EXHIBIT 10.16
AGREEMENT
THIS AGREEMENT, effective January 1, 2000, is made and entered into by
and among AETHLON MEDICAL, INC. (hereinafter "AETHLON"), HEMEX, Inc.
(hereinafter "HEMEX"), and Xx. Xxxxxx X. Xxxxxx, Xx., M.D. (hereinafter "Xx.
Xxxxxx") and Xx. Xxxxx X. Xxxxxxxx, M.D. (hereinafter "Xx. Xxxxxxxx").
RECITALS
WHEREAS, INVENTORS have invented and are the sole owners of an
INVENTION relating to an apparatus and method for removing HIV and other viruses
from the blood; and
WHEREAS, an application for a provisional patent was filed by INVENTORS
on August 31, 1998 with the United States Patent and Trademark Office under
serial number 60/098,477 with respect to such INVENTION, and US utility
application Serial No. 09/385166 and International Application No. PCT/US
99-19448 were filed by INVENTORS with respect to such INVENTION; and
WHEREAS, HEMEX is engaged in the business of development, manufacture
and sale of medical devices; and
WHEREAS, AETHLON plans to sell its common stock in a private placement
in order to fund its operations and its performance under this Agreement and in
partial consideration of the assignment and grant herein; and
WHEREAS, HEMEX desires to obtain an assignment of all of the INVENTORS'
right, title and interest in arid to the INVENTION without reservation or
contingency, except as otherwise provided herein, and to have the exclusive
right to make, use and sell PATENTED PRODUCTS, as hereinafter defined, and
INVENTORS are willing to grant such rights, under and subject to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
1.1 "AETHLON" shall mean Xxxxxx Equities, Inc. a Nevada corporation,
with its principal place of business located at 0000 Xxx Xxxxxx, Xxxxx 000, Xx
Xxxxx, Xxxxxxxxxx 00000 doing business under the assumed name Aethlon Medical,
Inc.
1.2 "EFFECTIVE DATE" shall mean January 1, 2000.
1.3 "EQUITY OFFERING" shall mean a private placement of Aethlon
Medical, Inc. common stock or equivalent financial instrument.
1.4 "FIELD OF USE" shall mean devices and methods for removing HIV and
other viruses from the blood employing a filtration device having antibodies
and/or DNA fragments immobilized on a material and retained by a membrane that
allows serum containing virus to interact with the antibodies and/or DNA,
including but not limited to such devices and methods as described in SUBJECT
PATENTS.
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1.5 "HEMEX" shall mean Hemex, Inc., a Delaware corporation authorized
to do business in New York, with its principal place of business located at 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, a wholly--owned subsidiary of AETHLON.
1.6 "INVENTION(S)" shall mean all devices and methods described in the
PROVISIONAL PATENT APPLICATION and in the UTILITY PATENT APPLICATION and in the
PCT INTERNATIONAL APPLICATION. INVENTION(S) shall further include any patentable
improvements in the FIELD OF USE both conceived and reduced to practice by
INVENTORS or HEMEX during the period extending through the EFFECTIVE DATE until
August 1, 2004. Any devices, methods or patentable improvements in the FIELD OF
USE which are either conceived or reduced to practice after August 1, 2004 are
specifically excluded as an INVENTION and therefore not includable under the
scope of this Agreement.
1.7 "INVENTORS" shall mean, collectively, Xxxxxx X. Xxxxxx, Xx., M.D.
and Xxxxx 0.Scamurra, M.D., individuals residing at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000 and 00 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000,
respectively.
1.8 "NET SALES PRICE" shall mean the price actually invoiced by HEMEX
(or by a licensee of HEMEX) for devices sold, leased or otherwise disposed of by
HEMEX (or a licensee of HEMEX) after deduction of customary trade and quantity
discounts but excluding broker or agent commissions as a deductible cost or
discount.
1.9 "PATENTED PRODUCT" shall mean any medical device covered by a claim
of a non-expired, granted patent under SUBJECT PATENTS that has not been held
invalid or unenforceable by a court or administrative agency of competent
authority.
