LICENSE AGREEMENT
EXHIBIT
10.1
This
License Agreement (“Agreement”)
is
entered into as of September 1, 2006, by and between National Quality Care,
Inc., a Delaware corporation (“Licensor”),
and
Xcorporeal, Inc. (“Licensee”)
(each,
a “Party;”
collectively, the “Parties”).
The
Parties hereby agree as follows:
1.
Defined
Terms.
For
purposes of this Agreement, the following definitions will apply:
“Affiliate”
means,
when applied to a Party, any entity that is controlled by, controls, or is
under
common control with, such Party.
“Confidential
Information”
means
and includes any non-public information relating to or concerning a Party hereto
(the “Disclosing
Party”),
or
any of its Affiliates, that is provided or made available to the other Party
(the “Receiving
Party”),
either before or after the Effective Date of this Agreement, directly or
indirectly, in any form whatsoever, including in writing, orally, and in
electronic or other machine readable form, including, but not be limited to,
designs, know-how, inventions, technical data, ideas, uses, processes, methods,
formulae, research and development records and materials, work in process,
scientific, engineering and/or manufacturing records or materials, marketing
plans, business plans, financial or personnel records or materials, present
or
future products, sales, suppliers, customers, employees, investors or business,
information about this Agreement, and any other non-public business records
and
information, the use or disclosure of which might reasonably be construed to
be
contrary to the interests of the Disclosing Party or any of its Affiliates,
including non-public information of third parties that is possessed by the
Disclosing Party is subject to confidentiality obligations and that the
Disclosing Party is lawfully allowed to disclose to the Receiving Party.
“Derivative
Works”
means
(a) for Licensor material subject to copyright or mask work right
protection, any work that as a whole represents an original work of authorship,
and is based upon one or more pre-existing works, such as a revision,
modification, translation, abridgment, condensation, expansion, collection,
compilation or any other form in which such pre-existing works may be recast,
transformed or adapted; (b) for Licensor patentable materials, any
adaptation, subset, addition, improvement or combination of such materials;
(c) for Licensor material subject to trade secret protection, any new
material, information or data relating to and derived from such material,
including new material that may be protectable by copyright, patent or other
proprietary rights; and (d) with respect to each of the above, any material
the preparation, use and/or distribution of which, in the absence of this
Agreement or other authorization from Licensor, would constitute infringement
or
misappropriation under applicable law.
“Gross
Sales”
means
the total amount actually received by Licensee as revenue from the exploitation
of the Technology (as defined below) by Licensee, its Affiliates and sub
licensees, collectively, less separately stated freight payable to third
parties, commercially reasonable special packaging, and duties, sales, use,
excise, value added and other taxes, discounts, returns, and allowances.
1
“Intellectual
Property Rights”
means
all of the following worldwide legal rights owned, held or controlled by
Licensor: (a) patents, patent applications, and patent rights; (b)
trademarks, trademark registrations and applications therefor, trade names,
rights in trade dress and packaging; (c) rights associated with works of
authorship (including audiovisual works), including copyrights, copyright
applications, and copyright registrations; (d) rights relating to the
protection of trade secrets, confidential information, technical information,
know-how, ideas, concepts, processes, procedures, techniques, discoveries,
and
inventions; (e) Moral Rights (as defined below); (f) design rights;
(g) rights in name, likeness and other rights of commercial publicity;
(h) any rights analogous to those set forth in the preceding clauses and
any other proprietary rights relating to intangible property; and
(i) divisions, continuations, renewals, reissues, and extensions of the
foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
“Know-How”
means
all (i) information and data possessed by Licensor, exclusive of any of the
independent claims contained in the Licensor Patents (but including all other
information and data contained in, or related to, any patent application filed
by or on behalf of Licensor), relating to the exploitation and/or use of the
Licensed Products (as defined below), including without limitation:
(a) sources of materials; (b) methods, processes and procedures (and
related test results and design data) for the extraction, isolation, creation,
purification, and/or chemical modification of materials used in the production
of the Licensed Products; (c) methods, processes and procedures used in the
design, development, creation, modification, manufacture, production,
processing, storage, packaging, testing and/or evaluation of the Licensed
Products, including without limitation all biological and toxicological tests
(and results thereof) together with all correspondence, notes, memoranda, and
other information and/or data provided to, or received from, all health
regulatory authorities; and (ii) trade secrets, data, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, program proposals, presentations, inventions and ideas, past, current,
and planned research and development, current and planned manufacturing or
distribution methods and processes, market studies, business plans, computer
software and programs, systems, structures and architectures (and related
processes, formulae, composition, improvements, devices, inventions,
discoveries, concepts, ideas, designs, methods and information), and any other
information, however documented, that is not generally known to the public
or
that constitutes a trade secret under any applicable trade secret law.
