EXHIBIT 10
----------
NOTE: THIS DOCUMENT OMITS CERTAIN INFORMATION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED INFORMATION HAS BEEN FILLED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. THE LOCATION OF THE OMITTED INFORMATION
IS INDICATED HEREIN BY AN ASTERISK.
EXCLUSIVE LICENSE AGREEMENT
---------------------------
This Agreement is made on the last date executed by a party ("Effective
Date"), by and between Medjet, Inc., a Delaware corporation with a principal
place of business at 0000 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000
("MEDJET") and Nestle S.A., a Swiss business entity, having a place of business
at Xxxx Xxxxxxx 000, Xxxxxx Xxxxxx, XX-0000, Xxxxx, Xxxxxxxxxxx ("NESTLE").
WITNESSETH:
WHEREAS, MEDJET is the owner or otherwise controls and has the right
to grant licenses and assignments of their interest in certain Waterjet
Technology defined hereinafter,
WHEREAS, MEDJET is the owner of U.S. Patent No. 5,556,406 claiming a device
using the Waterjet Technology;
WHEREAS, NESTLE wishes to obtain an exclusive license in the field of
corneal refractive surgery to said patent and any future patents relating to the
Waterjet Technology;
NOW, THEREFORE, in consideration of the following mutual promises and
obligations, the parties agree as follows:
ARTICLE I
---------
DEFINITIONS AND INTERPRETATION
------------------------------
Section 1.01 Defined Terms.
---------------------------
Unless the context otherwise requires, the following terms shall have the
following meanings for all purposes of this Agreement, such definitions to be
equally applicable to both the singular and plural forms and masculine, feminine
and neuter gender of any of the terms defined:
"Waterjet Technology" means the use of high pressure water to cut, dissect,
remove, ablate or otherwise manipulate corneal tissue, including the technology
and devices described in U.S. Patent No. 5,556,406, and any continuations,
divisions,
1
continuation-in-part, substitutes, reissues, re-examinations and foreign
counterparts thereof.
"Know-How" means the trade secrets, manufacturing processes,
specifications, formulae, techniques, practices and technical data relating to
the manufacturing and packaging of Licensed Products; scientific, analytical and
clinical data; and all other technical and scientific information relating to
the Licensed Products, in each case which are or will be owned by MEDJET and
which may be useful in enabling NESTLE to obtain applicable regulatory
approval(s) and to manufacture, use, and sell Licensed Products.
"Licensed Patent Rights" means U.S. Patent No. 5,556,406, and any other
patent or patent application assigned to, owned by, applied for or licensed to
MEDJET which includes one or more Valid Claims that encompass either the
Waterjet Technology or the use of the Waterjet Technology in performing corneal
refractive surgery, and any continuations, divisions, continuation-in-part,
substitutes, reissues, re-examinations and foreign counterparts of such patent
application(s) or any patent(s) thereon.
"Licensed Products" means all devices, handpieces and disposables that fall
within one or more Valid Claims contained in the Licensed Patent Rights. NESTLE
may, at its sole discretion, create a pak or pak(s) related to specific surgical
procedures using the Waterjet Technology ("Waterjet Paks"). NESTLE may sell
Waterjet Paks or other Licensed Products in combination or conjunction with
other NESTLE paks or NESTLE products ("NESTLE Products"), and no royalty shall
be paid on such NESTLE Products. In the event that NESTLE sells Waterjet Paks
or other Licensed Products in combination or conjunction with NESTLE Products,
royalties on such included, but not separately invoiced, Waterjet Paks or other
Licensed Products shall be paid based on NESTLE's average selling price for
stand alone Waterjet Paks or other Licensed Products. In the event that no
stand alone Licensed Products are sold, then the royalty will be paid on the
incremental value of the Licensed Products sold in combination or conjunction
with other NESTLE paks or NESTLE products, such incremental value to be mutually
agreed between the parties and shall be based on similar NESTLE products. In no
event shall the portion of the sale attributed to the Licensed Product be less
that the value of the Licensed Product when sold alone.