1.10 "PCT INTERNATIONAL APPLICATION" shall mean PCT International
Application No. PCT/US 99-19448 filed under the Patent Cooperation Treaty on
August 30, 1999 by INVENTORS and entitled "Method For Removal of HIV and Other
Viruses For Blood".
1.11 "PROVISIONAL PATENT APPLICATION" shall mean the Provisional Patent
Application filed on August 31, 1998 by INVENTORS with the United States Patent
and Trademark Office with respect to the INVENTIONS, under serial number
60/098,477 and entitled "Use of Immobilized DNA Fragments and Antibodies to
Remove HIV and Other Viruses For Blood".
1.12 "SUBJECT PATENTS" shall mean all patent applications that may be
filed on INVENTIONS anywhere in the world, including any and all divisionals,
reissues, continuations and extensions thereof, and in and to any Letters
Patent, Inventors' Certificates, Design Registrations, Industrial Models,
Utility Models and all other forms of protection that may be granted thereon
worldwide. SUBJECT PATENTS specifically include the PROVISIONAL PATENT
APPLICATION, the UTILITY PATENT APPLICATION, and the PCT INTERNATIONAL
APPLICATION, and US and foreign patent applications that claim priority thereon,
and all divisions, continuations, reissues, substitutes and extensions thereof,
and all provisional patent application and patent applications and patents
claiming priority thereon, and any Letters Patent, Inventors' Certificates,
Design Registrations, Industrial Models, Utility Models and all other forms of
protection that may be granted thereon worldwide.
1.13 "TERM" shall mean the time period from the EFFECTIVE DATE through
the later of (i) the expiration date of the last to expire of SUBJECT PATENTS or
(ii) the abandonment date of the last to be abandoned of any patent applications
under SUBJECT PATENTS, unless this Agreement is sooner terminated as provided in
Article 6 hereof.
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1.14 "UTILITY PATENT APPLICATION" shall mean the US Utility Patent
Application filed on August 30, 1999 by INVENTORS with the United States Patent
and Trademark Office with respect to the INVENTIONS, under serial number
09/385166 and entitled "Method For Removal of HIV and Other Viruses For Blood".
ARTICLE 2 - ASSIGNMENT
----------------------
2.1 INVENTORS hereby assign and grant to HEMEX for the TERM and subject
to the provisions of this Agreement, with right to grant licenses to third
parties consistent with the terms of this Agreement, all of the INVENTORS'
right, title and interest worldwide in and to
(a) the INVENTIONS, and
(b) the SUBJECT PATENTS.
2.2 INVENTORS agree to execute one or more assignments and such other
documents as may be reasonably requested by HEMEX from lime to time, at no cost
to INVENTORS, to evidence or effect the assignment and grant of rights provided
herein.
2.3 HEMEX accepts the assignment and grant of Article 2.1, and AETHLON
consents to the assignment and grant to HEMEX.
ARTICLE 3 - ROYALTIES; PAYMENT AND REPORTING
--------------------------------------------
3.1 In consideration of the assignment to HEMEX and other covenants and
agreements contained in this Agreement, HEMEX or AETHLON, as the case may be,
shall pay and deliver to INVENTORS:
(a) within thirty (30) days of the date of signature of this
Agreement by authorized representatives of all parties, the greater of (i)
twelve thousand five hundred (12,500) shares of AETHLON common stock ($.00l Par
Value) issued and fully paid and non-assessable on the EFFECTIVE DATE, which
shares shall be deemed fully earned or (ii) such number of shares of AETHLON
common stock ($.001 Par Value) issued and fully paid and non-assessable on the
EFFECTIVE DATE, as will equal one hundred thousand dollars ($100,000) based upon
the per share trading price on the EFFECTIVE DATE, which shares shall be deemed
fully earned; and
(b) within thirty (30) days of the date of issuance of the
first US letters patent relating to an INVENTION, the greater of (i) twelve
thousand five hundred (12,500) shares of AETHLON common stock ($.001 Par Value)
issued and fully paid and non-assessable on said US letters patent issuance
date, which shares shall be deemed fully earned or (ii) such number of AETHLON
common stock ($.001 Par Value) issued and fully paid and non-assessable on said
US letters patent issuance date as will equal one hundred thousand dollars
($100,000.00) based upon the per share trading price on said US letters patent
issuance date, which shares shall be deemed fully earned; and
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(c) a royalty equal to eight and three quarter percent (8.75%)
of the NET SALES PRICE of all PATENTED PRODUCTS sold, leased or otherwise
disposed of for resale to end users whether or not affiliated with HEMEX or
AETHLON. For purposes of payment under this Article 3.1(c), within thirty (30)
days after the last day of March, June, September and December in each relevant
year during the TERM and after the first commercial sale of a PATENTED PRODUCT,
Hemex shall furnish to INVENTORS a written statement in such detail as INVENTORS
may reasonably require of all amounts due pursuant to this Article 3.1(c) for
the preceding quarter, and shall pay to INVENTORS all amounts due to INVENTORS
thereunder.
