller shall deliver to the Purchaser
      fully
      executed copies of the following: (a) all such bills of sale, assignments
      of all intellectual property related to or arising from the Technology, contract
      assignments and other documents and instruments of sale, assignment, conveyance
      and transfer, necessary to sell and transfer the Purchased Assets to the
      Purchaser; (b) the articles of incorporation for BSI, certified by the Secretary
      of State of the State of New York as of a date within one (1) week prior to
      Closing; (c) certificates of good standing for BSI from the State of New York
      and any other state where BSI is required to be qualified to transact business
      as a foreign corporation, issued within one (1) week prior to Closing; (d)
      a
      copy of BSI's by-laws, as certified by its Secretary; (e) a certified copy
      of
      minutes (or the unanimous written consent) of the Board of Directors of BSI
      authorizing and approving the execution, delivery and performance of this
      Agreement and the consummation of the transactions contemplated hereby; (f)
      the
      opinion of Withers Bergman LLP, special counsel for the Seller, in form and
      substance reasonably satisfactory to the Purchaser; (g) any and all UCC-3
      termination statements or other documents needed to release any liens on the
      Purchased Assets; (h) a docket identifying all prosecution and maintenance
      fee
      events due within 90 days after the Closing Date with respect to the Scheduled
      Intellectual Property; and (i) such other documents as the Purchaser may
      reasonably request to carry out the purposes of this Agreement; (B)
      the
      Purchaser shall deliver to the Seller: (i)
      the
      Purchase Price, by wire transfer to an account specified by the Seller in
      writing; (ii)
      a
      certified copy of minutes of the Boards of Directors of the Purchaser
      authorizing and approving the execution, delivery and performance by the
      Purchaser of this Agreement and the consummation by the Purchaser of the
      transactions contemplated hereby; (iii)
      such documents of assignment and assumption with respect to the BSI/Rochester
      Exclusive License as the Seller may reasonably request; and (iv)
      such
      other documents as the Seller may reasonably request to carry out the purposes
      of this Agreement;
      and (C)
      CMC shall deliver to the Seller: (i) a Secretary’s Certificate of CMC confirming
      authorization and approval of the execution, delivery and performance by CMC
      of
      this Agreement and the consummation of the transactions contemplated hereby;
      and
      (ii) such other documents as the Seller may reasonably request to carry out
      the
      purposes of this Agreement.

     

    ARTICLE
      VI  

     

    ADDITIONAL
      COVENANTS AND AGREEMENTS OF THE SELLER

     

    Section
      6.01  Noncompetition,
      Nonsolicitation and Nondisparagement

     

    (a) Noncompetition.
      For a period of five (5) years after the Closing Date (the "Period"),
      Seller shall not, without the prior written consent of the Chairman of the
      Purchaser’s board of directors, or the President of CMC, participate or engage
      in, directly or indirectly (as an owner, shareholder (other than passive
      ownership of up to two percent (2%) of the outstanding stock of any class that
      is publicly traded), partner, independent contractor, consultant, advisor or
      in
      any other capacity calling for the rendition of services, advice, or acts of
      management, operation or control), any business that, during the Period, is
      competitive with the Purchased Assets sold by Seller to Purchaser hereunder
      or


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
is
        competitive with the Business Conducted by Buyer and/or CMC (as defined in
        the
        Asset Purchase Agreement) within the United States, France, the United Kingdom,
        the Netherlands, Germany, Italy, Japan, Taiwan, the People’s Republic of China,
        Korea, Malaysia, and Singapore.

    

     

    (b) Nonsolicitation.
      During the Period, Seller shall not, directly or indirectly:

     

    (i) cause,
      induce or attempt to cause or induce any customer, supplier, licensee, licensor,
      employee, consultant or other business relation of Purchaser or CMC to cease
      doing business with Purchaser or CMC, to deal with any competitor of Purchaser
      or CMC or in any way interfere with its relationship with Purchaser or CMC
      with
      respect to businesses conducted by the Purchaser or CMC as of the
      Closing;

     

    (ii) cause,
      induce or attempt to cause or induce any customer, supplier, licensee, licensor,
      employee, consultant or other business relation of Seller on the Closing Date
      or
      within the year preceding the Closing Date to cease doing business with
      Purchaser or CMC, to deal with any competitor of Purchaser or CMC or in any
      way
      interfere with its relationship with Purchaser or CMC; or

     

    (iii) hire,
      retain or attempt to hire or retain any employee or independent contractor
      of
      Purchaser or CMC or in any way interfere with the relationship between Purchaser
      or CMC and any of its respective employees or independent contractors. For
      purposes of clarity, Purchaser in this Section 6.01(b) includes the employees
      and contractors of QED up to and including the Closing Date, as well as those
      retained by Purchaser during the Period.

     

    (c) Nondisparagement.
      After the Closing Date, none of the parties hereto will disparage any other
      party hereto or such party’s shareholders, directors, officers, employees or
      agents publicly or to any third party, other than in connection with any
      Proceeding (as defined in the Asset Purchase Agreement).

     

    (d) Modification
      of Covenant. If a final judgment of a court or tribunal of competent
      jurisdiction determines that any term or provision contained in Section 6.01(a)
      through (c) is invalid or unenforceable, then the parties agree that the court
      or tribunal will have the power to reduce the scope, duration or geographic
      area
      of the term or provision, to delete specific words or phrases or to replace
      any
      invalid or unenforceable term or provision with a term or provision that is
      valid and enforceable and that comes closest to expressing the intention of
      the
      invalid or unenforceable term or provision. This Section 6.01 will be
      enforceable as so modified after the expiration of the time within which the
      judgment may be appealed. Seller expressly agrees that this Section 6.01 is
      reasonable and necessary to protect and preserve Purchaser's legitimate business
      interests and the value of the Purchased Assets and to prevent any unfair
      advantage conferred on Seller.

    


    Section
      6.02  Additional
      Agreements.
      At
      Closing, the Seller shall execute all such bills of sale, trademark assignments,
      copyright assignments, patent assignments, contract assignments and other
      documents and instruments of sale, assignment, conveyance and transfer, as
      Purchaser or its counsel may deem reasonably necessary to effect the transfer
      of
      the Purchased Assets to Purchaser (including, but not limited to, evidence
      satisfactory to Purchaser that the BSI/QED Exclusive License and any and all
      liens on the Purchased Assets (other than Permitted Encumbrances and IP
      Encumbrances) have been released or terminated). 

     

    Section
      6.03  Further
      Assurances.
      The
      Seller shall, on request of the Purchaser, on and after the Closing Date,
      cooperate by furnishing any additional information, executing and delivering
      any
      additional documents and/or instruments and doing any and all such other things
      as may be reasonably required by the Purchaser or its counsel to consummate
      or
      otherwise implement the transactions contemplated by this Agreement; provided,
      however, that Purchaser will reimburse any such cooperation 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
required
        by the Seller that incurs actual out-of-pocket costs above and beyond costs
        incurred in the use of Seller’s own resources, such as employee
        time.

    

     

    Section
      6.04  Taxes.
      From
      and after the Closing, the Seller agrees to indemnify the Purchaser for all
      taxes attributable to the ownership of the Purchased Assets for all taxable
      periods (or portions thereof) ending on or before the Closing Date
      ("Pre-Closing
      Taxes").
      From
      and after the Closing, the Purchaser agrees to indemnify the Seller for all
      such
      taxes for all taxable periods commencing on the Closing Date. From and after
      the
      Closing, Taxes which are personal property taxes shall be allocated to the
      Pre-Closing Taxes based on the number of days in the taxable period (or portion
      thereof) ending on or before the Closing Date.