"Licensed Territory" means the entire world.
"Net Selling Price" means the gross selling price of the Licensed Products
reduced by (to the extent included in the gross selling price): (i) sales
commissions paid on international sales through third party brokers and/or
distributors; (ii) transportation charges or allowances, including air freight;
(iii) sales, use or value added taxes; (iv) normal and customary trade or volume
discounts; (v) any returns or allowances granted in lieu of returns; and (vi)
rebates paid to buying cooperatives.
2
All deductions from gross selling price shall be consistent with NESTLE's prior
business practices for similar products. When calculating Net Selling Price,
goods placed in inventory or on consignment shall not be deemed sold until
invoiced to the customer. NESTLE's intracompany transfers or sales to subsidiary
or affiliated companies shall not be regarded as sales for the purpose of this
Agreement. Sales shall be deemed to have been made when title transfers to a
third party purchaser.
"Net Sales" shall mean the aggregate Net Selling Price for all Licensed
Products.
"Valid Claim(s)" means any claim of an issued patent contained in the
Licensed Patent Rights that has not been held invalid or unenforceable by the
unappealable or unappealed decision of a court of competent jurisdiction.
ARTICLE II
----------
GRANT OF LICENSE
----------------
Section 2.00 Grant of Exclusive Patent License.
-----------------------------------------------
MEDJET hereby grants to NESTLE and NESTLE hereby accepts from MEDJET upon
the terms and conditions herein specified the exclusive right and license in the
field of corneal refractive surgery under the Licensed Patent Rights and Know-
How to make, use, offer for sale and sell Licensed Products in the Licensed
Territory. This license shall include the right to grant sublicenses to
NESTLE's subsidiaries and affiliates.
Section 2.01 Further Obligations of the Parties.
-----------------------------------------------
NESTLE shall use its Best Efforts to register, manufacture, promote and
market the Licensed Products in all territories that NESTLE reasonably deems
commercially viable. For purposes of this Agreement, "Best Efforts" shall mean
the diligence, type, extent and intensity of efforts that NESTLE applies to
successfully manufacture and market/sell worldwide, products that NESTLE has
identified as being important to NESTLE's business. During the term of this
Agreement, NESTLE may conduct or cause to be conducted activities directed
toward the development and/or marketing of competing refractive surgical
products provided NESTLE does not preferentially promote such competing
product(s).
MEDJET shall diligently develop the Licensed Products to meet the
specifications provided by MEDJET to NESTLE and incorporated herein as attached
Exhibit A. MEDJET shall provide NESTLE with reasonable levels of technical
assistance, training and support as may be required to ensure the successful
introduction, manufacture and sale of Licensed Products. MEDJET shall also
provide
3
support for NESTLE's efforts at manufacturable design, cost reduction or
marketing for Licensed Products for mutually agreed upon compensation.
MEDJET will keep NESTLE informed as to MEDJET's activities in the
ophthalmic and otic fields and hereby grants NESTLE a right to first refusal to
the distribution rights to other ophthalmic or otic products developed by
MEDJET. NESTLE shall respond promptly to such offers made by MEDJET.
ARTICLE III
ROYALTIES, RECORDS AND REPORTS
Section 3.00 Licensing Fee.
---------------------------
In exchange for the exclusive license granted hereunder, NESTLE shall pay
MEDJET a non-refundable licensing fee of * Dollars ($ * ),
------------- -------------
one half (1/2) of which is payable immediately upon signing this Agreement
with the remaining one half (1/2) payable upon: 1) * ; and 2)
-------------
jointly designed experimental verification in cadaver eyes or animal eyes
that the Licensed Product can achieve single pass targeted LASIK equivalent
stromal removal without unacceptable thermal damage meeting the refractive range
in the specifications listed on Exhibit A.
