Exhibit 10.57
COOPERATIVE TECHNOLOGY AGREEMENT
IN THIS AGREEMENT, Jomed International i Helsingborg AB,
having a principal office at Xxxxxxxxxxxxxx 00, X-00000, Xxxxxxxxxxx, Xxxxxx,
("Jomed") and Vista Medical Technologies ("Vista"), a Delaware corporation
having a principal office at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, hereby
agree as follows:
ARTICLE I - BACKGROUND
WHEREAS:
1.1 Vista has products known as Series 8000 Visualization and
Information Systems and certain related products.
1.2 Vista owns and licenses intellectual property ("IP") rights
and technology related to the design, manufacture and operation of its products.
Vista conducts continuing research and development directed to improvements,
modifications and additions to its products.
1.3 Jomed sells devices for interventional cardiology and cardiac
surgery and other thoracic surgical applications, and Jomed has considerable
experience in the development marketing, sale and service of such devices and
systems for such applications.
1.4 Jomed desires an exclusive right of distribution of certain
products made by Vista in certain defined fields and territories corresponding
to Jomed's current and anticipated markets, and Vista is willing to grant to
Jomed such a distribution right pursuant to the terms and conditions of a
certain distribution agreement ("Distribution Agreement") concurrently executed
by the parties.
1.5 Jomed and Vista recognize that application of Vista's products
in Jomed's fields will require development of improved and modified products,
and Vista and Jomed, therefore, have agreed to conduct co-operative research and
development pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, and for other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties mutually
agree as follows:
ARTICLE II - DEFINITIONS
2.1 "Cooperative Development Area" shall mean research and
development on Vista Improvements, integration of Vista Products and Jomed
Products in the Jomed Field and on integration of the Vista Products and Jomed
Products with other appropriate products or technologies which are capable of
being used in the Jomed Field and the Vista Field.
2.2 "Effective Date" shall mean May 1, 2000.
2.3 "Jomed Core Technology" shall mean all patents, trade secrets
and know-how owned by Jomed or its Related Companies on the date of this
Agreement or subsequently developed or acquired by Jomed or its Related
Companies.
2.4 "Jomed Field" shall mean all:
(a) Cardiology, including, without limitation,
interventional cardiology and related interventional
radiological applications.
(b) Cardiothoracic surgery.
2.5 "Jomed Products" shall mean Jomed's and its Related Companies'
products having application in the Jomed Field.
2.6 "Series 8000" shall mean the current version of Vista's
visualization and related information systems for interventional cardiology and
cardiothoracic surgery, together with all associated accessories, software and
disposables specific to such systems, together with any updates, modifications
or new versions thereof.
2.7 "Vista Core Technology" shall mean all patents, trade secrets
and know-how owned by Vista or its Related Companies on the date of this
Agreement or subsequently developed or acquired by Vista or its Related
Companies relating to the Series 8000.
2.8 "Vista Current Products" shall mean the Series 8000 and
related products, including, without limitation, the apparatus and software
listed in Schedule A of the Distribution Agreement.
2.9 "Vista Field" shall mean cardiothoracic surgery.
2.10 "Vista Improvements" shall mean any modified Vista Current
Product and any addition to the Series 8000 product line.
2.11 "Vista Products" shall mean and include Vista Current Products
and any Vista Improvements that subsequently become subject to the Distribution
Agreement pursuant to its terms.
2.12 "Work Plan" shall mean a written summary of the tasks to be
undertaken during a particular calendar year or other specified period in
connection with the conduct of activities contemplated by this Agreement,
together with a budget of the anticipated costs associated therewith, adopted by
the parties in accordance with this Agreement. Each Work Plan will include
reasonably detailed descriptions of the tasks and work to be performed, the
scheduling of tasks and work, the resources required to accomplish the work, the
costs associated with the planned work and whether Vista or Jomed will be
responsible for accomplishing each task.