     

    Section
      6.05  Patent
      Maintenance Fees.
      At
      Closing, the Purchaser agrees to pay the Seller for all patent maintenance fees
      attributable to the patents and patent applications listed on Exhibit A of
      this
      Agreement only for all periods (or portions thereof) commencing on or after
      the
      Closing Date, but not for any periods (or portions thereof) occurring prior
      to
      the Closing Date, to the extent the Seller has paid any such fees on or before
      the Closing Date, as set forth in more detail on Schedule
      6.05
      of this
      Agreement, as such schedule shall be updated by Seller and delivered to
      Purchaser at Closing.

     

    ARTICLE
      VII  

     

    CONDITIONS
      PRECEDENT TO OBLIGATIONS

     

    The
      obligations of the Seller, CMC and the Purchaser to consummate the purchase
      and
      sale of the Purchased Assets and the other transactions contemplated hereby
      are
      subject to the satisfaction of the following conditions at or prior to the
      Closing Date:

     

    Section
      7.01  Consents
      and Filings.
      All
      consents of third parties required on the part of the Seller or the Purchaser
      or
      CMC for the consummation of the transactions contemplated hereby shall have
      been
      duly obtained or effected, including, without limitation, any consents required
      by any federal, state, local or foreign government.

     

    Section
      7.02  Simultaneous
      Closing of Related Asset Purchase Agreement; BSI License Price; Pre-Closing
      Amendment.
      The
      Closing shall be contingent upon each of the following: (i) the simultaneous
      closing of the Asset Purchase Agreement and the transactions contemplated
      thereunder, all in accordance with the terms and conditions of the Asset
      Purchase Agreement; (ii) payment by BSI of the License Price (as defined in
      the
      BSI/Rochester Exclusive License) to Rochester pursuant to Section 3 of the
      BSI/Rochester Exclusive License on or before the Closing Date; and (iii) the
      parties entering into the Pre-Closing Amendment pursuant to Section 9.03 below
      on or before the Closing Date.

     

    Section
      7.03  No
      Adverse Proceedings.
      No
      action or proceeding before any court of governmental agency or authority shall
      be pending or threatened which questions the legality or validity of the
      transactions contemplated hereby or which may otherwise materially adversely
      affect the parties’ rights or obligations hereunder.

     

    Section
      7.04  Closing
      Deliveries.
      The
      Seller, the Purchaser and CMC shall have delivered all reports, agreements,
      certificates, instruments, opinions and other documents required to be delivered
      by the Seller or the Purchaser and CMC, as the case may be, on the Closing
      Date
      pursuant to Section
      5.02,
      and the
      form and substance of all such reports, agreements, certificates, instruments,
      opinions and other documents shall be reasonably satisfactory to the Purchaser
      and CMC or the Seller, as the case may be. 

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ARTICLE
      VIII  

     

    REPRESENTATIONS
      AND WARRANTIES

     

    Section
      8.01  Representations
      and Warranties of the Seller.
      The
      Seller represents and warrants that the following are true and
      correct:

     

    (a)  Seller
      is
      a corporation duly incorporated, validly existing and in good standing under
      the
      laws of the State of New York and is duly qualified to do business and is in
      good standing in each other jurisdiction in which the character of the business
      conducted by it or the location of the properties owned or leased by it makes
      such qualification necessary, except where the failure to be so qualified or
      in
      good standing would not, individually or in the aggregate, have a material
      adverse effect on the Seller or the Purchased Assets.

     

    (b)  The
      Seller has full power and authority to execute, deliver and perform this
      Agreement and all other documents, instruments or agreements to be executed,
      delivered and performed by it in connection herewith (the
      “Seller
      Transaction Documents”).
      The
      Seller has taken all action required by law, the articles of incorporation
      or
      bylaws of the Seller or otherwise to authorize the execution and delivery of
      the
      Seller Transaction Documents and the consummation of the transactions
      contemplated hereby and thereby.

     

    (c)  This
      Agreement and the Seller Transaction Documents constitute the valid and binding
      agreements of the Seller enforceable against it in accordance with its terms,
      except as the same may be restricted, limited or delayed by applicable
      bankruptcy, insolvency, moratorium or other similar laws affecting or relating
      to creditors' rights generally and are subject to general principles of equity.
      

     

    (d)  Subject
      to the IP Encumbrances and the Permitted Encumbrances, Seller (i) has good
      and
      marketable title to the Purchased Assets, free and clear of all liens, claims
      or
      encumbrances of any nature whatsoever; and (ii) has full right, power and
      authority to sell, assign, transfer and deliver good and marketable title to
      the
      Purchased Assets hereunder, free and clear of all liens, charges, claims,
      pledges and encumbrances whatsoever (other than as set forth above in this
      clause (d)) and conveys such title to the Purchaser.

     

    (e)  To
      the
      best of the Seller’s knowledge, the Seller is not in violation of any law, rule,
      regulation or order of the United States court, or any federal, state, municipal
      or other governmental department, commission, board, bureau, agency or
      instrumentality, wherever located whether in the United States or elsewhere
      affecting the Purchased Assets or the Technology.

     

    (f)  No
      claims, actions, suits or proceedings are pending nor commenced during the
      past
      five (5) years or to the best of the Seller’s knowledge threatened at law or in
      equity before any foreign, federal, state, municipal or other governmental
      department, commission, board, bureau, agency or instrumentality, wherever
      located whether in the United States or elsewhere, against the Seller relating
      to the Purchased Assets.

     

    (g)  (i) Exhibits
      A
      and
B
      together
      include, on a worldwide basis, all patents, copyrights, trademarks and service
      marks, and any application, renewal, extension or related right relating
      thereto, owned or used by the Seller as of the date of this Agreement and
      related to the Technology. To the best of the Seller’s knowledge, all Scheduled
      Intellectual Property, including, but not limited to, the patents, patent
      applications and registrations listed in Exhibit
      A
      and/or
      listed in Exhibit
      B
      are in
      good standing, valid and enforceable or not known by the Seller to be invalid
      or
      unenforceable, subsisting and in full force and effect in accordance with their
      terms, and paid-up with respect to maintenance fees such that no surcharges
      or
      penalty payments are required to effect maintenance fee payments. To the best
      of
      the 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
Seller’s
        knowledge, BSI has complied, and is in compliance, in all material respects,
        with all applicable laws, statutes, orders, rules, regulations and requirements
        promulgated by governmental or other authorities relating to the Scheduled
        Intellectual Property and the Seller has received no notice of any sort of
        alleged violation of any such law, statute, order, rule, regulation or
        requirement. Except as set forth in Schedule
        8.01(g)(i),
        no
        licenses, sublicenses, covenants or agreements have been granted or entered
        into
        by the Seller or any other person or entity for the Seller in respect of
        any of
        the Scheduled Intellectual Property;

    

     

    (ii)  To
      the
      best of the Seller’s knowledge, there is not now and has not been since January
      1, 2002, any infringement, misuse or misappropriation by Seller of any valid
      patent, trademark, tradename, servicemark, copyright (including, without
      limitation, any computer software, programs and licenses) or trade secret or
      other intellectual property right, that relates to the Technology and which
      is
      owned by any third party, and to the best of the Seller’s knowledge there is not
      now any existing or threatened claim against the Seller for infringement,
      misuse, or misappropriation of any such intellectual property rights used in
      connection with, or necessary for the operation of the Seller’s business
      relating to, the Technology;

     

    (iii)  There
      is
      no pending or threatened claim by the Seller (or by any stockholder on behalf
      of
      the Seller) against others for infringement, misuse or misappropriation of
      any
      of the Purchased Assets; and 

     

    (iv)  None
      of
      any director, affiliate or officer of BSI owns directly or indirectly (otherwise
      than through ownership of stock or other equity interests of BSI and of QED),
      in
      whole or in part, any of the Purchased Assets.