3.2 HEMEX and its licensees shall at all times keep an accurate account
of all sales, leases or other dispositions for resale to end users of PATENTED
PRODUCTS which are the subject of this Agreement, shall render written
statements thereof to INVENTORS as required under Article 3.1(d) and shall pay
to the INVENTORS with each such statement, the amount of all royalties earned
during such quarter. HEMEX shall keep accurate records containing all data
reasonably required for the computation and verification of the amounts to be
paid and the information to be reported to INVENTORS under this Agreement. HEMEX
shall permit an independent accounting firm designated by INVENTORS to audit
such records at HEMEX's principal place of business (or such other site as HEMEX
may reasonably designate) at any time and from time to time during normal
business hours upon reasonable advance notice to HEMEX. The auditor must sign a
nondisclosure agreement in a form reasonably acceptable to HEMEX. In no event
shall audits be conducted under this Article 3.2 more than one time in any
calendar year. If INVENTORS elect not to have an independent accounting firm
audit such records in any year, the right to audit the records for such year
shall carry forward. All costs and expenses incurred by INVENTORS for audit of
HEMEX's records shall be borne by INVENTORS unless the audit discovers errors or
omissions more than ten percent (10%) in HEMEX's favor, in which case the costs
and expenses shall be borne by HEMEX but not to exceed the amount of the error
or omission in HEMEX's favor. If such an audit discloses a discrepancy between
the amounts reported and paid by HEMEX and what should have been reported and
paid, HEMEX shall have the right to its own audit, at HEMEX's expense, within
sixty (60) days after notice from INVENTORS of the discrepancy. If the auditors
agree on the amount of the discrepancy, HEMEX shall pay the shortfall in full
within thirty (30) days if INVENTORS have been underpaid and INVENTORS shall
repay the overpayment in full within Thirty (30) days if INVENTORS have been
overpaid. lithe auditors do not agree on the amount of the discrepancy, the
dispute shall be submitted to binding arbitration in accordance with the
arbitration provisions of Section 6.4 of this Agreement.
ARTICLE 4 - LICENSING
---------------------
HEMEX may from time to time grant one or more licenses with respect to
the SUBJECT PATENTS within its discretion, provided, however, that such licenses
shall be consistent with the terms of this Agreement, require periodic reporting
of all revenues derived by any licensees from the SUBJECT PATENTS and shall
automatically terminate upon expiration or sooner termination of this Agreement.
INVENTORS shall be entitled to inspect all such license agreements upon
reasonable prior notice to HEMEX and to make extracts and copies thereof, from
time to time and at any lime during the TERM. To the extent that such license
agreements or the terms of the agreements are confidential to HEMEX or to the
sublicensee, INVENTORS shall sign a nondisclosure agreement in a form reasonably
acceptable to HEMEX prior to inspection, or to making extracts and copies
thereof.