“Licensed
Products”
means
all products based on or derived from the Technology (as defined below), and
any
products sold in connection with the use of such products, including, but not
limited to the Wearable Kidney and all related devices, whether now-existing
or
hereafter developed, that where sold, would infringe or misappropriate one
or
more of Licensor’s Intellectual Property Rights or Know-How, including, without
limitation, the Licensor Patents or Licensor Patent Applications.
“Licensor
Patents”
means
the patents (and all re-issues and extensions) listed on the Schedule
attached
hereto and the patents, when issued, based upon the Licensor Patent Applications
and in all divisions, continuations and continuations in part relating thereto.
2
“Licensor
Patent Applications”
means
the patent applications listed on the Schedule
attached
hereto and any substitutions and continuations together with any patent
applications based on, or related to, the Technology that may be filed by
Licensor from the date hereof.
“Moral
Rights”
means
any rights of paternity or integrity, any right to claim authorship, to object
to or prevent any distortion, mutilation or modification of, or other derogatory
action in relation to the subject work, whether or not such would be prejudicial
to the author’s honor or reputation, to withdraw from circulation or control the
publication or distribution of the subject work, and any similar right, existing
under judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or generally
referred to as a “moral right.”
“Net
Sales”
means
Gross Sales less the following: (a) all direct costs and expenses of
Licensee attributable to the research, development, production, marketing,
sale
and exploitation of the Licensed Products, including, without limitation, costs
of materials and direct labor costs; and (b) all indirect costs of Licensee
properly allocated under generally accepted accounting principles to the
research, development, production, marketing, sale and/or exploitation of the
Licensed Products, including, without limitation, overhead and selling, general
and administrative expenses.
“Technology”
means
and includes all existing and hereafter developed Intellectual Property,
Know-How, Licensor Patents, Licensor Patent Applications, Derivative Works,
and
any other technology invented, improved or developed by Licensor, or as to
which
Licensor owns or holds any rights, arising out of or relating to the research,
development, design, manufacture or use of: (a) any medical device,
treatment or method as of the date of this Agreement, (b) any portable or
continuous dialysis methods or devices, specifically including any wearable
artificial kidney, or Wearable Kidney, and related devices, (c) any device,
methods or treatments for congestive heart failure, and (d) any artificial
heart or coronary device.
“Territory”
means
anywhere in the universe.
2.
Grant Of Exclusive License. Subject
to Licensee’s continuing full compliance and complete and timely performance of
all of the material obligations, terms and conditions imposed on it by this
Agreement, Licensor hereby grants to Licensee, with right to grant sublicenses,
the sole and exclusive license, during the Term and throughout the Territory,
to
use, improve, expand and otherwise exploit the Technology, to make (and have
made), use, and sell the Licensed Products, and otherwise to practice the
inventions and the art that is embodied or described in the Licensor Patents,
the Licensor Patent Applications, and any improvements thereto made in whole
or
in part by Licensor (whether or not patented) in connection with the Technology
(the “License”),
provided,
however,
that
the terms of any sublicense shall expressly conform and be made subject to
the
terms and conditions of this Agreement.
3.
License Fees, Reports And Records.
A. License
Fees.