     

    (h)  To
      the
      best of the Seller’s knowledge, no consent, waiver, permit, approval,
      authorization or order is required by law, agreement, instrument or otherwise
      (whether oral or written) to be obtained prior to the consummation of the sale
      contemplated by this Agreement in order to transfer the Purchased Assets to
      the
      Purchaser at Closing, nor will any Purchased Assets be materially adversely
      affected or materially restricted as the result of such transfer.

     

    (i)  There
      is
      no action at law or in equity, no arbitration proceeding, and no action,
      proceeding, complaint or investigation before or by any federal, foreign, state
      or local governmental or regulatory commission, agency or other administrative
      or regulatory body or authority, pending or, to the Seller’s knowledge,
      threatened against or affecting the Technology or any of the Purchased Assets
      or
      the Seller’s right to own the Purchased Assets; and the Seller has no knowledge
      of any state of facts or contemplated events which may give rise to any such
      claim, action, suit, proceeding, complaint or investigation.

     

    (j)  To
      the
      best of the Seller’s knowledge, the Seller does not (x) own, nor has the Seller
      owned, the Technology in violation of any federal, foreign, state or local
      law,
      statute, ordinance, rule or regulation, or any court or administrative order
      or
      process, or (y) carry on or conduct, nor has Seller carried on or conducted,
      any
      of its affairs with respect to the Technology in violation of any federal,
      foreign, state or local law, statute, ordinance, rule or regulation, or any
      court or administrative order or process.

     

    (k)  There
      is
      no suit, action, proceeding, investigation, claim or order pending or, to the
      knowledge of the Seller, threatened against the Technology or against the Seller
      or to which the Seller is a party with respect to the Technology before any
      court, or before any governmental department, commission, board, agency, or
      instrumentality, nor, to the best the Seller’s knowledge, is there any
      reasonable basis for any such action, proceeding or investigation. To the best
      of the Seller’s knowledge,

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
the
        Technology is not subject to any judgment, order or decree of any court or
        governmental agency. The Seller has not received any opinion or memorandum
        or
        legal advice from legal counsel retained by the Seller to the effect that
        it is
        exposed, from a legal standpoint, to any liability which may be material
        to the
        Technology. The Seller is not engaged in any legal action with respect to
        the
        Technology to recover monies due it or for damages sustained or incurred
        by it,
        nor does Seller have any such damages due it, or sustained or incurred by
        it.
Schedule 8.01(k)
        sets
        forth a list of all litigation, claims and similar matters to which the
        Technology (or the Seller with respect to the Technology) was a party during
        the
        five (5) years preceding the date hereof, the date such litigation was commenced
        or concluded, and the nature of the resolution thereof (including amounts
        paid
        in settlement or judgment).

    

     

    (l)  The
      Seller has not employed any broker, finder or agent and has not incurred and
      will not incur any obligation or liability to any broker, finder or agent with
      respect to the transactions contemplated by this Agreement.

     

    (m)  All
      former and current employees of Seller (other than former and current
      administrative and office personnel) and independent contractors of Seller
      (other than former and current independent contractors of Seller whose duties
      do
      not and did not relate to the Technology) have executed written agreements
      with
      Seller that: (i) assign to Seller all rights to any inventions, improvements,
      discoveries, works of authorship, or information developed relating to the
      Technology, whether or not an application for patent or other intellectual
      property right has not yet been filed, and (ii) impose confidentiality
      obligations in favor of Seller as to the assigned rights described in the
      immediately preceding clause (i). No current or former employee or independent
      contractor of Seller has any interest in any Purchased Asset. Seller has paid
      to
      its respective employees and independent contractors all fees due, if any,
      for
      the assignment of such rights pursuant to individual agreements or applicable
      legal provisions.

     

    (n)  None
      of
      the representations and warranties of the Seller set forth in this Agreement,
      in
      any of the certificates, schedules, lists, documents, exhibits, or other
      instruments delivered, or to be delivered, to Purchaser as contemplated by
      any
      provision hereof (including, without limitation, the Seller Transaction
      Documents), contains any untrue statement of a material fact or omits to state
      a
      material fact necessary to make the statements contained herein or therein
      not
      misleading.

     

    Section
      8.02  Representations
      and Warranties of the Purchaser.
      The
      Purchaser and CMC each represents and warrants, jointly and severally, to the
      Seller that the following are true and correct:

     

    (a)  Each
      of
      the Purchaser and CMC is a corporation duly organized, validly existing and
      in
      good standing under the laws of the State of Delaware, and has all necessary
      corporate power to own (or hold under lease or license) its properties and
      assets and to carry on its business as now conducted, except where the failure
      to be so qualified or in good standing would not, individually or in the
      aggregate, have a material adverse effect on the Purchaser or CMC, as
      applicable.

     

    (b)  Each
      of
      the Purchaser and CMC has full power and authority to execute, deliver and
      perform this Agreement and all other documents, instruments or agreements to
      be
      executed, delivered and performed by it in connection herewith (the
“Purchaser
      Transaction Documents”)
      and
      has taken all action required by law, the charter and bylaws of the Purchaser
      or
      CMC, as the case may be, or otherwise to authorize the execution and delivery
      of
      this Agreement and the other Purchaser Transaction Documents in connection
      herewith and the consummation of the transactions contemplated hereby and
      thereby.

     

    (c)  This
      Agreement and the Purchaser Transaction Documents constitute the valid and
      binding agreements of the Purchaser and CMC, enforceable against the Purchaser
      and CMC in accordance with their respective terms, except as the same may be
      restricted, limited or delayed by 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
applicable
        bankruptcy, insolvency, moratorium or other similar laws affecting or relating
        to creditor's rights generally and are subject to general principles of
        equity.

    

     

    (d) No
      consent, waiver, permit, approval, authorization or order is required by law,
      agreement, instrument or otherwise (whether oral or written) to be obtained
      by
      the Purchaser or CMC prior to the consummation of the sale contemplated by
      this
      Agreement.

     

    ARTICLE
      IX  

     

    INDEMNIFICATION

     

    Section
      9.01  Indemnification
      and Reimbursement.
      

     

    (a)  By
      Seller. From and after the Closing Date, the Seller agrees to indemnify, defend
      and hold harmless the Purchaser and its Representatives, shareholders,
      subsidiaries and Related Persons (collectively, the “Purchaser
      Indemnified Persons”)
      after
      the Closing from and against any Damages (as defined in the Asset Purchase
      Agreement) arising out of or resulting from: (a) the untruth or inaccuracy
      of
      any representation or warranty of the Seller contained in this Agreement (or
      in
      any document, writing or certificate delivered by the Seller pursuant to this
      Agreement); (b) the failure by the Seller to perform any of its covenants or
      obligations hereunder; (c) any brokers’ commissions, finders’ fees or other like
      payments incurred or alleged to have been incurred by the Seller in connection
      with the sale of the Purchased Assets or the consummation of the transactions
      contemplated by this Agreement; and (d) any claims, actions, liabilities,
      obligations, damages, losses, costs or expenses (including reasonable attorneys’
fees) which may be suffered or incurred by any Purchaser Indemnified Person
      as a
      result of the assertion against any Purchaser Indemnified Person of any
      liabilities or obligations of the Seller (other than (i) the liabilities and
      obligations of BSI in the BSI/Rochester Exclusive License which the Purchaser
      agrees to assume and become liable for pursuant to Section 4.01 (excluding
      any
      liabilities and obligations arising from the breach or noncompliance by BSI
      with
      the BSI/Rochester Exclusive License prior to the Closing Date or the nonpayment
      of the License Price thereunder); and (ii) the other liabilities and obligations
      of the Purchaser pursuant to this Agreement).