In addition, NESTLE shall pay MEDJET an additional non-refundable licensing
fee of * Dollars ($ * ) upon the successful
----------------- ----------------
completion (to NESTLE's reasonable satisfaction) no later than December 31,
2002, of clinical studies jointly designed by MEDJET and NESTLE demonstrating
that the HydroBlade keratome for refractive surgery meets all of the
specifications on attached Exhibit A. Such pre-FDA clinical study to include
blind human eyes and a limited number of healthy human eyes and will be
conducted by MEDJET.
All determinations of whether experimental verification has been achieved
or whether the completion of any clinical studies has been successful or whether
the Licensed Product meets the specification on attached Exhibit A shall be
determined solely by NESTLE, acting reasonably, using measurement methodology
mutually agreed to by NESTLE and MEDJET.
____________________
* Information omitted pursuant to a request for confidential treatment.
4
Section 3.01 Royalties.
-----------------------
a) Royalty. In addition to the licensing fee set forth in Section 3.00,
-------
NESTLE will pay MEDJET a running royalty of:
i) * percent ( * %) of the Net Sales of Licensed Products if the
---- ---
cumulative annual Net Sales of Licensed Products are less than or equal to
Twenty-Five Million Dollars ($25,000,000.00); or
ii) * percent ( * %) of the Net Sales of Licensed Products if
---- ---
the cumulative annual Net Sales of Licensed Products are greater than
Twenty-Five Million Dollars ($25,000,000.00) but less than or equal to
Seventy-Five Million Dollars ($75,000,000.00); or
iii) * percent ( * %) of the Net Sales of Licensed Products if
---- ---
the cumulative annual Net Sales of Licensed Products are greater than
Ninety-Six Million Four Hundred Thousand Dollars($96,400,000.00); or
iv) a lump sum of * Dollars ($ * )
------------ ------------- if the
cumulative annual Net Sales of Licensed Products are greater than Seventy-Five
Million Dollars ($75,000,000.00) but less than or equal to Ninety-Six Million
Four Hundred Thousand Dollars ($96,400,000.00).
In the event that Licensed Products are sold in a country where Licensed
Patent Rights do not exist and a competitive waterjet product is being sold in
that country, then the running royalty rate shall be computed as set forth above
and then the royalty due to sales in non-patent countries shall be reduced by
one-half (1/2) on Net Sales in such country. (e.g., If cumulative Net Sales in
patent and non-patent countries is $25,500,000, with $10,000,000 coming from
non-patent countries, the total royalty dues shall be * % of $15,500,000
------
and * % of $10,000,000. In no event shall the reduction in royalties for
------
sales in non-patent countries result in the total royalty payment being greater
than the total royalty payment that would have been due if no reduction had been
made for sales in non-patent countries.
If MEDJET fails to deliver to NESTLE a corneal refractive surgery product
that meets all of the specifications on attached Exhibit A by December 31, 2002,
then the running royalty rates stated above shall be reduced retroactively by an
amount to be agreed upon by the parties.
_____________________
* Information omitted pursuant to a request for confidential treatment.
5
b) Minimum Royalties. To maintain exclusivity, the running royalty
-----------------
specified in Section 3.01(a) shall be subject to a minimum annual royalty of
* Dollars ($ * ) beginning in 2000, paid quarterly. This
------------ ------------
minimum annual royalty shall be payable regardless of whether NESTLE has
commercially marketed any Licensed Product but shall be deducted from, and fully
credited against, any running royalty earned under Section 3.01(a), provided
that MEDJET has demonstrated progress (in NESTLE's sole opinion) in achieving
the specification in attached Exhibit A.
In the event that, by December 31, 2002, MEDJET has failed to deliver to
NESTLE a product that meets all of the specifications on attached Exhibit A,
then the minimum annual royalties specified above shall be reduced to
* Dollars ($ * ).
