EXHIBIT 10.11
ROYALTY AGREEMENT
This agreement is entered into this 1st day of June, 1976 by and
between Spectrum Medical Industries, Incorporated ("Herein after referred to as
SMII") and Xxx X. Xxxxxxxx herein referred to as "RTE", an individual, with
reference to the following facts:
A. RTE has invested and will continue to invest considerable personal
time, effort and expense in developing products and applications for patentable
lab products processes and services. Herein after referred to as "PLPPAS".
B. SMII desires to acquire all of RTE's rights in and to such as it
applies to devices, membranes, membrane applications, labware and other useful
lab products. THEREFORE, in consideration of the forgoing permises and the
mutual trade secret covenants set forth herein, the parties hereby agree as
follows:
1. TRANSFER OF INTEREST. RTE hereby transfers, grants and conveys to
SMII all of his rights, titles and interests in and to the patentable Lab
products, processess and services he may have on the date hereof and for all
future rights for a period of 29 years or the maximum legal time such grants are
allowed under all applicable California and USA Federal Laws. RTE warrants that
he is not aware of any claims or potential claims in or to such PLPPAS
application by any third parties.
2. ROYALTY. SMII hereby agrees to pay RTE a royalty of 7.0% of the Net
Sales of all PLPPAS for and all net out-of-pocket expense reimbursments derived
from contracts for research and development awarded to SMII by any third party
transaction in all PLPPAS, based upon invoices for such research and development
services. Such royalty shall be payable only upon sales and services invoiced
during the period 1976 through 2005, whereupon such obligation to pay royalties
shall terminate. This agreement applies to any and all applicable taxes,
countries,...
3. TIME AND MARINER OF ROYAL PAYMENTS. Each pay period, SMII shall
submit to RTE a fixed estimated amount of the said 7.0% royalty each normal pay
period and within thirty days of the end of the fiscal year the exact account
will be adjusted to reflect and exact 7% accounting of applicable net sales.
"Net Sales" shall mean the gross sales price of all products and services billed
for use in the Laboratory and defined as above. Less all discounts, return
allowances, transportation expenses, export duties, excise and other sales taxes
and other similar governmental charges which SMII is required to pay or absorb.
4. RETENTION OF RECORDS. SMII agrees to retain records relating to the
Net Sales and revenues derived from all sales for at least ten years and to have
then available for inspection by RTE or his representatives at all reasonable
times for sole purpose of verifying RTE's reports and payments under this
agreement.
5. DEVELOPMENT OF OTHER NON-RELATED LABORATORY PRODUCTS. Nothing
contained in this agreement shall be interpreted as restricting any party with
respect to the development of non-related applications, PLPPAS for other than
those described in paragraph 1. above.
6. CONFIDENTIALITY. RTE agrees that the list of suppliers of products
used in the development of all PLPPAS which is the subject of this agreement
constitutes confidential and proprietary information of SMII and has not been
disclosed to parties other than to representatives of SMII. RTE agrees to use
his best effort to maintain the confidentiality of said list of suppliers.
7. NOTICES. Any notice, payment or other communication ("notices")
provided for or permitted to be given herein must be in writing and may be given
or served by depositing the same in the United States mail, addresses to the
party to be notified, with postage prepaid. Notices transmitted by mail in the
manner provided hereinabove shall be effective on the 3rd business day after
deposit in the mail. For the purposes of such notices to the party as
hereinafter provided:
(a) If to Spectrum Medical Industries, Inc.
Spectrum Medical Incorporated
00000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
(b) If to Xxx X. Xxxxxxxx
Xxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
8. SUCCESSOR AND ASSIGNS. All of the terms and provisions of the
Royalty Agreement shall be binding upon and inure to the benefit of and be
enforceable by RTE and SMII and their respective successors and assigns.
9. CHOICE OF LAW. It is the intention of the parties that internal laws
of California shall govern the validity of this Agreement, the construction of
its terms and interpretation of the rights and duties of the parties.
10. INTERGRATED AGREEMENT: AMENDMENTS. The foregoing constitutes the
entire agreement between the parties on the subject hereof, there are no other
agreements understandings
between the parties of this subject matter. This Royalty Agreement may not be
amended except by written instruments signed by both parties hereto.
11. WAIVERS. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any kind of the other provisions, whether
or not similar, not shall waiver constitute continuing waiver. No waiver shall
be binding unless executed in writing by the party marking such waiver.
12. SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall be invalid, illegal or unenforceable, all other
provisions hereof shall be given effect separately therfrom and shall not be
affected thereby.
13. RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
shall be construed to create any relationship of agency or partnership among
Spectrum Medical and Spectrum Separations, nor shall this Agreement be
considered to create a joint venture.
SPECTRUM MEDICAL INDUSTRIES, INC.
BY /s/ Xxx X. Xxxxxxxx
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PRESIDENT & CEO
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Name and Title
XXX X. XXXXXXXX
BY /s/ Xxx X. Xxxxxxxx
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XXX X. XXXXXXXX
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