     

    (b) BSI
      Indemnity Cap; Excess Damages.
      The
      total aggregate amount of Damages for which BSI is liable pursuant to Section
      9.01(a) shall not exceed $2,225,000 (the “BSI
      Indemnity Cap”).
      Notwithstanding the foregoing, the amount of Damages recoverable by Purchaser
      and the other Purchaser Indemnified Persons from QED and the QED Shareholders
      pursuant to the provisions of Section 9.01(a) is not limited to the BSI
      Indemnity Cap and such Damages may exceed the BSI Indemnity Cap as described
      in
      Section 9.01(c) below. All Damages in excess of the BSI Indemnity Cap shall
      be
      referred to herein as “Excess
      Damages”.
      Any
      Excess Damages and other Damages hereunder and under the Purchase Agreement
      shall not in the aggregate exceed the Indemnity Cap under the Asset Purchase
      Agreement. 

     

    (c) By
      QED
      and the QED Shareholders.
      QED and
      the QED Shareholders agree to be jointly and severally liable for all Excess
      Damages; provided that such Excess Damages, together with all other Damages
      hereunder or under the Asset Purchase Agreement shall not exceed the Indemnity
      Cap (as defined in the Asset Purchase Agreement). Purchaser acknowledges and
      agrees that its indemnification rights under Section 9.01(a) for Excess Damages
      shall be pursued exclusively as set forth in Section 11 of the Asset Purchase
      Agreement and shall be subject to the Escrow, Escrow Exclusions and Indemnity
      Cap provisions set forth therein. QED and each QED 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        
Shareholder
        acknowledges and agrees that Purchaser may join them as defendants in connection
        with any indemnifiable claim under Section 9.01(a) without the necessity
        of a
        finding that Damages will or will likely exceed the BSI Indemnity Cap. QED
        and
        each QED Shareholder acknowledges and agrees that upon execution of this
        Agreement and at Closing, QED and the QED Shareholders will directly benefit
        from this Agreement. QED and each QED Shareholder acknowledges and agrees
        that
        the benefit conferred upon each of them in connection with this Agreement
        constitutes adequate consideration for their joint and several indemnification
        obligations hereunder. QED and each QED Shareholder further acknowledges
        and
        agrees that this Agreement is a Contemplated Transaction (as defined in the
        Asset Purchase Agreement). 

    

     

    Section
      9.02  Indemnification
      and Reimbursement. by the Purchaser.
      From
      and after the Closing Date, the Purchaser will indemnify and hold harmless
      the
      Seller and its Representatives, shareholders, subsidiaries and Related Persons
      (collectively, the “Seller
      Indemnified Persons”)
      and
      will reimburse the Seller Indemnified Persons, for any Damages arising from
      or
      in connection with:

     

    (a) the
      untruth or inaccuracy of any representation or warranty made by the Purchaser
      or
      CMC in this Agreement or in any certificate, document, writing or instrument
      delivered by the Purchaser or CMC pursuant to this Agreement;

     

    (b) the
      failure of the Purchaser or CMC to perform any of its covenants or obligations
      hereunder;

     

    (c) any
      claim
      by any person for brokerage or finder’s fees or commissions or similar payments
      based upon any agreement or understanding alleged to have been made by such
      person with the Purchaser or CMC (or any person acting on the Purchaser’s or
      CMC’s behalf) in connection with any of the transactions contemplated by this
      Agreement; 

     

    (d) any
      Damages which may be suffered or incurred by the Seller Indemnified Persons
      as a
      result of the assertion against any Seller Indemnified Person of any liabilities
      or obligations of the Purchaser or CMC, including the liabilities and
      obligations of BSI in the BSI/Rochester Exclusive License after the Closing,
      which the Purchaser hereby agrees to assume and become liable for, pursuant
      to
      and in accordance with Section 4.01. Seller acknowledges and agrees that its
      indemnification rights under this Section 9.02 shall be pursued exclusively
      as
      set forth in Section 11 of the Asset Purchase Agreement and shall be subject
      to
      the limitation on liability provisions set forth in Section 11.6
      therein.

     

    Section
      9.03  Pre-Closing
      Undertaking Among BSI, QED, Purchaser and the QED Shareholders.
      BSI,
      QED, Purchaser and the QED Shareholders each acknowledge and agree that it
      is
      the intent of the parties that the indemnification obligations of BSI under
      this
      Agreement be consistent with the indemnification terms, conditions, procedures
      and other provisions set forth in Sections 11.5 through 11.16 of the Asset
      Purchase Agreement (collectively, the “APA
      Indemnification Terms”),
      including, but not limited to, the basket, the Escrow, Time Limitations and
      the
      Escrow Exclusions described therein, provided, however, that: (i) all monetary
      baskets, caps and thresholds are intended to apply to Damages hereunder and
      thereunder in the aggregate and shall not create or give rise to duplicate
      or
      separate baskets, caps and thresholds in contravention of the Purchaser’s
      intended rights and benefits under the APA Indemnification Terms; (ii)
      notwithstanding the provisions of the immediately preceding clause (i), for
      purposes of application to BSI of the APA Indemnification Terms, the BSI
      Indemnity Cap shall be substituted for the Indemnity Cap (as defined in the
      Asset Purchase Agreement); and (iii) for the avoidance of doubt BSI shall have
      no liability under the Asset Purchase Agreement for any obligations of QED
      or
      the QED Shareholders thereunder. The parties hereto expressly acknowledge and
      agree that it is their intent that BSI receive the benefit of, and undertake
      the
      obligations under, the APA Indemnification Terms. Toward that end, the parties
      hereto agree to use good faith, diligent and commercially reasonable efforts
      to
      draft, negotiate and enter into an amendment to this Agreement after the date
      hereof and before the Closing to effect the foregoing intent, and only the
      foregoing intent (the “Pre-Closing
      Amendment”).
      .
      .

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      9.04  Knowledge
      and Materiality Qualifiers.
      Any
      knowledge (including best knowledge) and materiality qualifiers in Seller’s,
      CMC’s or Purchaser’s representations and warranties in this Agreement shall be
      disregarded for purposes of determining Seller’s, CMC’s, Purchaser’s, QED’s and
      the QED Shareholder’s indemnification obligations, as applicable (including the
      extent of Damages), in this Section 9.

     

    ARTICLE
      X  

     

    MISCELLANEOUS

     

    Section
      10.01  Notices.
      All
      notices, requests, demands and other communications required or permitted to
      be
      given hereunder shall be by hand-delivery, certified or registered mail, return
      receipt requested, facsimile, or air courier to the parties set forth below.
      Such notices shall be deemed given: at the time delivered by hand, if personally
      delivered; at the time received if sent certified or registered mail; when
      answered back, if telexed; when receipt acknowledged, if telecopied; and the
      fifth (5th) business day after timely delivery to the courier, if sent by air
      courier.

     

    If
      to
      the Seller:

     

    Byelocorp
      Scientific, Inc.

    70
      Pine
      Street

    57th
      Floor

    New
      York,
      NY 10270

    Attention: Lowell
      A.
      Mintz

    Telephone: (212)
      785-2580

    Facsimile: (212)
      785-2724

     

    If
      to
      the Purchaser:

     

    QED
      Technologies International, Inc.

    c/o
      Cabot
      Microelectronics Corp.