ARTICLE 5 - PATENT FILING AND PROSECUTION
-----------------------------------------
5.1 Upon signature of this Agreement, INVENTORS will promptly disclose
to HEMEX all information (collectively, the "INFORMATION") in its possession
pertaining to the filed patent applications under SUBJECT PATENTS which may be
necessary or useful for prosecuting such patent applications for the protection
of INVENTIONS. HEMEX will, upon receipt of the INFORMATION: accept liaison and
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financial responsibility for prosecution by a patent attorney nominated by HEMEX
and approved by INVENTORS of the application to allowance or through necessary
appeal from a final rejection by an examiner of the United States Patent and
Trademark Office; and reimburse INVENTORS for the costs involved in filing the
UTILITY PATENT APPLICATION and PCT INTERNATIONAL APPLICATION, the costs not to
exceed seven thousand dollars ($7000). INVENTORS will thereafter from time to
time supply HEMEX with additional information as may be necessary or desirable
to facilitate prosecution and preparation of patent applications on INVENTIONS.
5.2 In. addition to the patent applications identified in Article 5.1,
HEMEX shall have the right to identify INVENTIONS that may be the subject of
additional US Patent applications. HEMEX shall also have the right to identify
INVENTIONS that may be the subject of foreign patent applications. HEMEX shall
have liaison and financial responsibility during the TERM for preparation,
filing and prosecution of any such patent applications, and maintenance of any
patent granted thereon, using a patent attorney nominated by HEMEX and approved
by INVENTORS.
5.3 HEMEX will provide INVENTORS with copies of applications filed in
the United States or foreign patent offices, any papers received from the United
States or foreign patent offices pertaining to such applications, and any papers
filed in the United States or foreign patent offices pertaining to such
applications. Any written comments on prosecution of such applications received
from INVENTORS shall be provided to the patent attorney referenced in Articles
5.1 and 5.2.
5.4 HEMEX shall not abandon any patent application under SUBJECT
PATENTS, nor permit any granted patent under SUBJECT PATENTS to lapse prior to
its full patent term, without first providing INVENTORS with the opportunity to
assume financial and patent liaison responsibility for such application or
patent. Any such application or patent under SUBJECT PATENTS for which INVENTORS
assume responsibility under this Section 5.4 shall revert to INVENTORS and HEMEX
shall execute and deliver to INVENTORS any and all assignments and other
documents necessary to effect such reversion and transfer, except as otherwise
provided in Article 6 Agreement upon a termination hereof.
ARTICLE 6 - TERMINATION; ARBITRATION
------------------------------------
6.1 INVENTORS may terminate this Agreement upon the occurrence of any
of the following events (individually, "Event of Default" and collectively,
"Events of Default"):
(a) The default by HEMEX or AETHLON in observing any provision
of this Agreement and failure to cure such default within sixty (60) days
receipt of written notice from the INVENTORS specifying the nature of such
default, or (i) if by reason of its nature the failure or default can be
remedied, but not within such sixty (60) day period, HEMEX or AETI-ILON fails to
proceed with reasonable diligence after receipt of such notice to cure the
default, or (ii) if HEMEX or AETHLON fails to continue with reasonable diligence
its efforts to cure the default; provided, however, that in no event shall HEMEX
or AETHLON have more than one (1) additional sixty (60) day period to cure such
default.
(b) HEMEX or AETHLON (i) applies for or consents to the
appointment of or the taking of possession by a receiver, custodian, trustee or
liquidator of itself or of any of its assets, (ii) commences a voluntary case
under the Federal Bankruptcy Code (as now or hereafter in effect), or (iii)
files a petition or other request seeking to take advantage of any other law
relating to bankruptcy or insolvency.
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(c) A proceeding or case is commenced without the application
or consent of HEMEX or AETHLON or an affiliated party of HEMEX or AETHLON in any
court of competent jurisdiction, seeking (i) liquidation, reorganization,
adjudication as a bankrupt, dissolution, or winding-up, (ii) the appointment of
a trustee, receiver, custodian, liquidator or the like of HEMEX or AETHLON, or
(iii) similar relief under any law relating to bankruptcy, insolvency,
reorganization, or winding-up, and such proceeding or case continues
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing is entered and continues unstayed and in effect, for a period of sixty
(60) days.
