EX-10.5 9 d146912dex105.htm EX-10.5 EXECUTION VERSION TRADEMARK LICENSE AGREEMENT BY AND BETWEEN VARIAN MEDICAL SYSTEMS, INC. AND VAREX IMAGING CORPORATION DATED AS OF JANUARY 27, 2017
Exhibit 10.5
EXECUTION VERSION
BY AND BETWEEN
VARIAN MEDICAL SYSTEMS, INC.
AND
VAREX IMAGING CORPORATION
DATED AS OF JANUARY 27, 2017
TABLE OF CONTENTS
ARTICLE I DEFINITIONS | 1 | |||
Section 1.01 | Definitions | 1 | ||
ARTICLE II GRANT OF LICENSE | 5 | |||
Section 2.01 | Grant of License | 5 | ||
Section 2.02 | Sublicensing | 8 | ||
Section 2.03 | Acquired Business | 8 | ||
Section 2.04 | Retained Rights | 9 | ||
ARTICLE III COVENANTS | 9 | |||
Section 3.01 | No Challenge to Title | 9 | ||
Section 3.02 | No Conflicting Grants | 9 | ||
Section 3.03 | Trademark Notices | 9 | ||
Section 3.04 | Goodwill | 10 | ||
Section 3.05 | Quality Control; Varian Approvals | 10 | ||
Section 3.06 | Compliance with Trademark Usage Guidelines | 10 | ||
ARTICLE IV PROSECUTION, MAINTENANCE, ENFORCEMENT AND DEFENSE | 11 | |||
Section 4.01 | Prosecution and Maintenance | 11 | ||
Section 4.02 | Enforcement and Defense | 11 | ||
Section 4.03 | Third Party Actions | 11 | ||
ARTICLE V BANKRUPTCY | 12 | |||
12 | ||||
Section 6.01 | Term | 12 | ||
Section 6.02 | Termination for Material Breach | 12 | ||
Section 6.03 | Termination Upon Bankruptcy | 12 | ||
Section 6.04 | Termination by Varex | 12 |
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Section 6.05 | Effect of Termination; Survival | 12 | ||
ARTICLE VII GROUP MEMBERS | 13 | |||
ARTICLE VIII DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY | 13 | |||
Section 8.01 | Disclaimer of Representations and Warranties | 13 | ||
Section 8.02 | Exclusion of Certain Damages | 13 | ||
ARTICLE IX INDEMNIFICATION | 13 | |||
Section 9.01 | Indemnification by Varex | 13 | ||
Section 9.02 | Indemnification by Varian | 14 | ||
Section 9.03 | Indemnification Procedures | 14 | ||
ARTICLE X MISCELLANEOUS | 14 | |||
Section 10.01 | Further Assurances | 14 | ||
Section 10.02 | Counterparts; Entire Agreement; Corporate Power | 14 | ||
Section 10.03 | Governing Law | 15 | ||
Section 10.04 | Assignability | 15 | ||
Section 10.05 | Third-Party Beneficiaries | 16 | ||
Section 10.06 | Notices | 16 | ||
Section 10.07 | Severability | 17 | ||
Section 10.08 | Force Majeure | 17 | ||
Section 10.09 | No Set-Off | 17 | ||
Section 10.10 | Expenses | 18 | ||
Section 10.11 | Headings | 18 | ||
Section 10.12 | Waivers of Default | 18 | ||
Section 10.13 | Dispute Resolution | 18 | ||
Section 10.14 | Specific Performance | 18 | ||
Section 10.15 | Amendments | 18 |
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Section 10.16 | Interpretation | 18 | ||
Section 10.17 | Mutual Drafting | 19 |
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This TRADEMARK LICENSE AGREEMENT, dated as of January 27, 2017 (this “Agreement”), is by and between Varian Medical Systems, Inc., a Delaware corporation (“Varian”), and Varex Imaging Corporation, a Delaware corporation (“Varex”).
R E C I T A L S:
ARTICLE I
(a) “Access Rights” has the meaning set forth in Section 3.05(c).
(b) “Acquired Business” has the meaning set forth in Section 2.03.
(c) “Action” has the meaning set forth in the Separation and Distribution Agreement.
(d) “Aftermarket Extension Products” has the meaning set forth in Section 2.01(c).
(e) “Agreement” has the meaning set forth in the Preamble.
(f) “Ancillary Agreements” has the meaning set forth in the Separation and Distribution Agreement.
(g) “Applicable Terms” has the meaning set forth in Section 2.02.
(h) “Commercial Documentation” means Licensed Product and Licensed Services purchase order acknowledgements, shipping documents, invoices, and other Licensed Product-related commercial documents.
(i) “Corporate Identity” means any business or corporate entity name, trade name or other business or corporate identifier (e.g., “d/b/a”).
(j) “Dispute” has the meaning set forth in Section 10.13.
(k) “Distribution” has the meaning set forth in the Recitals.
(l) “Distribution Date” shall mean the date of the consummation of the Distribution, which shall be determined by the Varian Board in its sole and absolute discretion.
(m) “Effective Time” has the meaning set forth in the Separation and Distribution Agreement.
(n) “Extension Products” has the meaning set forth in Section 2.01(b).
(o) “Force Majeure” has the meaning set forth in the Separation and Distribution Agreement.
(p) “Governmental Authority” has the meaning set forth in the Separation and Distribution Agreement.
(q) “Group” shall mean either the Varex Group or the Varian Group, as the context requires.
(r) “Internet Content” means Varex’s website located at xxx.xxxxxxxxxxxx.xxx and any other Varex-controlled content on any World Wide Information Distribution Medium, including on any social media product, service, application or tool (e.g., Twitter, Facebook, etc.) or similar service (now known or hereafter known), including any of the foregoing that permits the exchange of user generated content on the internet (e.g., YouTube) existing at any time during the term of this Agreement.