    870
      N.
      Commons Drive

    Aurora,
      IL 60504 

    Attention:
       General
      Counsel

    Telephone: (630)
      375-5461 

    Facsimile: (630)
      499-2644 

     

    If
      to
      CMC:

     

    Cabot
      Microelectronics Corporation

    870
      N.
      Commons Drive

    Aurora,
      IL 60504 

    Attention:
       General
      Counsel

    Telephone: (630)
      375-5461 

    Facsimile: (630)
      499-2644

     

    Section
      10.02  Governing
      Law and Jurisdiction.
      This
      Agreement will be governed by and construed under the laws of the State of
      Illinois without regard to conflicts-of-laws principles that would require
      the
      application of any other law. Any Proceeding arising out of or relating to
      this
      Agreement or any Contemplated Transaction may be brought in the courts of the
      State of Illinois, County of DuPage, or, if it has or can acquire jurisdiction,
      in the United States District Court for the Northern District of Illinois,
      Eastern Division, and each of the parties irrevocably submits to the exclusive
      jurisdiction of each such 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    court
      in
      any such Proceeding, waives any objection it may now or hereafter have to venue
      or to convenience of forum, agrees that all claims in respect of the Proceeding
      shall be heard and determined only in any such court and agrees not to bring
      any
      Proceeding arising out of or relating to this Agreement or any Contemplated
      Transaction in any other court. The parties agree that either or both of them
      may file a copy of this paragraph with any court as written evidence of the
      knowing, voluntary and bargained agreement between the parties irrevocably
      to
      waive any objections to venue or to convenience of forum. Process in any
      Proceeding referred to in the first sentence of this section may be served
      on
      any party anywhere in the world.

     

    Section
      10.03  WAIVER
      OF TRIAL BY JURY.
      EACH
      PARTY HERETO HEREBY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY,
      AND
      INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL
      PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
      IT
      CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER
      SOUNDING IN CONTRACT, TORT, OR OTHERWISE.

     

    Section
      10.04  Sales
      and Transfer Taxes.
      Notwithstanding anything herein to the contrary, the Seller shall pay 50% and
      the Purchaser shall pay 50% of the cost of any transfer, sales, purchase, use,
      value added, excise or similar tax imposed under the laws of the United States
      or any state or political subdivision thereof, which arises out of the transfer
      of any of the Purchased Assets to the Purchaser.

     

    Section
      10.05  Execution
      in Counterparts.
      This
      Agreement may be executed simultaneously in two or more counterparts, each
      of
      which shall be deemed an original agreement, but all of which together shall
      constitute one and the same instrument.

     

    Section
      10.06  Titles
      and Headings.
      Titles
      and headings to sections herein are for purposes of reference only, and shall
      in
      no way limit, define, or otherwise affect the provisions herein.

     

    Section
      10.07  Entire
      Agreement.
      This
      Agreement, the other Seller Transaction Documents and Purchaser Transaction
      Documents, the Asset Purchase Agreement and the Transaction Documents referred
      to therein, constitute the entire agreement among the parties with respect
      to
      the matters covered hereby and shall supersede all previous written, oral or
      implied understandings among them with respect to such matters.

     

    Section
      10.08  Amendment
      and Modification.
      This
      Agreement may be amended, modified or supplemented only by mutual consent set
      forth in writing duly signed by the parties hereto.

     

    Section
      10.09  Currency.
      All
      amounts expressed in this Agreement and all payments by this Agreement shall
      be
      in United States dollars.

     

    Section
      10.10  Binding
      Effect; Assignment.
      This
      Agreement shall be binding upon, and inure to the benefit of, the parties hereto
      and their respective successors, permitted assigns, heirs and personal
      representatives. No party, without the consent of all other parties, may assign
      its rights or obligations under or related to this Agreement whether
      voluntarily, involuntarily, by operation of law, transfer of the capital stock
      or assets of any party or otherwise, except that the Purchaser may, without
      any
      consent, either prior to, at or after the Closing assign its rights and
      obligations under or related to this Agreement to any subsidiary corporation
      or
      other affiliated entity of the Purchaser; provided, however, that no such
      assignment shall relieve the Purchaser or CMC of its obligations under this
      Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      10.11  Expenses.
      Except
      as otherwise provided in this Agreement, each party hereto shall pay their
      own
      expenses, including, without limitation, the expenses of its or their own
      counsel and accountants, in connection with the consummation of the transactions
      contemplated by this Agreement.

     

    Section
      10.12  Exhibits
      and Schedules.
      The
      Exhibits and Schedules hereto shall be construed with and as an integral part
      of
      this Agreement to the same effect as if the contents thereof had been set forth
      verbatim herein. 

     

    Section
      10.13  Public
      Announcement.
      All
      notices to third parties and all other publicity relating to the transactions
      contemplated by this Agreement shall be jointly planned, coordinated and agreed
      to by the Purchaser and the Seller, except to the extent disclosures are
      required by applicable law.

     

    Section
      10.14  Severability.
      If any
      provision of this Agreement shall be found invalid or unenforceable, in whole
      or
      in part, then such provision shall be deemed to be modified or restricted to
      the
      extent and in the manner necessary to render the same valid and enforceable,
      or
      shall be deemed excised from this Agreement, as the case may require, and this
      Agreement shall be construed and enforced to the maximum extent permitted by
      law, as if such provision had been originally incorporated herein as so modified
      or restricted, or as if such provision had not been originally incorporated
      herein, as the case may be.

     

    [signature
      page follows]

     


    
      
         

        3

        


        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF the parties hereto have executed this Technology Asset Purchase
      Agreement as of the day and year first above written.

     

     

    SELLER:

     

    BYELOCORP
      SCIENTIFIC, INC.

     

    By:

    


    Name:
      Lowell A. Mintz

    


    Title:
      Chairman, Chief Executive Officer and President

     

    


     

    THE
      PURCHASER:

     

    QED
      TECHNOLOGIES INTERNATIONAL, INC.

     

    By:

    


    Name:

    


    Title:

     

    


     

    CMC:

     

    CABOT
      MICROELECTRONICS CORPORATION 

     

    By:

    


    Name:

    


    Title:

     


    
      
         

        3

        


        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    QED
      Technologies, Inc., Don Golini and Lowell Mintz are parties to this Technology
      Asset Purchase Agreement solely with respect to their obligations under Section
      9

     

    QED
      TECHNOLOGIES, INC., a New York corporation 

     

    By:

    


    Name:

    


    Title:

     

    DON
      GOLINI, an individual

     

    ____________________________________________

     

    LOWELL
      MINTZ, an individual

     

    ____________________________________________

     


    
      
         

        3

        


        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Pursuant
      to Item 601(b)(2) of Regulation S-K, Cabot Microelectronics Corporation hereby
      agrees to furnish supplementally to the Securities and Exchange Commission
      a
      copy of the following schedules to the Technology Asset Purchase Agreement,
      which have been omitted from this filing:

    
      	
               

               Schedule

            	
               

               Contents

            
	
              Exhibit
                A

            	
              List
                of patents

            
	
              Exhibit
                B

            	
              List
                of copyrights, tradenames and service marks

            
	
              Exhibit
                C

            	
              BSI/Rochester
                exclusive license agreement

            
	
              Schedule
                6.05

            	
              List
                of patent maintenance fees

            
	
              Schedule
                8.01(g)

            	
              List
                of sublicenses

            
	
              Schedule
                8.01(k)

            	
              List
                of litigation

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      

        PRE-CLOSING
          AMENDMENT

        TO

        TECHNOLOGY
          ASSET PURCHASE AGREEMENT

        


        


        This
          Pre-Closing Amendment to Technology Asset Purchase Agreement (this “Amendment”),
          dated
          as of 7 July 2006, is by and among Cabot
          Microelectronics Corporation, a Delaware corporation (“CMC”
or
          the
“Parent”),
          QED
          Technologies International, Inc., a Delaware corporation and wholly owned
          subsidiary of CMC (the “Purchaser”),
          Byelocorp Scientific Inc., a New York corporation (“BSI”
or
          the
“Seller”),
          QED
          Technologies, Inc., a New York corporation (“QED”),
          Don
          Golini, an individual (“Golini”),
          and
          Lowell Mintz, an individual (“Mintz”
and,
          together with Golini, the “QED
          Shareholders”
and,
          each, a “QED
          Shareholder”).