(d) INVENTORS have not received payment of at least fifteen
thousand dollars ($15,000) in any year during the TERM beginning in the second
full year after both the issuance of any US letters patent and FDA approval of a
PATENTED PRODUCT (if required for marketing the product in the USA) and HEMEX
fails to make a payment to ENVENTORS during that year equivalent to the fifteen
thousand dollar ($15,000) royalty payment;
(e) The EQUITY OFFERING is not completed within twenty-four
(24) months after the EFFECTIVE DATE.
6.2 HEMEX may terminate this Agreement upon the default by INVENTORS in
observing any provision of this Agreement and failure to cure such default
within sixty (60) days receipt of written notice from the HEMEX or AETHLON
specifying the nature of such default, or (i) if by reason of its nature the
failure or default can be remedied, but not within such sixty (60) day period,
INVENTORS fail to proceed with reasonable diligence after receipt of such notice
to cure the default, or (ii) if INVENTORS fails to continue with reasonable
diligence its efforts to cure the default; provided, however, that in no event
shall INVENTORS have more than one (1) additional sixty (60) day period to cure
such default.
6.3 Upon termination of this Agreement as provided above in Article
6.1, all rights assigned and granted to HEMEX hereunder and all licenses granted
to third parties shall thereupon cease and ownership of the SUBJECT PATENTS, the
INVENTIONS and the INFORMATION shall immediately revert to and revest in the
INVENTORS. HEMEX shall promptly execute and deliver one or more assignments as
may reasonably be requested by INVENTORS to transfer ownership in the SUBJECT
PATENTS, INVENTIONS and shall promptly deliver a copy of the INFORMATION
previously received to INVENTORS. HEMEX shall notify INVENTORS of the inventory
of PATENTED PRODUCTS that it has on hand for which a royalty would be payable
upon the sale, lease or other disposition thereof under the provisions of this
Agreement, and HEMEX shall then have a twelve (12) month license to sell that
inventory, provided that HEMEX pays royalties for those PATENTED PRODUCTS and
renders reports to INVENTORS for those PATENTED PRODUCTS as provided for in this
Agreement. The terms of this Agreement that by their context are meant to
survive expiration or termination of this Agreement shall so survive. HEMEX
shall be required to destroy any PATENTED PRODUCTS that remain after the
expiration of this post-termination license, if the sale of such remaining
inventory would be unlawful without a license from INVENTORS. HEMEX shall retain
all books and records that would be used to account for the royalty payments due
to INVENTORS until such books and records are at least six (6) years old.
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6.4 Any dispute arising out of or related to this Agreement (other than
the validity or scope of any patents referred to herein), whether sounding in
tort or contract or otherwise (including but not limited to any claim of
misrepresentation, concealment, negligence, fraud, breach of implied duty,
etc.), which is not settled by amicable agreement of the parties shall be
determined by binding arbitration. The arbitration shall be held in the state of
New York in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, to the extent those rules are not inconsistent with
anything in this Agreement. The decision of the arbitrator or arbitrators shall
be final and binding, and judgment on the award may be entered in any court
having jurisdiction. Nothing in this Agreement to arbitrate shall prohibit
either party from seeking injunctive relief, including a temporary restraining
order or a preliminary injunction, in a court of competent jurisdiction. The
parties agree to both personal jurisdiction and venue in the County of Erie
before any Court of competent subject matter jurisdiction therein. Venue for any
arbitration proceeding hereunder shall also be in the County of Erie.
ARTICLE 7 - ADDITIONAL COVENANTS
--------------------------------
7.1 HEMEX shall defend, at its own expense, all infringement suits that
may be brought against it or its licensees based on or related to the
manufacture, use, or sale of PATENTED PRODUCTS.
7.2 HEMEX shall, at its own expense, have the right to bring suit for
infringement under SUBJECT PATENTS. The INVENTORS shall, at the expense and at
the request of HEMEX, join the suit as a party plaintiff and give evidence and
execute such documents as HEMEX may reasonably require. HEMEX shall be entitled
to any recovery of damages from any such infringement action, but shall account
therefor to the INVENTORS and promptly pay a royalty at the rate set forth in
Section 3.1(d) of this Agreement on any recovery for infringement after
deduction of HEMEX's costs incurred in any such action.
