AGREEMENT
Exhibit 10.17
AGREEMENT
THIS AGREEMENT, entered into this 30 day of April 2008, is by and between Accelerated
Innovation LLC, a Delaware Limited Liability Company having its principal place of business at 0000
X.X. Xxxxxxx 00X, Xxxxx X000, Xxxxxxx, XX 00000 (“Accelerated”), Cervical Xpand, LLC, a New Jersey
Limited Liability Company having its principal place of business at 0000 X.X. Xxxxxxx 00X, Xxxxx
X000, Xxxxxxx, XX 00000 (“Cervical Xpand”), Uni-Knee, LLC, a New Jersey Limited Liability Company
having its principal place of business at 0000 X.X. Xxxxxxx 00X, Xxxxx X000, Xxxxxxx, XX 00000
(“Uni-Knee”) and Xxxx X. Xxxxxxxxx, an individual residing at 00 Xxxxx Xxxxxxxxx Xxxx Xxxx, Xxxxxx,
XX 00000 (“Xxxxxxxxx”).
Whereas, Accelerated is the owner of all right, title and interest in certain technology
related to spinal, hip and knee orthopedic devices and instruments,, including, but not limited to
the patent applications set forth in Exhibit A (hereinafter, “Accelerated Technology”); and
Whereas, Uni-Knee is the owner of all right, title and interest in certain technology related
to the Accin Uni-Knee System for Unicompartmental Knee Surgery, including, but not limited to the
patent applications set forth in Exhibit B (hereinafter, “Uni-Knee Technology”); and
Whereas, Xxxxxxxxx has certain knowledge and expertise in the field of hip and knee
orthopedic devices and instruments,, and assisted Accelerated in the development and
commercialization some of Accelerated’s Technology; and
Whereas, Xxxxxxxxx has certain knowledge and expertise in the field of Unicompartmental Knee
Surgery, and assisted Uni-Knee in the development and commercialization some of Uni-Knee’s
Technology; and
Whereas, Accelerated retained Xxxxxxxxx as an Independent Contractor to assist Accelerated in
the development and/or commercialization some of the Accelerated Technology; and
Whereas, Uni-Knee retained Xxxxxxxxx as an Independent Contractor to assist Uni-Knee in the
development and/or commercialization of the Uni-Knee Technology; and
NOW, THEREFORE, for good and valuable consideration, the receipt for and sufficiency of which
is hereby acknowledged, Xxxxxxxxx does hereby represent and warrant as follows:
1.1. Xxxxxxxxx hereby represents and warrants that Xxxxxxxxx will not assert any rights in any Accelerated Technology or any Uni-Knee Technology.
1.2. Xxxxxxxxx hereby represents and warrants that his contributions to the inventions as disclosed in the Accelerated Technology and the Uni-Knee Technology are not subject
to any pre-existing or co-existing obligations to any third party.
1.3. Xxxxxxxxx hereby represents and warrants that to Xxxxxxxxx’x knowledge, no
composition, method, software or device incorporating his inventions would infringe any patent, copyright or other proprietary right of any third party.
1.4. Xxxxxxxxx hereby represents and warrants that Xxxxxxxxx has no other obligations
to assign any inventions made, conceived or reduced to practice during his relationship
with Accelerated or Uni-Knee.
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1.5. Xxxxxxxxx hereby represents and warrants that the terms of this Agreement are not inconsistent with any other contractual or legal obligations that Xxxxxxxxx may have or with
the policies of any institution or company with which Xxxxxxxxx is or was associated.
1.6. Xxxxxxxxx hereby represents and warrants that all of Xxxxxxxxx’x contributions to
the Accelerated Technology and the Uni-Knee Technology were Xxxxxxxxx’x original work
and that, to Xxxxxxxxx’x knowledge, none of his inventions or any development, use,
production, distribution, or exploitation thereof will infringe, misappropriate, or violate
any
intellectual property or other right of any other person or entity (including, without
limitation,
Xxxxxxxxx).
1.7. Xxxxxxxxx has the right to enter into this Agreement and to provide Accelerated
and Uni-Knee with the representations and warranties and rights provided for herein.
| 2. | MISCELLANEOUS PROVISIONS. |
2.1. Assignment:
This Agreement cannot be assigned by either party without the prior written consent of the other
party, which will not be unreasonably withheld, except that Accelerated and Uni-Knee may assign
this Agreement to any successor of all or substantially all of its business to which this
Agreement relates without the prior written consent of Xxxxxxxxx.
2.2. Binding Effect:
This Agreement will be binding on and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns.
2.3. Force Majeure:
No party will be in default or otherwise liable for any delay in or failure of its performance
under this Agreement if such delay or failure arises by any reason beyond its reasonable control,
including any act of God, any acts of the common enemy, terrorism, the elements, earthquakes,
floods, fires, epidemics, riots, failure or delay in transportation or communications, or any
other act or failure to act by another party or such other party’s employees, agents, or
contractors; provided, however, that lack of funds will not be deemed to be reasons beyond a
party’s reasonable control. The parties will promptly inform and consult with each other as to any
of the above causes, which in their judgment may or could be the cause of a delay in the
performance of this Agreement.
2.4. Waiver:
The failure of any party to enforce any of the provisions hereof will not be construed to be a
waiver of the right of such party thereafter to enforce such provisions or any other provisions.