        


        RECITALS

        


        WHEREAS,
          Parent, Purchaser and Seller are parties to that certain Technology Asset
          Purchase Agreement dated as of June 15, 2006 (the “Agreement”);

        


        WHEREAS,
          QED and the QED Shareholders are parties to the Agreement for indemnification
          purposes as set forth therein; and

        


        WHEREAS,
          Parent, Purchaser, Seller, QED and the QED Shareholders desire to enter
          into
          this Amendment to further provide for certain indemnification matters as
          contemplated by and described in Section 9.03 of the Agreement,

        


        NOW,
          THEREFORE, for good and valuable consideration, the receipt and sufficiency
          of
          which are hereby acknowledged, Parent, Purchaser, Seller, QED and the QED
          Shareholders hereby agree as follows:

        


        AGREEMENT

        


        1. Section
          9.03 of the Agreement shall be deleted in its entirety and the following
          inserted in lieu thereof:

        


        “Section
          9.03 Indemnification
          Generally.
          Defined
          terms used in this Section 9.03 but not defined herein or elsewhere in
          the
          Agreement shall have the definitions assigned to such terms in the Asset
          Purchase Agreement.

         

        (a) Survival.
          All
          representations, warranties, covenants and obligations in this Agreement,
          the
          certificates delivered pursuant to Section 5.02(A) and any other certificate
          or
          document delivered by the Seller pursuant to this Agreement shall survive
          the
          Closing and the consummation of the Contemplated Transactions, subject
          to
          Section 9.03(c) below. The right to indemnification, reimbursement or other
          remedy based upon such representations, warranties, covenants and obligations
          shall not be affected by any investigation conducted with respect to, or
          any
          Knowledge acquired (or capable of being acquired) at any time, whether
          before or
          after the execution and delivery of this Agreement or the Closing Date,
          with
          respect to the accuracy or inaccuracy of or compliance with any such
          representation, warranty, covenant or obligation. The waiver of any condition
          based upon the accuracy of any representation or warranty, or on the performance
          of or compliance with any covenant or obligation, will not affect the right
          to
          indemnification, reimbursement or other remedy based upon such representations,
          warranties, covenants and obligations.

         

        
          
             

          

          
             

            
              

            

          

          
             

          

        

        (b) Limitations
          on Amount.
          Neither
          Seller, QED nor any QED Shareholder shall have liability (for indemnification
          or
          otherwise) with respect to claims under Section 9.01(a) until the total
          of all
          Damages with respect to such matters, together with Damages under Section
          11 of
          the Asset Purchase Agreement, exceeds Two Hundred Thousand Dollars ($200,000.00)
          in the aggregate, and then for all amounts of such Damages in excess of
          One
          Hundred Thousand Dollars ($100,000.00) in the aggregate; provided,
          however,
          that
          the total aggregate amount of Damages recoverable by Purchaser and the
          other
          Purchaser Indemnified Persons pursuant to the provisions of this Article
          IX,
          together with Damages under Article 11 of the Asset Purchase Agreement,
          shall be
          limited to the Escrow Amount, other than for Damages arising in respect
          of the
          Escrow Exclusions, which Escrow Exclusions expressly include Damages in
          respect
          of Sections 8.01(g)(i), (ii) and (iii), 8.01(i) and 8.01(k) (such Sections
          8.01(g)(i), (ii) and (iii), 8.01(i) and 8.01(k), herein the “BSI
          Escrow Exclusions”)
          of
          this Agreement (and none of Seller, QED or any QED Shareholder shall have
          personal liability for any claim for Damages under this Article IX except
          for
          BSI Escrow Exclusions, in the case of BSI, and for Escrow Exclusions, in
          the
          case of QED and the QED Shareholders and then only to the extent, and in
          the
          amount by which, Damages for Escrow Exclusions exceed the Escrow Amount,
          and in
          all events subject to the BSI Indemnity Cap, in the case of BSI, and the
          Indemnity Cap, in the case of QED and the QED Shareholders). Damages for
          the
          Escrow Exclusions, together with Damages under any other provision of Article
          11
          of the Asset Purchase Agreement and any other provision of this Agreement,
          shall
          be limited to an indemnity cap of Eight Million Five Hundred Thousand Dollars
          ($8,500,000.00) (the
          “Indemnity
          Cap”)
          in the
          aggregate. Subject to the foregoing limitations, including the Indemnity
          Cap,
          BSI will be liable for all Damages under this Article IX up to the BSI
          Indemnity
          Cap and QED and the QED Shareholders will be jointly and severally liable
          for
          all Excess Damages. Likewise, Purchaser will have no liability (for
          indemnification or otherwise) with respect to claims under Section 9.02
          until
          the total of all Damages with respect to such matters, together with Damages
          under Section 11.4(a) of the Asset Purchase Agreement, exceeds Fifty Thousand
          Dollars ($50,000) and then for the entire amount of such Damages; provided,
          however,
          that
          the total aggregate amount of Damages recoverable by Seller and the other
          Seller
          Indemnified Persons pursuant to the provisions of Section 9.02, together
          with
          all Damages recoverable by QED under Section 11.4 of the Asset Purchase
          Agreement, shall be limited to Damages not exceeding an indemnity cap of
          Eight
          Million Five Hundred Thousand Dollars ($8,500,000.00) in the aggregate.
          

         

        (c)
           Time
          Limitations.

         

        (i) If
          the
          Closing occurs, BSI, QED and the QED Shareholders, as applicable, will
          have
          liability (for indemnification or otherwise) with respect to any Breach
          under
          this Agreement of (A) a covenant or obligation to be performed or complied
          with
          prior to the Closing Date (other than those in Sections 2.01 (“Purchased
          Assets”) and 4.01 (“Non-assumption of Liabilities”) and Article VI (“Additional
          Covenants”), as to which a claim may be made at any time) or (B) a
          representation or warranty (other than those relating to the BSI Escrow
          Exclusions, as to which a claim may be made at any time within three (3)
          years
          after the Closing Date), only if on or before the date that is eighteen
          (18)
          months after the Closing Date, Purchaser notifies BSI, QED and the QED
          Shareholders of a claim specifying the factual basis of the claim in reasonable
          detail to the extent then known by Purchaser.

         

        (ii) If
          the
          Closing occurs, Purchaser will have liability (for indemnification or otherwise)
          with respect to any Breach of (i) a covenant or obligation to be performed
          or
          complied with by it prior to the Closing Date or (ii) any representation
          or
          warranty, only if on or before eighteen (18) months following the Closing
          Date,
          BSI notifies Purchaser of a claim specifying the factual basis of the claim
          in
          reasonable detail to the extent then known by BSI.