(1) During
the Term of this Agreement, Licensee shall pay to Licensor a license fee of
seven percent (7.0 %) of Net Sales (the “Royalty”);
provided,
however,
that
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Licensee
shall pay to Licensor a minimum aggregate annual Royalty of two hundred fifty
thousand dollars ($250,000.00) (the “Minimum
Royalty”).
Within ninety (90) days of each anniversary of the date of this Agreement,
Licensee shall pay Licensor the remaining difference, if any, between the
Minimum Royalty and the aggregate of all Royalty payments for the preceding
year. All payments due hereunder will be paid by wire transfer or check payable
in United States currency. Whenever conversion of payments from any foreign
currency is required, such conversion will be made at the rate of exchange
reported in The Wall Street Journal on the last business day of the applicable
reporting period. Unless earlier terminated as provided hereinafter, the
obligation of Licensee to pay Royalties to Licensor shall expire upon the date
that none of the Licensed Products infringe any of the Licensor Patents.
(2) Notwithstanding
the foregoing Section 3(A)(1),
in the
event that the Merger Agreement of even date herewith among the Parties and
NQCI
Acquisition Corporation, a Delaware corporation (the “Merger
Agreement”)
is
terminated pursuant to Section 6(A) thereof, the Royalty pursuant to this
Agreement will thereafter be as follows:
(a)
If notice of termination is given pursuant to Section 6(A)(3), six and
one-half percent (6.5%) of Gross Sales;
(b)
If notice of termination is given pursuant to Section 6(A)(1), (5) or
(6), seven and one-half percent (7.5%) of Gross Sales; and
(c)
If notice of termination is given pursuant to Section 6(A)(2) or (4), eight
and one-half percent (8.5%) of Gross Sales;
provided,
however,
that if
it is later determined by an arbitrator or court of competent jurisdiction
that
a notice of termination was improper, or that the Merger Agreement was
terminated on a different basis or pursuant to a different provision, the
Royalty rate will be retroactively adjusted to the correct rate pursuant to
one
of the foregoing subsections, and any difference between the Royalty paid and
the Royalty rate determined to be correct will be paid by the appropriate Party
to the other within ninety (90) days of any such final determination.
B. Reports.
Within
thirty (30) days following the end of each fiscal quarter, Licensee shall
deliver to Licensor a report setting forth the calculation of the Royalty for
the applicable fiscal period, including the number of Licensed Products sold
by
Licensee and all sublicensees (if any), the Gross Sales and Net Sales, as
applicable, a reasonable breakdown of expenses in arriving at the foregoing,
any
other transactions involving Licensed Products, and the Gross Sales or Net
Sales, as applicable, resulting from all such transactions during such fiscal
quarter, and accompanied by payment of the Royalty due thereon.
C. Records.
Licensee and its sublicensees (if any) shall maintain records of the
transactions involving Licensed Products, Gross Sales, Net Sales, permitted
expense deductions, and all Royalties paid thereon for a period of four
(4) years following the end of the quarter following sale.
(a)
Audits.
Licensor may appoint an independent certified public accountant, who shall
have
the right to examine the records required under this Section 3.C
during
normal business hours on reasonable notice. Licensee shall, as a condition
to
the grant of any
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sublicense,
obtain the agreement of the sublicensee to make such records available for
inspection by Licensor’ independent auditor.
(b) Audit
Expenses.
Licensor shall initially bear all costs and expenses of any audit conducted
by
Licensor’s independent accountant. If there is an underpayment of Royalties in
excess of five percent (5%), Licensee shall remit the amount of such
underpayment to Licensor, together with a reimbursement for the reasonable
costs
and expenses of Licensor in connection with the audit. If there is an
overpayment of Royalties in excess of five percent (5%), Licensor shall remit
the amount of such overpayment to Licensee, together with reimbursement for
the
reasonable costs and expenses of Licensee in connection with the audit. Any
disputes concerning Royalty amounts due will be resolved by expedited, final
offer (baseball style) arbitration.
4.
Term.