----------- ------------
Beginning in the year 2001, in the event that NESTLE fails to pay the
minimum royalty due in any given year: 1) the exclusive license granted in
Section 2.00 shall become non-exclusive; and 2) MEDJET shall be free to grant
other non-exclusive licenses to the Licensed Patent Rights and Know-How to third
parties; and 3) NESTLE shall no longer be required to make minimum royalty
payments under this Section 3.01(b); and NESTLE and MEDJET shall, at the request
of MEDJET, negotiate in good faith, the termination of this Agreement, such
termination to include adequate mutually agreed upon compensation to NESTLE.
c) Unblocking License. In the event that NESTLE reasonably determines,
------------------
in its sole discretion, that a license is required from any third party in order
for NESTLE to make, use or sell Licensed Products, the royalties payable to
MEDJET under this Section 3.01 shall be reduced accordingly. The provisions of
this Section 3.01(c) shall not apply to any changes to the Licensed Products
made by NESTLE unless such change(s) were require to make the Licensed Product
meet the specification on attached Exhibit A.
d) Payment Schedule. Royalties due under Section 3.01 above shall be
----------------
paid by NESTLE to MEDJET in United States dollars within sixty (60) days after
the end of each calendar quarter. Partial calendar quarters, if any, shall be
treated as calendar quarters. If NESTLE fails to make any payment within the
prescribed period, such unpaid amount shall bear interest at an annual rate of
five (5) percentage points above the prime lending rate quoted by Citibank,
N.A., New York, New York on the date such payment is due, such interest being
payable from the date that the payment was due until the date the payment is
actually made.
_____________________
* Information omitted pursuant to a request for confidential treatment.
6
Section 3.02 Records.
--------------------
NESTLE shall keep full, true and accurate books of account containing all
particulars which may be necessary for the purpose of showing the amount payable
to MEDJET by way of royalty as aforesaid. The books of account shall be kept at
NESTLE's principal place of business and the books of the supporting data
therefor shall be open at all reasonable times for two (2) years following the
end of a calendar year to which they pertain to the inspection of an independent
certified public accountant retained by MEDJET for the purpose of verifying
NESTLE's royalty statement or NESTLE's compliance in any respect with this
Agreement. Any such accountant shall sign an appropriate agreement prepared by
NESTLE to hold in confidence any and all information acquired in the course of
performing such inspection for MEDJET.
Section 3.03 Reports.
--------------------
NESTLE, within sixty (60) days after the close of each of its fiscal
quarters, shall deliver to MEDJET a true and accurate report giving such
particulars of the business conducted by NESTLE during the preceding three
months as are pertinent to an accounting for royalty under this Agreement.
Simultaneously with the delivery of each report, NESTLE shall pay to MEDJET
the royalty accrued for the period covered by such report. If no royalties are
due on the sale of Licensed Products, it shall be so reported.
Section 3.04 Tax Withholding.
----------------------------
NESTLE shall have no liability, and nothing shall be construed to create
any liability, for any income, franchise or similar taxes (including, but not
limited to, withholding taxes) which are the legal obligation of MEDJET, which
may be required to be paid or collected by NESTLE, and MEDJET agrees to pay same
and indemnifies NESTLE from any claim for payment of such taxes.
All payments to MEDJET required under this Agreement shall be made to the
name or account of MEDJET at the United States address designated by MEDJET.
Any and/or all of such payments shall be subject to such withholding tax laws,
rules and regulations as may be applicable and, if such laws, rules or
regulations require a withholding to be made, such payments(s) will be reduced
by such amount(s) and the payment of the reduced amount(s) shall constitute full
compliance with this Agreement. NESTLE shall provide to MEDJET appropriate
proof of payment of any and all such taxes withheld. To the extent that any
and/or all of such payments shall be subject to any currency control or other
restrictions, NESTLE's compliance with such currency control or other
restrictions shall not constitute a breach of this Agreement.
7
Section 3.05 Health Registrations.
----------------------------------
NESTLE shall be responsible for obtaining and maintaining all governmental
approvals to sell Licensed Products in the markets that NESTLE decides to enter
and shall assume all related costs. MEDJET will cooperate with NESTLE in
seeking regulatory approval of Licensed Products.