         

        
          
             

          

          
             

            
              

            

          

          
             

          

        

        (d) Escrow.
          Upon
          notice to BSI, QED and the QED Shareholders specifying in reasonable detail
          the
          basis therefor, Purchaser may give notice of a claim in any amount to which
          it
          may be entitled under this Article IX against the amount held escrow under
          the
          Escrow Agreement. To the extent that BSI and/or QED and the QED Shareholders
          have any obligation or liability pursuant to this Article IX, other than
          matters
          arising in respect of the Escrow Exclusions, such obligation or liability
          shall
          be discharged from the Escrow Amount in accordance with the Escrow Agreement
          and, with respect to matters arising from the Escrow Exclusions, first
          from the
          Escrow Amount (to the extent then available) in accordance with the Escrow
          Agreement and thereafter by BSI (for BSI Escrow Exclusions only) and/or
          QED and
          the QED Shareholders (for all other Escrow Exclusions), as applicable,
          up to the
          BSI Indemnity Cap, in the case of BSI and up to the Indemnity Cap, in the
          case
          of QED and the QED Shareholders. Neither the exercise of nor the failure
          to
          exercise such right to give a notice of a claim under the Escrow Agreement
          will
          constitute an election of remedies or limit Purchaser in any manner in
          the
          enforcement of any other remedies that may be available to it.

         

        (e) Third-Party
          Claims.

         

        (i) Promptly
          after receipt by a Person entitled to indemnity under this Article IX (an
          "Indemnified
          Person")
          of
          notice of the assertion of a Third-Party Claim against it, such Indemnified
          Person shall give notice to the Person obligated to indemnify (an "Indemnifying
          Person")
          of the
          assertion of such Third-Party Claim, provided that the failure to notify
          the
          Indemnifying Person will not relieve the Indemnifying Person of any liability
          that it may have to any Indemnified Person, except to the extent that the
          Indemnifying Person demonstrates that the defense of such Third-Party Claim
          is
          prejudiced by the Indemnified Person's failure to give such notice.

         

        (ii) If
          an
          Indemnified Person gives notice to the Indemnifying Person of the assertion
          of a
          Third-Party Claim, the Indemnifying Person shall be entitled to participate
          in
          the defense of such Third-Party Claim and, to the extent that it wishes
          (unless
          (i) the Indemnifying Person is also a Person against whom the Third-Party
          Claim
          is made and the Indemnified Person determines in good faith that joint
          representation would be inappropriate or (ii) the Indemnifying Person fails
          to
          provide reasonable assurance to the Indemnified Person of its financial
          capacity
          to defend such Third-Party Claim and provide indemnification with respect
          to
          such Third-Party Claim), to assume the defense of such Third-Party Claim
          with
          counsel reasonably satisfactory to the Indemnified Person. After notice
          from the
          Indemnifying Person to the Indemnified Person of its election to assume
          the
          defense of such Third-Party Claim, the Indemnifying Person shall not, so
          long as
          it diligently conducts such defense, be liable to the Indemnified Person
          under
          this Article for any fees of other counsel or any other expenses with respect
          to
          the defense of such Third-Party Claim, in each case subsequently incurred
          by the
          Indemnified Person in connection with the defense of such Third-Party Claim,
          other than reasonable costs of investigation. If the Indemnifying Person
          assumes
          the defense of a Third-Party Claim, no compromise or settlement of such
          Third-Party Claims may be effected by the Indemnifying Person without the
          Indemnified Person's Consent unless (A) there is no finding or admission
          of any
          violation of Legal Requirement or any violation of the rights of any Person;
          (B)
          subject to Section 9.03(b), the sole relief provided is monetary damages
          that
          are paid in full by the Indemnifying Person; and (C) the Indemnified Person
          shall have no liability with respect to any compromise or settlement of
          such
          Third-Party Claims effected without its Consent, which Consent shall not
          be
          unreasonably withheld, delayed or conditioned. If notice is given to an
          Indemnifying Person of the assertion of any Third-Party Claim and the
          Indemnifying Person does not, within thirty (30) days after the Indemnified
          Person's notice is given, give notice to the Indemnified Person of its
          election
          to assume the defense of such Third-Party Claim, the Indemnifying Person
          will be
          bound by any 

        
          
             

          

          
             

            
              

            

          

          
             
determination
            made in such Third-Party Claim or any compromise or settlement effected
            by the
            Indemnified Person.

        

         

        (iii) Notwithstanding
          the foregoing, if an Indemnified Person determines in good faith that there
          is a
          reasonable probability that a Third-Party Claim may adversely affect it
          or its
          Related Persons other than as a result of monetary damages for which it
          would be
          entitled to indemnification under this Agreement, the Indemnified Person
          may, by
          notice to the Indemnifying Person, assume the exclusive right to defend,
          compromise or settle such Third-Party Claim, but the Indemnifying Person
          will
          not be bound by any determination of any Third-Party Claim so defended
          for the
          purposes of this Agreement or any compromise or settlement effected without
          its
          Consent (which may not be unreasonably withheld).

         

        (iv) Notwithstanding
          the provisions of Section 10.02, each party hereto hereby consents to the
          nonexclusive jurisdiction of any court in which a Proceeding in respect
          of a
          Third-Party Claim is brought against any Indemnified Person for purposes
          of any
          claim that an Indemnified Person may have under this Agreement with respect
          to
          such Proceeding or the matters alleged therein and agree that process may
          be
          served on each such party with respect to such a claim anywhere in the
          world.

         

        (v) With
          respect to any Third-Party Claim subject to indemnification under this
          Article
          IX: (i) both the Indemnified Person and the Indemnifying Person, as the
          case may
          be, shall keep the other Person fully informed of the status of such Third-Party
          Claim and any related Proceedings at all stages thereof where such Person
          is not
          represented by its own counsel; and (ii) the parties agree (each at its
          own
          expense) to render to each other such assistance as they may reasonably
          require
          of each other and to cooperate in good faith with each other in order to
          ensure
          the proper and adequate defense of any Third-Party Claim.

         

        (vi) With
          respect to any Third-Party Claim subject to indemnification under this
          Article
          IX, the parties agree to cooperate in such a manner as to preserve in full
          (to
          the extent possible) the confidentiality of all Confidential Information
          and the
          attorney-client and work-product privileges. In connection therewith, each
          party
          agrees that: (i) it will use its best efforts, in respect of any Third-Party
          Claim in which it has assumed or participated in the defense, to avoid
          production of Confidential Information (consistent with applicable law
          and rules
          of procedure), and (ii) all communications between any party hereto and
          counsel
          responsible for or participating in the defense of any Third-Party Claim
          shall,
          to the extent possible, be made so as to preserve any applicable attorney-client
          or work-product privilege.

         

        (f) Other
          Claims.
           Within
          thirty (30) Business Days after a party obtains Knowledge that it has sustained
          any Damages not involving a Third-Party Claim or action which such party
          reasonably believes may give rise to a claim for indemnification from another
          party hereunder, such Indemnified Person shall deliver notice of such claim
          to
          the Indemnifying Person, together with a brief description of the facts
          and data
          which support the claim for indemnification; provided,
          however,
          that
          failure to so notify the Indemnifying Person shall not relieve the Indemnifying
          Person of its indemnification obligations hereunder, except to the extent
          that
          the Indemnifying Person is actually prejudiced thereby. Any such notice
          must be
          made to the Indemnifying Person not later than the expiration of the applicable
          survival period specified in Section 9.03(c). If the Indemnifying Person
          does
          not notify the Indemnified Person within thirty (30) Business Days following
          its
          receipt of such notice that the Indemnifying Person disputes its liability
          to
          the Indemnified Person under this Article IX, such claim specified by the
          Indemnified Person in such notice shall be conclusively deemed a Liability
          of
          the Indemnifying Person under this Article IX and the Indemnifying Person
          shall
          pay the amount of such claim to the 

        
          
             

          

          
             

            
              

            

          

          
             
Indemnified
            Person on demand or, in the case of any notice in which the amount of
            the claim
            (or any portion thereof) is estimated, on such later date when the amount
            of
            such claim (or such portion thereof) becomes finally determined. If the
            Indemnifying Person has timely disputed its liability with respect to
            such
            claim, as provided above, the Indemnifying Person and the Indemnified
            Person
            shall proceed in good faith to negotiate a resolution of such dispute
            and, if
            not resolved through negotiations, such dispute shall be resolved pursuant
            to
            Section 9.03(g).