A. Term.
This
Agreement and the License granted hereby shall, subject to all terms and
conditions set forth herein, remain in full force and effect for ninety-nine
(99) years from the date hereof (the “Term”);
provided, however, that the Term shall end as to each of the Licensor Patents
and copyrights upon the expiration of the term thereof, and as to each other
item of Intellectual Property Rights when, if and as they cease to be
protectible or fall into the public domain through no fault, action or inaction
on the part of either of the Parties.
B. Termination.
Either
Party shall have the right to terminate this Agreement: (1) for uncured material
breach of a material term of this Agreement by the other Party, by giving formal
written notice specifying the breach, and such breach has continued without
cure
for a period of (a) thirty (30) days after such notice or (b) if
the Party receiving such a notice (i) concludes in good faith that there the
conduct alleged to be occurring is not occurring or does not constitute a
material breach of this Agreement, and (ii) timely initiates an arbitration
proceeding in accordance with Section 9.H,
thirty
(30) days after entry of the arbitration award; or (2) in the event
that the other Party files for protection under the U.S. Bankruptcy Code, or
makes an assignment for the benefit of creditors. Upon termination of this
Agreement pursuant to this Section 4.B,
(a) Licensee, and all sublicensees (if any), shall cease to use the
Technology in any way, (b) Licensee, and all sublicensees (if any), shall
return to Licensor all Licensor Confidential Information, and (c) the
Parties shall remain liable for all of their respective obligations under this
Agreement that accrued prior to the date of termination.
5.
Intellectual Property Rights.
A. Prosecution
of Patent Applications.
Licensor shall diligently prosecute all of the Licensor Patent Applications
at
its own expense including, without limitation, in those foreign countries
described in the Schedule
attached
hereto. If, at any time, Licensor intends to allow any Licensor Patent
Application or Licensor Patent to lapse or to become abandoned or forfeited,
Licensor shall notify Licensee, in writing, of its intention at least sixty
(60) days before the date upon which said patent or application is due to
lapse or become abandoned or forfeited. In the event that Licensee desires
itself to continue to prosecute any such Licensor Patent Application, or to
take
the necessary action to maintain in force any such Licensor Patents, then
Licensee shall, within thirty (30) days following Licensor’s written notice
of intent to abandon, give
5
written
notice to Licensor of Licensee’s intent to prosecute and/or maintain such patent
rights and Licensor shall thereupon promptly assign the entire right, title
and
interest, legal and equitable, in and to that patent or application to Licensee.
Licensee shall be under no obligation to prosecute or maintain in force any
Licensor Patents, Licensor Patent Applications or other Intellectual Property
Rights.
B. Option
to Purchase Limited Patent and Intellectual Property Rights.
In the
event that Licensor files a petition in Bankruptcy under the U.S. Bankruptcy
Code, or has filed against it a petition of involuntary bankruptcy that is
not
dismissed with 60 days thereafter, Licensor will be deemed to have sold to
Licensee, the day prior to the filing of said petition, the Licensor Patents
and
Licensor Patent Applications and all other Intellectual Property Rights
pertaining to the Technology for a purchase price equal to the amount of the
Royalties paid to that time and the further Royalties that would otherwise
have
become payable by Licensee to Licensor over the remainder of the then-current
Term of this Agreement. The prospective portion of the purchase price shall
be
paid in the same manner and at the same time as the future Royalties would
otherwise have been paid hereunder.
C. Infringement.
(1) If
Licensor discovers that a third party is manufacturing or selling products
in
the Territory that infringe the Licensor Patents or any other legally
enforceable Intellectual Property Rights pertaining to the Technology, it shall
notify Licensee of such infringement and give such Party all appropriate
information in its possession relating to the infringement. This section shall
not impose any obligation on either Licensor or Licensee to maintain any ongoing
investigative program to detect any third party infringement.
(2) Licensee
shall have the sole right and authority to take such steps as it deems
reasonable and appropriate in its sole discretion to determine whether
actionable infringement is occurring and, if it is, to stop the infringement
in
the Territory during the Term, including but not limited to filing a legal
action against the alleged infringer in its own name.