2.5. Governing Law:
This Agreement will be governed for all purposes by the laws of the State of New Jersey. If any
provision of this Agreement is declared void, such provision will be deemed severed from this
Agreement, which will otherwise remain in full force and effect.
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2.6. Jurisdiction; Service of Process:
Any action or proceeding seeking to enforce any provision of, or based on any right arising out
of, this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts
located in the State of New Jersey.
2.7. Costs:
Xxxxxxxxx agrees that if he is held by any court of competent jurisdiction to be in violation,
breach, or nonperformance of any of the terms of this Agreement, then he will pay all costs of such
action or suit, including reasonable attorneys’ fees.
2.8. Section Headings; Construction:
The heading appearing at the beginning of the several sections making up this Agreement have been
inserted for identification and reference purposes only and will not be used in the construction
and interpretation of this Agreement.
2.9. Remedies:
2.10. All rights conferred under this Agreement or by any other instrument or law will be
cumulative and may be exercised singularly or concurrently.
2.11. Amendments:
This Agreement may only be amended, changed, or modified in a writing signed by both parties.
2.12. Relationship of the Parties:
Each party is acting as an independent contractor and not as employee, agent, partner, or joint
venturer with the other party for any purpose. Except as provided in this Agreement, neither party
will have any right, power, or authority to act or to create any obligation, express or implied,
on behalf of the other.
2.13. Counterparts:
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an
original copy of this Agreement, and all of which, when taken together, will be deemed to
constitute one and the same Agreement.
2.14. Entire Agreement:
The parties agree that this Agreement constitutes the complete and exclusive statement of the
agreement between them as to the specific subject matter hereof.
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IN WITNESS WHEREOF, the parties hereby intending to be legally bound, have caused this Agreement to
be executed by their duly authorized representatives.
AGREED TO AND ACCEPTED BY:
| Xxxx X. Xxxxxxxxx | Accelerated Innovation LLC | |||||||||
By:
|
/s/ Xxxx Xxxxxxxxx
|
By: | /s/ Xxxxxxx Xxxxxxxxxx
|
|||||||
Name: |
Xxxx Xxxxxxxxx | Name: | Xxxxxxx Xxxxxxxxxx | |||||||
Date:
|
4/30/2008 | Date: | 4/30/2008 | |||||||
| Uni-Knee, LLC | ||||||||||
By:
|
/s/ Xxxxxxx Xxxxxxxxxx | |||||||||
| (Signature) | ||||||||||
Name:
|
Xxxxxxx Xxxxxxxxxx | |||||||||
Date:
|
4/30/2008 | |||||||||
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EXHIBIT A
| PATENT | ||||||
| KGGD | APPLICATION | DATE | ||||
| No | NO. | FILED | TITLE OF INVENTION | |||
622/2 |
60/658,365) | (03/03/05) | DYNAMIC STABILIZER | |||
622/2A |
11/186,699 | 07/21/05 | VERTEBRAL STABILIZATION USING | |||
| FLEXIBLE RODS | ||||||
622/2B |
11/325,104 | 1/4/06 | METHODS AND APPARATUS FOR | |||
| 60/658,365) | (3/3/05) | VERTEBRAL STABILIZATION USING | ||||
| SLEEVED SPRINGS | ||||||
622/3 |
11/348,594 | 02/07/06 | METHODS AND APPARATUS FOR | |||
| 60/658,313) | (03/03/05) | PROVIDING A RETAINER FOR A | ||||
| BONE STABILIZATION DEVICE | ||||||
622/5 |
60/658,227) | (03/03/05) | PEDICLE SCREW | |||
622/5A |
11/360,708 | 02/23/06 | SPINAL STABILIZATION USING | |||
| BONE ANCHOR AND ANCHOR | ||||||
| SEAT WITH TANGENTIAL WITH | ||||||
| LOCKING FEATURE | ||||||
622/5B |
11/360,707 | 02/23/06 | SPINAL STABILIZATION USING | |||
| BONE ANCHOR SEAT AND CROSS | ||||||
| COUPLING WITH IMPROVED | ||||||
| LOCKING FEATURE | ||||||
622/6 |
11/385,083 | 03/21/06 | METHOD AND APPARATUS FOR | |||
| 60/665,010) | (03/24/05) | BONE STABILIZATION | ||||
622/7 |
11/376,977 | 03/16/06 | INTERVERTEBRAL DISC | |||
| 60/665,009 | (03/24/05) | REPLACEMENT DEVICE | ||||
622/8 |
Non-Provisional No. | 05/26/05 | COATED MATERIAL PEDICLE | |||
| 11/137,963 | SCREW AND ROD | |||||
622/9 |
11/443,425 | 05/30/06 | VERTEBRAL FACET STABILIZER | |||
| 60/688,421 | (06/08/05) | |||||
622/10 |
11/488,817 | 07/18/06 | INTERVERTEBRAL DISC | |||
| REPLACEMENT DEVICE WITH | ||||||
| RESILIENT SUPPORT |
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EXHIBIT B
| PATENT | ||||||
| KGGD | APPLICATION | DATE | ||||
| No | NO. | FILED | TITLE OF INVENTION | |||
622/13A |
11/304,958 | 12/14/2005 | Unicompartmental Knee | |||
| Joint Implant And | ||||||
| Instrument System | ||||||
622/13B |
11/338,159 | 01/23/2006 | Unicompartmental Knee | |||
| Joint Implant And | ||||||
| Instrument System |
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