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2.13 "Related Company" shall mean (a) a corporation, firm or
association which, or an individual who, owns a controlling interest in a party
hereto by stock ownership or otherwise, (b) a corporation, firm or association
in which a party hereto owns a controlling interest by stock ownership or
otherwise, or (c) a corporation, firm or association in which a controlling
interest by stock ownership or otherwise is owned by a corporation, firm or
association which, or an individual who, also owns a controlling interest in a
party hereto by stock ownership or otherwise. A "controlling interest" shall
mean ownership or control of more than 50% of the shares of stock entitled to
vote for the election of directors in the case of a corporation, or more than
50% of the voting power in the case of a business entity other than a
corporation.
ARTICLE III - VISTA RESPONSIBILITIES
3.1 Vista shall work exclusively (except of itself) with Jomed in
the Cooperative Development Area.
3.2 In the calendar year 2000, Vista shall continue to invest in
research and development ("R&D") on its core technology and such improvements as
are appropriate will be incorporated in the Series 8000, according to mutual
agreement with Jomed, taking normal commercial considerations into account.
3.3 In calendar years after 2000 during the term of this
Agreement, Vista shall continue to invest in core technology, but will
additionally agree with Jomed on specific improvements or enhancements to the
Series 8000, or related products, specifically applicable to the Jomed Field.
Such mutually agreed specific improvements or enhancements, detailed in a Work
Plan, will be funded by payment from Jomed to Vista on a schedule also to be
agreed. Such payments by Jomed will not total more than $850,000 over calendar
years 2001 and 2002.
3.4 Vista shall develop a preliminary draft of the Work Plan for
2001 by no later than October 31, 2000, and for each subsequent year during the
term of this Agreement by no later than October 31 of the prior calendar year.
3.5 At its discretion, Vista may disclose Vista Core Technology to
Jomed in furtherance of the purposes of this Agreement.
3.6 Any Jomed Core Technology disclosed to Vista pursuant to this
Agreement shall be used by Vista solely in the performance of its obligations
under the Work Plan and under the Distribution Agreement.
ARTICLE IV - JOMED RESPONSIBILITIES
4.1 Jomed shall work exclusively (except of itself) with Vista in
the Cooperative Development Area.
4.2 Jomed shall periodically meet and confer with Vista as deemed
necessary by the parties to coordinate their respective activities in the
Cooperative Development Area. Jomed
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shall review each preliminary Work Plan submitted by Vista within thirty (30)
days after receipt of such plan.
4.3 At its discretion, Jomed may disclose Jomed Core Technology to
Vista in furtherance of the purposes of this Agreement.
4.4 Any Vista Core Technology disclosed to Jomed pursuant to this
Agreement shall be used by Jomed solely in the performance of its obligations
under the Work Plan and under the Distribution Agreement.
ARTICLE V - CONFIDENTIAL INFORMATION
5.1 "Confidential Information" as used in this Agreement shall
mean all technical or business information disclosed by either party to the
other pursuant to this Agreement that is in tangible form and identified in
tangible form as being confidential and proprietary to the disclosing party or
that is disclosed orally or by demonstration, identified at the time of
disclosure as being confidential and proprietary to the disclosing party, and,
within thirty (30) days after such disclosure, is confirmed in a writing
identified as confidential and proprietary. No information shall be regarded as
Confidential Information if the receiving party can show by competent proof that
such information:
(a) was, at the time of disclosure, already known by the
receiving party, as shown by written records in the
possession of receiving party;
(b) was at the time of disclosure, or subsequently
became, through no fault of the receiving party known
to the general public through publication or
otherwise; or
(c) was, subsequent to disclosure to the receiving party,
lawfully and independently received by the receiving
party from a third party who had the right to
disclose it without restriction.
Specific aspects or details of Confidential Information shall not be deemed to
be within the public domain or in the possession of receiving party merely
because the Confidential Information is embraced by general disclosures in the
public domain or in the possession of receiving party. In addition, any
combination of Confidential Information shall not be considered in the public
domain or in the possession of receiving party merely because individual
elements thereof are in the public domain or in the possession of receiving
party unless the combination and its principles are in the public domain or in
the possession of receiving party.