(3) Licensee
shall have the sole right to direct and control the prosecution of such an
action, including selection of counsel and deciding to settle, dismiss or
continue the prosecution of the action on such terms and in the manner it deems
reasonable and appropriate in its sole discretion, and shall, subject to
Section 5.C(4),
bear
all costs and expenses of such action, and shall retain all damages and other
remedies recovered in such action.
(4) Licensee
shall have the right to offset all damages and losses awarded by any Court
of
competent jurisdiction relating to any infringement of the Intellectual Property
Rights or the sale or use of the Licensed Products, including Licensee’s legal
fees, costs and expenses, against any Royalty otherwise payable to Licensor.
D. Development
and Expenses.
(1)
Development.
Licensee shall make commercially reasonable efforts to develop and commercially
exploit the Technology to generate revenues during the Term.
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(2)
Requested
Expenses.
Upon
Licensee’s request, Licensor shall make commercially reasonable efforts to
continue and advance the research and development program to prepare the
Technology for commercial exploitation, and Licensee shall pay all reasonable
and necessary research and development costs and expenses arising therefrom.
(3)
Monthly
Expenses.
No
later than the earlier of (i) thirty (30) days after the date on which
Licensee has obtained total debt or equity investment of at least three million
five hundred thousand dollars ($3,500,000.00) or (ii) ninety (90) days
after the date hereof, Licensee shall reimburse Licensor’s reasonable and
necessary expenses incurred in the ordinary course of business consistent with
past practices (“Licensor
Expenses”),
during the period from the date hereof to the Closing (as defined therein)
or
termination of the Merger Agreement. All such Licensor Expenses shall:
(a) be only for the specific persons, services and expenses listed in
reasonable detail on the Budget contained in the Company Disclosure Schedule
to
the Merger Agreement, (b) be payable hereunder only to the extent not paid
pursuant to the Merger Agreement, (c) be mutually agreed upon in advance of
being reimbursed with regard to all Professional Fees set forth in the Budget,
and (d) include, but not be limited to, expenses already paid or accrued
relating to human clinical trials carried out or to be carried out on behalf
of
Licensor in Italy and the United Kingdom as set forth in the Budget.
6.
Confidentiality.
A. Each
Party agrees that during the performance of this Agreement, it may disclose
to
the other Confidential Information of such Disclosing Party. Each Receiving
Party shall not, at any time or in any manner, disclose, copy, modify,
distribute or otherwise transfer the Disclosing Party’s Confidential
Information, or any part thereof, to any other person, except as permitted
by
this Agreement.
B. A
Receiving Party may disclose Confidential Information (1) to professional
advisors of the Receiving Party in accordance with customary business practices
in connection with the Agreement, and (2) to the Disclosing Party’s
employees who have a specific need to know in order to perform that Party’s
obligations hereunder, provided,
however,
that
all such permitted disclosees shall be required to maintain the confidentiality
of the Confidential Information in accordance with this Agreement, and each
Receiving Party shall be responsible for all of its employees’ actions. Each
Party shall use the other Party’s Confidential Information only to properly
fulfill its obligations hereunder, and not for any other purpose. Upon request
of a Party, and in any event promptly following termination of this Agreement
under Section 4.C
above,
each Receiving Party shall immediately return the originals and all copies
of
any Confidential Information to the Disclosing Party.
C. The
obligations and restrictions set forth in this Section 6
shall
not apply to any Confidential Information that falls within any of the following
exceptions:
(1) is
or becomes part of the public domain without breach of this Agreement by a
Receiving Party;
(2) is
lawfully in the possession of a Receiving Party prior to receiving it from
the
Disclosing Party hereunder;
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(3) is
independently developed by or for a Receiving Party completely apart from the
disclosures hereunder;
(4) is
received from a third party who lawfully acquires such information without
restriction, and without breach of this Agreement by a Receiving Party; or
(5) is
released to the public or to a third party without a duty of confidentiality,
pursuant to a binding court order or government regulation, provided that the
Receiving Party delivers a copy of such order or action to the Disclosing Party
and cooperates with the Disclosing Party if it elects to contest such
disclosure.