ARTICLE IV
----------
TERM AND TERMINATION
--------------------
Section 4.00 Term.
-----------------
This Agreement shall have a term beginning on the Effective Date and
terminating on the date that the last patent contained in the Licensed Patent
Rights expires. In addition, NESTLE may terminate this Agreement upon three (3)
months written notice to MEDJET, provided all royalties due under Section 3.01
have been paid.
Section 4.01 Bankruptcy.
------------------------
If NESTLE shall become bankrupt or insolvent and/or the business of NESTLE
shall be placed in the hands of a receiver, assignee or trustee whether by the
voluntary act of NESTLE or otherwise, this Agreement shall terminate
immediately.
Section 4.02 Other Default.
---------------------------
Upon the breach of or default under this Agreement by NESTLE or MEDJET, the
non-breaching party may terminate this Agreement by providing sixty (60) days
written notice via certified mail to the breaching party. The notice shall
become effective at the end of the sixty-day period after actual receipt of the
notice by the breaching party unless during the period, the breach or default is
cured.
Section 4.03 Effect of Termination.
-----------------------------------
Upon termination of this Agreement for any reason, NESTLE may continue to
sell in the ordinary course of business for a period of one hundred and eighty
(180) days reasonable quantities of Licensed Products that are fully
manufactured and in NESTLE's normal inventory at the date of termination,
provided any royalties due under Section 3.01 are paid to MEDJET for such
Licensed Products.
Upon termination of this Agreement by NESTLE for cause, any unamortized
advance royalty paid by NESTLE to MEDJET under Section 3.01(b) shall be refunded
immediately by MEDJET.
8
Upon termination of this Agreement by MEDJET for cause, NESTLE shall assign
to MEDJET any health registrations or government approvals for Licensed Products
owned by NESTLE.
ARTICLE V
---------
NOTICES AND ADDRESSES
---------------------
Section 5.00 Notices.
--------------------
Any written communication, notice, report or payment shall be addressed and
mailed to the addressed party at the appropriate one of the following addresses:
NESTLE: Nestle S.A.
Xxxx Xxxxxxx 000
Xxxxxx Xxxxxx, XX-0000
Xxxxx, Xxxxxxxxxxx
MEDJET: Medjet, Inc.
President, COO
0000 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Either party may change its mailing address for the purpose of this
Agreement by giving the other party notice of such change fifteen (15) days
prior to the date upon which the change is to become effective. All written
communications, notices, reports or payments shall be sent by first-class mail,
postage prepaid and certified.
ARTICLE VI
----------
PATENT PROSECUTION
------------------
Section 6.00 Patent Prosecution Expenses.
----------------------------------------
The expenses of preparing, prosecuting and maintaining the Licensed Patent
Rights shall be solely the responsibility of MEDJET. MEDJET shall add to or
maintain the Licensed Patent Rights when there is a demonstrated economic
incentive to MEDJET to do so, including foreign countries and new technologies.
Section 6.01 Ownership of Improvements in Know-How and the Waterjet
--------------------------------------------------------------------
Technology.
----------
The definition of Know-How and the Waterjet Technology shall be amended
automatically to include any future improvements in the Waterjet Technology or
Know-How developed, owned or controlled in any way by MEDJET. Any future
9
improvements in the Waterjet Technology or Know-How developed solely by NESTLE
shall be NESTLE's sole property, and MEDJET shall have no ownership interest in
any such future improvements in the Waterjet Technology or Know-How developed by
NESTLE; however, NESTLE hereby grants MEDJET a non-exclusive, royalty-free
license outside of the fields of ophthalmology and otorhinolaryngology to use
such NESTLE-owned future improvements in the Waterjet Technology or Know-How
developed by NESTLE.
ARTICLE VII
-----------
INFRINGEMENT
------------
Section 7.00 Notices.
---------------------
If either party hereto becomes aware that any person is, or may be,
infringing the Licensed Patent Rights, that party shall immediately inform the
other of the infringement, in writing.