5.2 Either party, at its discretion, may disclose to the receiving
party any Confidential Information that the disclosing party, in its reasonable
judgment, believes is sufficient to enable the receiving party to perform under
this Agreement.
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5.3 Each party agrees:
(a) to treat as confidential and to preserve the
confidentiality of all Confidential Information
disclosed to it by the other party;
(b) to use any and all Confidential Information disclosed
by the other party solely in connection with
performance under this Agreement and the Distribution
Agreement and for no other purpose;
(c) to make no disclosures of any Confidential
Information to any party other than its officers and
employees having a reasonable need to know; and
(d) to maintain in confidence any information regarding
the nature or scope of any transaction between the
parties hereto, except to the extent such information
must be disclosed pursuant to law, and then only
after notifying the other party of such requirement.
Any obligation imposed by this paragraph 5.3 may be waived in writing by the
disclosing party as to its particular Confidential Information and to a
particular use or disclosure. Any such waiver shall have a one-time effect and
shall not apply to any subsequent situation regardless of its similarity.
5.4 All Confidential Information shall remain the property of the
disclosing party and, upon request of the disclosing party, the receiving party
shall promptly return to the disclosing party all Confidential Information, or
any part or reproduction thereof.
5.5 The obligations of the receiving party and each employee and
officer of the receiving party under this Agreement with respect to Confidential
Information shall expire five (5) years from the date of termination of this
Agreement
ARTICLE VI - WORK PLAN
6.1 The parties shall work together in good faith to approve a
Work Plan for 2001 by no later than October 31, 2000. With respect to each
subsequent calendar year during the term of this Agreement, the parties shall
work together in good faith to adopt a Work Plan by no later than October 31 of
the prior calendar year.
ARTICLE VII - INTELLECTUAL PROPERTY
7.1 Each party shall retain ownership of all patents, copyrights,
trademarks, trade secrets, know-how and Confidential Information (collectively
"IP") owned by it on the Effective Date of this Agreement.
7.2 Any invention or original work made during the performance of
the Work Plan or any other development work performed in the Cooperative
Development Area during the term of this Agreement, regardless of the employment
of the inventors or creators, that is derived solely
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from Vista Core Technology shall be owned solely by Vista (hereafter "Vista
Invention"). All IP directed to a Vista Invention shall be owned by Vista. To
the extent any officers, employees, contractors or agents (collectively,
"Employees") of Jomed were involved in making a Vista Invention, Jomed shall
cause such parties to assign their interest in such Vista Invention, and
associated IP, to Vista. Further, Jomed shall have a non exclusive license to
use any invention created by such Employees as prescribed under the legislation
of the European Community.
7.3 Any invention or original work made during performance of the
Work Plan or any other development work performed in the Cooperative Development
Area during the term of this Agreement, regardless of the employment of the
inventors or creators, that is derived solely from Jomed Core Technology shall
be owned solely by Jomed (hereafter "Jomed Invention"). All IP directed to a
Jomed Invention shall be owned by Jomed. To the extent Vista Employees were
involved in making a Jomed Invention, Vista shall cause such parties to assign
their interest in such Jomed Invention, and associated IP, to Jomed. Further,
Vista shall have a non exclusive license to use any invention created by any
officers, employees, contractors or agents of Vista as prescribed under the
legislation of the European Community.
7.4 In the event Employees of either Vista and/or Jomed, in
performance of the Work Plan under this Agreement, make an invention or original
work that is not derived solely from Vista Core Technology or Jomed Core
Technology ("Joint Invention"), such Joint Invention shall be owned jointly by
Vista and Jomed. Each party agrees to make full disclosure to the other party of
any such Joint Invention and any background information related thereto. The
parties agree to cooperate with each other in obtaining and maintaining IP
direct to such Joint Invention.