Nothing
provided for in this Section 6
shall be
construed to preclude or inhibit Licensee’s rights to exploit any of its rights
under the License.
7.
Representations And Warranties.
A. Representations
and Warrants by Licensor.
Licensor represents and warrants, as of the date first set forth above and
upon
the Effective Date and upon the date each Licensor Patent issues that:
(1) Licensor
has the right to enter into this Agreement and there are no outstanding
assignments, grants, licenses, encumbrances, obligations or agreements, whether
written, oral or implied, that are inconsistent with this Agreement;
(2) Licensor
is the owner of the entire right, title and interest in and to invention and
the
art claimed in the Licensor Patent Applications and the claims contained in
any
Licensor Patent Rights that issues and that it has the sole right to grant
the
licenses granted to Licensee herein;
(3) The
Licensor Patents will not have been fraudulently procured, and Licensor has
no
reason to believe that the claims contained in the Licensor Patent Applications
will not be issued in a manner that will protect sales of the Licensed Products
in the Territory from competitors utilizing the invention or its equivalent;
(4) Licensor
has no knowledge of any circumstances that would render the Licensor Patents,
when issued, invalid; and
(5) Licensor
has not granted any license to or under the Technology to any other person
or
entity for its use within the Territory.
B. Representations
by Licensee. Licensee represents and warrants that it has the right enter into
and deliver this Agreement and undertake the duties provided for in this
Agreement.
8.
Indemnification.
A. Indemnification
by Licensor.
Licensor agrees to hold harmless, defend and indemnify each of Licensee and
its
officers, directors, shareholders, employees, members,
8
partners,
managers, attorneys and agents, from and against any liability, claims, demands,
actions, costs, expenses, including reasonable attorneys’ fees, or causes of
action whatsoever (collectively, “Claims”)
arising on account of:
(1) Any
breach by Licensor of its representations and warranties contained herein;
(2) Licensee’s
lawful and non-negligent use of any Intellectual Property Rights licensed by
Licensor hereunder;
(3) Any
Claims that Licensee’s use of the Intellectual Property Rights in conformity of
this Agreement infringes upon or misappropriates the intellectual property
rights of any third party; or
(4) Licensor’s
operations or conduct prior to the date of this Agreement with regard to the
research, development, or production of the Technology and/or Licensed Products.
Such Claims shall include, without limitation, any product liability claims
or
Claims on account of any injury or death of persons or damage to property based
on alleged defects in the Technology existing as of the effective date of this
Agreement or based on actions or omissions of Licensor, regardless of whether
such Claims are made prior to or at any time after the date of this Agreement.
B. Indemnification
by Licensee.
Licensee agrees to hold harmless, defend and indemnify each of Licensor and
its
officers, directors, shareholders, employees, members, partners, managers,
attorneys and agents, from and against any Claims arising on account of any
breach by Licensee of it representations and warranties contained herein.
9.
General.
A. Reformation/Severability.
If any
provision of this Agreement is declared invalid by any tribunal, then such
provision shall be deemed automatically adjusted to the minimum extent necessary
to conform to the requirements for validity as declared at such time and, as
so
adjusted, shall be deemed a provision of this Agreement as though originally
included herein. In the event that the provision invalidated is of such a nature
that it cannot be so adjusted, the provision shall be deemed deleted from this
Agreement as though such provision had never been included herein. In either
case, the remaining provisions of this Agreement shall remain in effect.
B. Binding
Effect.
All of
the terms of this Agreement shall be binding upon, and inure to the benefit
of,
and be enforceable by, the Parties and their successors and permitted assigns,
if any.
C. Schedules.
All
schedules attached hereto and referred to herein, are an integral part of this
Agreement and are incorporated herein by reference hereby.
D. Subject
Headings.
The
subject headings of the sections of this Agreement are included solely for
purposes of convenience and reference only, and shall not be deemed to
9
explain,
modify, limit, amplify or aid in the meaning, construction or interpretation
of
any of the provisions of this Agreement.
E. Interpretations
and Definitions.