Section 7.01 Prosecution of Actions.
------------------------------------
MEDJET shall have the right but not the obligation to initiate and
prosecute at its own expense and for its sole benefit any action for
infringement of any of the Licensed Patent Rights. MEDJET shall also have the
right but not the obligation of conducting the defense against any action for
declaratory relief asserting the invalidity or non-infringement of the Licensed
Patent Rights brought by a third party against NESTLE and/or MEDJET. Should
MEDJET fail to institute such proceedings within ninety (90) days from receipt
by MEDJET of written notice from NESTLE of the existence of infringement or
within thirty (30) days from receipt of service of process from a third party,
NESTLE may, at its own expense, prosecute any such action in the name of MEDJET
and if NESTLE elects to pursue such action, NESTLE shall retain seventy-five
percent (75%) and MEDJET shall retain twenty-five percent (25%) of any moneys
collected through such action after deducting all costs and expenses, including
attorney fees, incurred by NESTLE in pursuing such action. Except as provided
above, MEDJET shall not be responsible for any legal expenses of NESTLE in
connection with the prosecution of any action contemplated hereby; however,
MEDJET may, at its own expense, participate in and be represented by its own
counsel in any action brought by NESTLE.
Section 7.02 Cooperation.
-------------------------
MEDJET and NESTLE agree to join in any legal action covered by Section 7.01
hereof where such joinder is necessary to permit the action to proceed. Any
settlement of any legal action covered by Section 7.01 hereof shall be mutually
agreed upon by the parties hereto, and neither party shall withhold unreasonably
such agreement.
10
ARTICLE VIII
------------
CONFIDENTIALITY
---------------
During the term of this Agreement, either party may disclose to the other
party confidential information in the nature of trade secrets. Accordingly, all
information received by either party, directly or indirectly incident to this
Agreement, shall be held in strictest confidence, and the receiving party shall
not either directly or indirectly disclose or use, except in performance of its
obligations under this Agreement, any such information of any kind or character
as may be disclosed or otherwise imparted to the receiving party or as may be
developed during the course of this Agreement, and that all such information
shall be held in the strictest confidence. The foregoing obligations of
confidentiality and non-use shall remain in effect for a period of three (3)
years from the date of disclosure, and shall survive the expiration or
termination of this Agreement.
The obligations of confidence and non-use assumed by MEDJET and by NESTLE
hereunder shall not apply to:
(a) information which at the time of disclosure is in the public domain;
or
(b) information which thereafter lawfully becomes a part of the public
domain other than through disclosure by or through the receiving
party; or
(c) information which is already in the possession of the party receiving
same as shown by its written record; or
(d) information which is lawfully disclosed to either party by a third
party not under an obligation of confidentiality to the disclosing
party with respect to said Confidential Information; or
(e) information which is subsequently developed by an employee or agent
of the receiving party without actual knowledge of the disclosure;
or
(f) information which the receiving party is required by law to disclose,
provided that the receiving party gives the disclosing party
reasonable notice of its intent to disclose such information.
11
ARTICLE IX
----------
MISCELLANEOUS
-------------
Section 9.00 Indemnification.
-----------------------------
NESTLE shall defend, indemnify and hold MEDJET, its officers, directors,
employees, agents, representatives, successors and designees harmless against
all claims alleging that any Licensed Product sold by NESTLE does not have the
approval of the applicable regulatory agency or any defect in materials,
workmanship or manufacture of Licensed Products sold under this Agreement or any
breach by NESTLE of its obligations under this Agreement and shall bear all
costs of defending such actions.
MEDJET agrees to make its employees and agents available as expert
witnesses at a mutually agreed upon rate to provide deposition and/or trial
testimony concerning the design and development of such products and to
otherwise assist NESTLE in preparing the defense of such product liability
actions, but responsibility for managing such litigation shall rest solely with
NESTLE.