7.5 Each party agrees to execute and deliver all documents
reasonably necessary to carry out the intentions of this Article VII.
ARTICLE VIII - FORCE MAJEURE
8.1 "Force Majeure" shall mean any event or condition, not
existing as of the date of signature of this Agreement, not reasonably
foreseeable as of such date and not reasonably within the control of either
party, which prevents, in whole or in material part, the performance by one of
the parties of its obligations hereunder, such as act of God, act of government,
war or related actions, civil insurrection, riot, sabotage, strike or other
labor disturbance, epidemic, fire, flood, windstorm, and similar event.
8.2 Upon giving notice to the other party, a party affected by an
event of Force Majeure shall be released without any liability on its part from
the performance of its obligations under this Agreement, except for the
obligation to pay any amounts due and owing hereunder, but only to the extent
and only for the period that its performance of such obligations is prevented by
the event of Force Majeure.
8.3 During the period that the performance by one of the parties
of its obligations under this Agreement has been suspended by reason of an event
of Force Majeure, the other party may likewise suspend the performance of all or
part of its obligations hereunder to the extent that such suspension is
commercially reasonable.
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ARTICLE IX - TERM AND TERMINATION
9.1 This Agreement shall commence on the Effective Date and may be
terminated by either party upon providing at least thirty (30) days written
notice to the other upon the earlier of (i) the expiration or termination of the
Distribution Agreement or (ii) upon the termination of Jomed's rights to
distribute Vista Products on an exclusive basis in the fields identified in the
Distribution Agreement.
9.2 The provisions of paragraph 5.5 and Article VII hereof shall
survive the expiration or termination of this Agreement.
ARTICLE X - MISCELLANEOUS
10.1 This Agreement does not make either party the employee, agent
or legal representative of the other for any purpose whatsoever. Neither party
is granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party. In fulfilling its obligations pursuant to this Agreement, each party
shall be acting as an independent contractor.
10.2 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and the successors or permitted assigns of the parties
hereto. The Agreement is personal to the parties and cannot be assigned by
either party without the prior written consent of the other party, provided,
however, that Jomed may assign this Agreement and all rights and obligations to
a Related Company of Jomed or to any person who succeeds to substantially all of
the assets and business of Jomed to which this Agreement relates.
10.3 This Agreement and the Exclusive Distribution Agreement
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements whether written or oral
relating thereto.
10.4 This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, including all matters of
construction, validity, performance and enforcement, without giving effect to
principles of conflict of laws.
10.5 All of the representations, warranties, and covenants made in
this Agreement, and all terms and provisions hereof intended to be observed and
performed by the parties after the termination hereof, shall survive such
termination and continue thereafter in full force and effect.
10.6 The failure of any party hereto to enforce at any time any of
the provisions of this Agreement shall in no way be construed to be a waiver of
any such provision, nor in any way to affect the validity of this Agreement or
any part thereof or the right of the party thereafter to enforce each and every
such provision. No waiver of any breach of this Agreement shall be held to be a
waiver of any other or subsequent breach. Any amendment to this Agreement shall
be in writing and signed by the parties hereto.
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10.7 This Agreement may be executed in any number of counterparts,
each of which shall be deemed as original and all of which together shall
constitute one instrument.
10.8 The titles and headings to Sections herein are inserted for
the convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement. This Agreement shall be
construed without regard to any presumption or other rule requiring construction
hereof against the party causing this Agreement to be drafted.
10.9 Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties to this Agreement or their
respective successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement. Except as specifically
granted, nothing in this Agreement shall be construed as a grant by one party to
the other of a license under any IP rights of the one party.