7.3 If INVENTORS provide HEMEX with written notice of an infringement
under SUBJECT PATENTS, the parties shall cooperate in obtaining an opinion of
patent counsel confirming infringement. If the opinion confirms infringement,
HEMEX shall have six months from the date of the opinion to bring suit, as
provided under Article 7.2, or to obtain an undertaking from the infringing
party for a sublicense under SUBJECT PATENTS. If HEMEX does not bring suit or
obtain the undertaking for a sublicense from the infringing party, then
INVENTORS shall have the right to bring suit for infringement under SUBJECT
PATENTS, and HEMEX shall, at the expense and at the request of INVENTORS, join
the suit as a party plaintiff and give evidence and execute such documents as
INVENTORS may reasonably require. HEMEX shall not be entitled to any recovery of
damages from any such infringement action brought by INVENTORS under this
Article 7.3.
7.4 HEMEX agrees that before it begins to make, market and sell any
products covered by the SUBJECT PATENTS or INVENTIONS, it will carry products
liability insurance in amounts and coverages as are appropriate for such
products and naming INVENTORS as additional insureds. HEMEX agrees to indemnify,
defend and hold INVENTORS harmless from any products liability claim made
against INVENTORS for a product sold by HEMEX unless such claim results or
arises from a willful or negligent act or omission of INVENTORS.
7.5 HEMEX agrees to xxxx all products made or sold in the United States
pursuant to this Agreement with the word "Patent" together with the number(s) of
the applicable SUBJECT PATENT in the manner prescribed in 35 U.S.C. ss.287
unless impractical.
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ARTICLE 8 - REPRESENTATIONS AND WARRANTIES
------------------------------------------
8.1 INVENTORS represent and warrant to HEMEX and its successors and
assigns that:
(a) They have sole and exclusive ownership of INVENTIONS and
SUBJECT PATENTS, and the sole and exclusive right to grant the assignment and
rights under this Agreement, and they have not granted licenses or conveyed
other rights, nor will they grant licenses or convey other rights in the future,
to any person or entity that would conflict with the assignment and rights
granted to HEMEX in this Agreement;
(b) They have the full power to enter into and fully perform
this Agreement, and that the execution, delivery and performance of this
Agreement will not violate any terms or obligations of INVENTORS in contracts
with third parties (including the State University of New York of Buffalo); and
(c) To the best of their knowledge and belief, practice of
INVENTIONS will not infringe any patents or proprietary rights of third parties.
8.2 HEMEX and AETHLON jointly and severally represent and warrant to
INVENTORS that:
(a) Each of HEMEX and AETHLON is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation and HEMEX is qualified to do business and in good standing under
the laws of the State of New York. Each .of AETHLON and HEMEX has all corporate
power and authority to own, lease or operate its property and to carry on its
business as it is now and has since its incorporation been conducted by it.
(b) The execution and delivery of this Agreement and the
instruments to be executed and delivered pursuant hereto arid the consummation
of the transactions contemplated hereby by AETHLON and HEMEX have been approved
by all necessary corporation action. Upon execution and delivery, this
Agreement, and each document of transfer contemplated by this Agreement when
executed and delivered by each of AETHLON and HEMEX in accordance with the
provisions hereof, will constitute a legal, valid and binding agreement of
AETHLON and HEMEX, as applicable, enforceable against each in accordance with
its respective terms, except to the extent that a court may choose to award
monetary damages rather than specific performance, or that enforceability may be
limited by applicable bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally or by general equitable principles.
(c) On the EFFECTIVE DATE, the authorized capital of AETHLON
consists of 25,000,000 shares ($.001 par value) of one class of common stock
with 2,595,000 shares issued and outstanding. There are no outstanding warrants,
options or agreements to issue shares or restrictions on the transfer of shares
except for a certain stock option agreement with Xxxxxxxx X. Xxxxx, Xx. dated
April 1, 1999 and certain warrants to be issued as described in the Offering
Summary of AETHLON dated June 28, 1999.