In this
Agreement whenever the context so requires, the gender includes the neuter,
feminine and masculine and the number includes the singular and the plural
and
the words “person” and “party” include individuals, corporations, partnerships,
firms, trusts or associations.
F. Waiver.
Any
waiver by any Party of any breach of any term or condition of this Agreement
shall not be deemed a waiver of any other breach of such term or of any other
term or condition, nor shall the failure of any Party to enforce such provision
constitute a waiver of such provision or any other provision, nor shall such
action be deemed a waiver or release of the other Party for any claims arising
out of or connected with this Agreement.
G. Choice
of Law.
This
Agreement and all matters or issues collateral hereto shall be construed in
accordance with, and governed by, the laws of the State of Delaware.
H. Arbitration.
Any
dispute, controversy or claim arising out of or relating to this Agreement,
shall be resolved by final and binding arbitration before a retired judge at
JAMS or its successor in Santa Monica, California. The expenses of arbitration,
the reasonable fees and costs of legal counsel, experts, and evidence shall
be
awarded to the prevailing Party. Any interim or final award of the arbitrator
may be entered in any court of competent jurisdiction.
I. Successors
and Assigns.
Neither
this Agreement nor any of the rights or obligations hereunder shall be
assignable by any Party hereto without the written consent of the other Party
first obtained and any attempted assignment without such written consent shall
be void and confer no rights upon any third party. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective representatives, successors and permitted
assigns.
J. No
Joint Venture.
This
Agreement does not constitute and shall not be construed to constitute an
agency, a partnership or a joint venture between the Parties. Neither Party
shall have any power or right, nor shall it represent itself as having any
power
or right to obligate or bind the other Party in any manner whatsoever and
nothing contained in this Agreement shall give or is intended to give any rights
of any nature to third party. This is an agreement between separate entities
and
neither is the agent of the other for any purpose whatsoever.
K. Notice.
All
written notices or other written communications required under this Agreement
shall be deemed properly given when provided to the parties entitled thereto
by
personal delivery (including delivery by commercial services such as messengers
and airfreight forwarders), by electronic means (such as by electronic mail,
telex or facsimile transmission) or by mail sent registered or certified mail,
postage prepaid at the following addresses (or to such other address of a Party
designated in writing by such Party to the others):
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If
to
Licensee:
Attn:
Xxxxxx X. Xxxxxx
c/x
Xxxxxxxxx Xxxxxxx, LLP
0000
Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxx X. Xxxxxxxx, Esq.
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxxxxx
Xxxxxxx, LLP
0000
Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxx X. Xxxxxxxx, Esq.
Fax:
(000) 000-0000
If
to
Licensor:
National
Quality Care, Inc.
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxxx
& Xxxxxxxxx, LLP
00000
Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
Fax:
(000) 000-0000
All
notices given by electronic means shall be confirmed by delivering to the Party
entitled thereto a copy of said notice by certified or registered mail, postage
prepaid, return receipt requested. All written notices shall be deemed delivered
and properly received upon the earlier of two (2) days after mailing the
confirmation notice or upon actual receipt of the notice provided by personal
delivery or electronic means.
L. Further
Documents.
Each
Party shall execute and deliver, at any time and from time to time, upon the
request of the other such further instruments, papers or documents as may be
necessary or appropriate to consummate the transactions contemplated hereby
and
to take such other action as the other Party may reasonably request to
effectuate the purposes of this Agreement.
11
M. Amendment.
This
Agreement may only be amended, modified or changed by a written document
executed by both Parties.
N. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
O. Entire
Agreement.
This
instrument contains the entire agreement between the Parties, and supersedes
all
prior or contemporaneous understandings or agreements, whether written or oral.
Neither Party has relied upon any promise, representation or undertaking not
expressly set forth herein.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
as
of the day and date first set forth above.
LICENSOR:
NATIONAL
QUALITY CARE, INC.
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By:
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/s/
Xxxxxx Xxxx
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Name:
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Xxxxxx
Xxxx, M.D.
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Title:
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Chief
Scientific Officer
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Chief
Executive Officer
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LICENSEE:
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Chairman
of the Board
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12