10.10 All notices or other communications to a party required or
permitted hereunder shall be deemed given if in writing and delivered personally
or sent by telecopy (with confirmation of transmission) or certified mail
(return receipt requested) to such party at the following addresses (or at such
other addresses as shall be specified by like notice):
if to Jomed to:
Jomed International i Helsingborg AB
Xxxxxxxxxxxxxx 00
X-00000 Xxxxxxxxxxx
Xxxxxx
Attention: Antti Ristinmaa
Chief Financial Officer
Fax (00) 00 000 0000
and if to Vista to:
Vista Medical Technologies, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx
FAX (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
FAX (000) 000-0000
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Jomed or Vista may change their respective above-specified recipient and/or
mailing address by notice to the other party given in the manner herein
prescribed. All notices shall be deemed given on the day when actually delivered
as provided above (if delivered personally or by telecopy) or on the day shown
on the return receipt (if delivered by mail) or on the next day following
delivery to a reputable overnight carrier.
10.11 In the event any provision of this Agreement shall be declared
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10.12 Each of the parties to this Agreement hereby agrees with the
other parties hereto that, except as may be required to comply with the
requirements of applicable law or any exchange upon which such party's capital
stock is listed or traded, no press release or similar public announcement or
communication will be made or caused to be made concerning the execution or
performance of this Agreement unless specifically approved in advance by Jomed
and Vista. The foregoing shall not restrict either party's communications with
employees, customers or private investors.
10.13 Each party agrees to execute and deliver without further
consideration any further applications, licenses, assignments or other
documents, and to perform such other lawful acts as the other party may
reasonably require to fully secure and/or evidence the rights or interests
herein.
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IN WITNESS WHEREOF, each of the parties has caused this Sales Agreement
to be executed in the manner appropriate to each, as of the date first above
written.
VISTA MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxxxx XxXxxxx
-----------------------------
Title: V.P. Finance, CFO
--------------------------
Date: May 19, 2000
--------------------------
JOMED
By:
-----------------------------
Title:
--------------------------
Date:
--------------------------
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SCHEDULE A
CURRENT PRODUCT CONFIGURATIONS
VISTA SERIES 8000, ADVANCED VISUALIZATION AND INFORMATION SYSTEM
STANDARD EQUIPMENT
SERIES 8000 NTSC SERIES 8005 PAL
(110V) (220V)
---------------------------- ------------------------- ------------------------------------------------------------- -------
PART # PART # DESCRIPTION QTY
---------------------------- ------------------------- ------------------------------------------------------------- -------
8075-1 8076 CardioConsole (Inc Shelf for lightsource) 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
5131.011 5131.001 Wolf Lightsource, 300 Watt Xenon 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8170-1 8170P-1 3D/2D CardioController II 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8180 8180P CardioView Processor 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8176 8176 Head Mounted Display (HMD) with Ext. cable 2
---------------------------- ------------------------- ------------------------------------------------------------- -------
8271 Sony 13" Analog Monitor 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8190 8190P StereoScope Camera 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8191-01 8191-01 Stereo Endoscope 10mm, 0 degree 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8191-02 8191-02 Stereo Endoscope 10mm, 30 degree 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8054-1 Liquid Light Guide 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
SPECIAL ORDER MINI-CAMERA PACKAGE
---------------------------- ------------------------- ------------------------------------------------------------- -------
8100 8100P CardioCamera 3D - 50mm 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8050 8050 CardioLight (rack mounted) 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8060 8060 Lamp Housing Module 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8054 8054 CardioCamera Light Guide (single fiber) 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8110-02 8110-02 Thoracic 3D holder (malleable) 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8120-01 8120-01 Gooseneck 3D Arm 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8120-02 8120-02 Gooseneck 3D Holder for Gooseneck Arm 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8150-03 8150-03 Universal Clamp 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
SPECIAL ORDER MONO, ENDOCAM PACKAGE
---------------------------- ------------------------- ------------------------------------------------------------- -------
8160 8160P 2D Endoscope Camera Head 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
8032-1 8032-1 32mm Endoscope Coupler 1
---------------------------- ------------------------- ------------------------------------------------------------- -------
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