(d) On the EFFECTIVE DATE, AETHLON owns one hundred percent
(100%) of the issued and outstanding shares of HEMEX.
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8.3 HEMEX shall indemnify and hold harmless INVENTORS against all
liabilities, demands, damages, expenses, or losses resulting from or arising out
of HEMEX's material misrepresentation contained in any representation or
warranty in this Agreement as of the date hereof. INVENTORS shall indemnify and
hold harmless HEMEX against all liabilities, demands, damages, expenses, or
losses resulting from or arising out of INVENTORS' material misrepresentation
contained in any representation or warranty in this Agreement as of the date
hereof.
ARTICLE 9 - MISCELLANEOUS
-------------------------
9.1 This Agreement may be amended or modified only by a written
instrument duly executed by and authorized representative of each party.
9.2 This Agreement shall be binding upon and inure to the benefit and
burden of the respective successors and permitted assigns of the parties. During
the period from the EFFECTIVE DATE through August 1, 2004, HEMEX may not assign
this Agreement without the prior written consent of INVENTORS which consent may
not be unreasonably withheld.
9.3 This Agreement shall be deemed to have been made in and shall be
construed in accordance with the laws of the State of New York without reference
to its choice of law provisions.
9.4 This Agreements may execute in several counterparts, provided that
each party receives a copy fully signed by the other parties.
9.5 The headings and titles to the articles and paragraphs in this
Agreement are intended solely for convenience and shall be given no effect in
the construction or interpretation of this Agreement.
9.6 Each party shall at the request of the other party, execute any
document reasonably necessary to implement the provisions of this Agreement.
9.7 Nothing in this Agreement is intended or shall be deemed to
constitute a partnership, agency, employer-employee or a joint venture
relationship between HEMEX and INVENTORS, INVENTORS shall not incur any debts or
make any commitments for HEMEX, except to the extent, if at all, specifically
provided herein.
9.8 This written Agreement embodies the entire understanding between
the parties with respect to the subject matter hereof and supersedes and
replaces any and all other prior understandings, arrangements, and/or
agreements, whether written or oral, relating to the SUBJECT PATENTS and
INVENTIONS.
9.9 This Agreement is divisible and separable. If any provision of this
Agreement is held to be or becomes invalid, illegal or unenforceable, such
provision shall be reformed to approximate as nearly as possible the intent of
the parties and shall remain valid and enforceable to the greatest extent
permitted by law.
9.10 The terms of this Agreement may be waived only by a written
instrument expressly waiving such term or terms and executed by the party
waiving compliance. The waiver of any term or condition of this Agreement by
either party hereto shall not constitute a modification of this Agreement, nor
prevent a party hereto from enforcing such term or condition in the future with
respect to any subsequent event, any other right accruing to such party
hereunder.
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9.11 All notices and other communications regarding this Agreement sent
to HEMEX shall be addressed to:
Hemex, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxx
Fax: 000-000-0000
All notices and other communications regarding this Agreement sent to Xx. Xxxxxx
shall be addressed to:
Xxxxxx X. Xxxxxx, Xx., M.D.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Fax: 000-000-0000
with a copy to:
Magavern & Rich, LLP
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
All notices and other communications regarding this Agreement sent to Xx.
Xxxxxxxx shall be addressed to:
Xxxxx X. Xxxxxxxx, M.D.
00 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000
Fax: 000-000-0000
with a copy to:
Magavem & Rich , LLP
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
Unless provided to the contrary in this Agreement, all written notices
required or permitted to be given under the terms of this Agreement shall be
deemed duly delivered upon receipt if (1) delivered in person, (2) sent by
facsimile using a machine that confirms delivery and confirmed by sending the
original via certified mail, return receipt requested, or (3) sent certified
mail, return receipt requested to the above address.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed.
HEMEX, INC. XXXXXX X. XXXXXX, XX., M.D.
By: /s/ signature /s/ Xxxxxx X. Xxxxxx
Title: President Date: 12/30/99
Date: 1/10/2000
XXXXX X. XXXXXXXX, M.D.
/s/ Xxxxx X. Xxxxxxxx
Date: 12 30 99
11