        

         

        (g) Resolution
          of Conflicts.

        


        (i) For
          purposes of this Article IX, if no agreement can be reached after good
          faith
          negotiation between the parties, either Purchaser, Seller, QED or the QED
          Shareholders may, by written notice to the other parties, request that
          appropriate representatives of each party with decision-making authority,
          together with their respective counsel, meet in New York, New York (if
          such
          request is made by Purchaser) or in Chicago, Illinois (if such request
          is made
          by BSI, QED or the QED Shareholders) for one (1) day in an effort to directly
          resolve the dispute. In the event such a meeting or subsequent meetings
          fail to
          resolve the dispute, the parties agree that they shall submit the claim
          to the
          following alternative dispute resolution process: The parties first agree
          to
          submit the claim and attempt in good faith to resolve the claim pursuant
          to
          non-binding mediation or non-binding arbitration of the dispute by a neutral
          third-party mediator or arbitrator, as applicable, mutually agreed upon
          and
          selected in good faith by the parties (in either case, the party conducting
          such
          mediation or arbitration shall be referred to herein as a “mediator”) and
          conducted on terms and conditions to be determined by agreement of the
          parties
          and such mediator. The mediator shall set a limited time period and establish
          procedures designed to reduce the cost and time expended by the parties
          while
          allowing the parties an opportunity, adequate in the reasonable judgment
          of the
          mediator, to discover relevant information from the opposing parties about
          the
          subject matter of the dispute. In the case of non-binding arbitration,
          such
          mediator may render findings and such findings may be admissible in court,
          but
          neither party shall be deemed to have stipulated or agreed to such findings
          or
          otherwise be bound by such findings. In the event that non-binding mediation
          or
          non-binding arbitration fails to resolve the dispute, then any party may
          resort
          to litigation, provided, however, that the party(ies) who does not prevail
          in
          such litigation will be responsible for all costs, expenses and attorneys’ fees
          related to such litigation both for and on behalf of itself and the prevailing
          party. 

        


        (ii) It
          is the
          intent of the parties hereto that all claims between the parties, except
          those
          seeking equitable relief, shall be settled by the procedures as set forth
          in
          this Section 9.03(g).

         

        (h) Indemnification
          in Case of Strict Liability or Indemnitee Negligence.
          The
          indemnification provisions in this Article  IX shall be enforceable
          regardless of whether the liability is based upon past, present or future
          acts,
          claims or Legal Requirements and regardless of whether any Person (including
          the
          person from whom indemnification is sought) alleges or proves the sole,
          concurrent, contributory or comparative negligence of the Person seeking
          indemnification or the sole or concurrent strict liability imposed upon
          the
          Person seeking indemnification.

         

         

        (i) Exclusive
          Remedy.
          In the
          absence of fraud and except as provided in Section 9.03(l), the indemnification
          provisions set forth in this Article IX shall provide the exclusive remedy
          for
          breach of any covenant, agreement, representation or warranty of Seller,
          Purchaser or CMC, as the case may be, set forth in this Agreement, the
          certificates delivered pursuant to Section 5.02, any transfer instrument
          or any
          other certificate, document, writing or instrument delivered by Seller,
          Purchaser or CMC, as the case may be, pursuant to this agreement. In the
          

        
          
             

          

          
             

            
              

            

          

          
             

          

        

        case
          of
          fraud, the remedies provided in this Article IX will not be exclusive of
          or
          limit any other remedies that may be available to Purchaser, Seller and
          the
          other Indemnified Persons, as the case may be 

         

         

        (j) Tax
          Treatment of Indemnification Payments.
          Unless
          otherwise required by applicable law, Purchaser and Seller agree to treat
          any
          payment made pursuant to this Article IX as an adjustment to the Purchase
          Price
          for federal, state and local income Tax purposes.

         

        


        (k) Effect
          of Tax and Insurance Benefits.
          Notwithstanding anything to the contrary contained herein, for purposes
          of this
          Article IX, the amount of Damages for a particular claim for which
          indemnification is provided under this Article IX shall be offset by (i)
          any Tax
          benefits actually realized by an Indemnified Person pursuant to Section
          9.03(j)
          as a result of payments made under such claim or otherwise directly as
          a result
          of such claim and (ii) the amount of any insurance proceeds received by
          an
          Indemnified Person by reason or in respect of such Damages (exclusive of
          deductibles, retrospective premiums and self-insured retentions under such
          insurance policies and any costs associated with making or pursuing any
          claims);
          provided, however that neither Purchaser nor CMC shall be required or obligated
          to make or pursue any claims under any insurance policies as a condition
          to
          indemnification pursuant to this Article IX or otherwise and any such claims
          actually made shall be in the sole discretion of Purchaser or CMC, as
          applicable, provided, however, that Purchaser and CMC shall accept any
          such
          insurance proceeds resulting from any such claim in offset under this Section
          9.03(k), subject only to the commercially reasonable requirements or conditions
          of its insurer. 

         

        (l) Enforcement
          of Agreement.
          Seller
          acknowledges and agrees that Purchaser would be irreparably damaged if
          any of
          the provisions of this Agreement are not performed in accordance with their
          specific terms and that any breach of this Agreement by Seller could not
          be
          adequately compensated in all cases by monetary damages alone. Accordingly,
          in
          addition to any other right or remedy to which Purchaser may be entitled,
          at law
          or in equity, it shall be entitled to enforce any provision of this Agreement
          by
          a decree of specific performance and to temporary, preliminary and permanent
          injunctive relief to prevent breaches or threatened breaches of any of
          the
          provisions of this Agreement, without posting any bond or other
          undertaking.”

        


        --3. Except
          as
          expressly amended hereby, all terms and conditions of the Agreement shall
          remain
          in full force and effect, and from and after the date hereof, reference
          to the
          Agreement shall refer to the Agreement, as amended hereby.

        


        [signature
          page(s) follow]

        



        
          
             

          

          
             

            
              

            

          

          
             

          

        


        IN
          WITNESS WHEREOF, the parties hereto, hereby execute this Amendment as of
          the
          date first set forth above.

         

        SELLER:

        


        BYELOCORP
          SCIENTIFIC INC.

         

        By:

        Name:
           Lowell
          A.
          Mintz

        Title:
           Chairman,
          Chief Executive Officer and President

         

        PURCHASER:

        


        QED
          TECHNOLOGIES INTERNATIONAL, INC.

         

        By:

        Name:

        Title:

         

        CMC:

        


        CABOT
          MICROELECTRONICS CORPORATION 

         

        By:

        Name:

        Title:

         

        (Signature
          Pages Continue on Following Page)

         


        
          
             

          

          
             

            
              

            

          

          
             

          

        


        QED:

         

        QED
          TECHNOLOGIES, INC., a New York corporation 

         

        By:

        Name:

        Title:

         

        QED
          SHAREHOLDERS:

         

        DON
          GOLINI, an individual

         

        _____________________________________

         


        LOWELL
          MINTZ, an individual

         

        _____________________________________