Section 9.01 Assignability
---------------------------
This Agreement, or any of the rights or obligations created herein, may not
be assigned, in whole or in part, by either party, without the express, written
permission of the other party, such permission not to be withheld unreasonably
and permission shall be presumed to be granted thirty (30) days following
notice; however, this Agreement shall be assignable by either party without the
consent of the other party only to an affiliate or to the successors of the
assigning party's entire business or of substantially all of the assigning
party's assets relating to the manufacture and sale of Licensed Products. In
the event that NESTLE assigns any of its rights under this Agreement to an
affiliate of NESTLE, NESTLE shall remain secondarily liable for the obligations
assigned to the affiliate.
Section 9.02 Severability.
--------------------------
If any provision of this Agreement shall for any reason or to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
Section 9.03 Counterparts.
--------------------------
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall be deemed one and the same
instrument.
12
Section 9.04 Headings.
----------------------
The headings used in this Agreement are used for administrative purposes
only and do not constitute substantive matter to be considered in construing the
terms of this Agreement.
Section 9.05 Entire Agreement.
------------------------------
This Agreement embodies the entire agreement between the parties relating
to the subject matter hereof. All prior arrangements or understandings are
hereby superseded and canceled. No change, modification, or waiver of this
Agreement or any term thereof shall be valid or binding unless it is in writing
and signed by the party intended to be bound.
Section 9.06 Binding Effect.
----------------------------
Except as otherwise provided herein, the terms, obligations, covenants,
provisions, conditions and agreements herein shall bind and inure to the benefit
of the successors, legal representatives, transferees and assigns of NESTLE and
MEDJET.
Section 9.07 Use of Name.
-------------------------
NESTLE shall me the name of MEDJET in connection with the promotion and
sale of Licensed Products in a manner to be determined by NESTLE.
The parties shall issue a mutually agreed upon press release following the
execution of this Agreement
Section 9.08 Choice of Law.
---------------------------
The construction and performance of this Agreement shall be governed by the
laws of the State of New York.
Section 9.09 Obligation to Pay.
-------------------------------
Termination of this Agreement shall not affect the obligation of NESTLE to
pay MEDJET any royalty or other payments which may be due and unpaid at the date
of termination, nor shall the same prejudice any other right of MEDJET under
this Agreement. Within sixty (60) days after termination, NESTLE shall render
to MEDJET a written statement of the kind required in Section 3.03 hereof
respecting the due and unpaid royalties and shall accompany such a statement
with payment to cover the same.
13
Section 9.10 Attorney Fees.
--------------------------
If any party to this Agreement institutes legal proceedings against any
other party with respect to this Agreement or other transaction contemplated
hereby, the losing or defaulting party shall pay to the prevailing party
reasonable attorney fees, costs and expenses incurred in connection with the
prosecution or defense of such action.
Section 9.11 Warranty.
---------------------
MEDJET warrants that it is the sole and exclusive owner of the Know-How and
Licensed Patent Rights and has the right to grant the exclusive license
contained in this Agreement. MEDJET shall defend, indemnify and hold NESTLE
harmless against all claims by any third party alleging ownership of or any
rights to the Know-How and Licensed Patent Rights and shall bear all costs of
defending such actions, provided MEDJET is given prompt notice of such claim(s)
and MEDJET is given the opportunity to take over, control, settle and defend any
such claim(s).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
last day indicated below.
NESTLE S.A.
BY: /s/ Xxxxxx Xxxxxxx
-------------------
DATE: 22 July, 1998
------------- NAME: Xxxxxx Xxxxxxx
-------------------
TITLE: Vice-President
-------------------
MEDJET, INC.
BY: /s/ Xxxxxx X. Xxxxxx
DATE: July 15, 1998 ---------------------
-------------
NAME: Xxxxxx X. Xxxxxx
---------------------
TITLE: Chairman and Chief Executive Officer
-------------------------------------
14
EXHIBIT A
Product Specifications for MEDJET Powercut Microkeratome.
*
___________________
* Information omitted pursuant to a request for confidential treatment.
15