(s) “Law” has the meaning set forth in the Separation and Distribution Agreement.
(t) “License” means the license granted to Varex and the other members of its Group in Section 2.01.
(u) “License Expiration” has the meaning set forth in Section 2.01(a).
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(v) “Licensed Cast/Engraved Products” means parts that (i) were manufactured by Varian as part of the Varex Business prior to the Distribution Date and (ii) are casted or engraved during manufacturing with one or more of the Licensed Marks.
(w) “Licensed Marks” means “VARIAN MEDICAL SYSTEMS,” “VARIAN,” and any stylized versions of the foregoing or any design elements thereof.
(x) “Licensed Product” means any Licensed Registered Aftermarket Product, Licensed Registered OEM Product, Licensed Cast/Engraved Product, Licensed Software Product, or Licensed Warranted Product.
(y) “Licensed Registered Aftermarket Products” means products that (i) were created, developed, and/or distributed by Varian as part of the Varex Business prior to the Distribution Date, (ii) are required by any OEM’s product regulatory registration with a Governmental Authority and (iii) are sold directly to end customers or as aftermarket products (non-OEM products).
(z) “Licensed Registered OEM Products” means products that (i) were created, developed, and/or distributed by Varian as part of the Varex Business prior to the Distribution Date, (ii) are required by any OEM’s product regulatory registration with a Governmental Authority and (iii) are sold to such OEM.
(aa) “Licensed Service” means any service related primarily to the installation, maintenance, repair, use, or monitoring of Licensed Products.
(bb) “Licensed Software Products” means software that was created, developed, and/or distributed by Varian as part of the Varex Business prior to the Distribution Date, and any updates thereto.
(cc) “Licensed Warranted Products” means products that (i) were shipped by Varian, prior to the Distribution Date, under a Varian warranty as part of the Varex Business and (ii) are returned to Varex, after the Distribution Date, for replacement or repair under such warranty.
(dd) “Liabilities” has the meaning set forth in the Separation and Distribution Agreement.
(ee) “OEM” means original equipment manufacturer.
(ff) “Parties” shall mean the parties to this Agreement.
(gg) “Person” has the meaning set forth in the Separation and Distribution Agreement.
(hh) “Promotional Material” means all product and marketing material, including data sheets (whether written or recorded in any other medium), used in the promotion of any Licensed Products or Licensed Services.
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(ii) “Quality Standards” has the meaning set forth in Section 3.05(a).
(jj) “Record Date” has the meaning set forth in the Separation and Distribution Agreement.
(kk) “Registration Expiration” has the meaning set forth in Section 2.01(b).
(ll) “Remaining Warranted Products” has the meaning set forth in Section 2.01(d).
(mm) “Representative” has the meaning set forth in the Separation and Distribution Agreement.
(nn) “Separation” has the meaning set forth in the Recitals.
(oo) “Separation and Distribution Agreement” has the meaning set forth in the Recitals.
(pp) “Social Media Identifier” means any name, xxxx or other identifier (either alone or in combination with any other name, xxxx or other identifier) used to establish an account, screen name, nickname or “handle” on, or means to locate any, social media product, service, application or tool (e.g., Twitter, Facebook, etc.) or similar service (now known or hereafter known), including any of the foregoing that permits the exchange of user generated content on the internet (e.g., YouTube).
(qq) “Software License Expiration” has the meaning set forth in Section 2.01(e).
(rr) “Subsidiary” has the meaning set forth in the Separation and Distribution Agreement.
(ss) “Third Party” has the meaning set forth in the Separation and Distribution Agreement.
(tt) “Varex” has the meaning set forth in the Preamble.
(uu) “Varex Business” has the meaning set forth in the Separation and Distribution Agreement.
(vv) “Varex Group” has the meaning set forth in the Separation and Distribution Agreement.
(ww) “Varex Indemnitees” has the meaning set forth in Section 9.02.
(xx) “Varex Shares” shall mean the shares of common stock, par value $0.01 per share, of Varex.
(yy) “Varian” has the meaning set forth in the Preamble.
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(zz) “Varian Board” has the meaning set forth in the Recitals.
(aaa) “Varian Business” shall mean the Parent Business (as such term is defined in the Separation and Distribution Agreement).
(bbb) “Varian Group” has the meaning set forth in the Separation and Distribution Agreement.
(ccc) “Varian Indemnitees” has the meaning set forth in Section 9.01.
(ddd) “Varian Shares” shall mean the common shares, par value $1.00 per share, of Varian.
(eee) “World Wide Information Distribution Medium” shall mean any means of simultaneously (or nearly simultaneously) distributing information to all or most countries in the world and which permits contemporaneous (or nearly contemporaneous) access to that information in those countries, including the internet.
ARTICLE II
(a) Licensed Cast/Engraved Products. Varex (and each other member of the Varex Group) shall have the License to use and have used the Licensed Marks on any Licensed Cast/Engraved Product in the same manner as they were used in the Varex Business prior to the Distribution Date for the remainder of the term of manufacture of such Licensed Cast/Engraved Product or until the tooling for such Licensed Cast/Engraved Product is replaced, whichever occurs first (“License Expiration”), subject to the remainder of this Section 2.01(a). On or before (but not more than six (6) months before) the eighth (8th) anniversary of the Distribution Date, Varex will provide Varian with a list of all Licensed Cast/Engraved Products for which the License Expiration has not occurred. Varex will have the option, exercisable by written notice to Varian on or before such eighth (8th) anniversary, to extend the License under this Section 2.01(a) as to such Licensed Cast/Engraved Product for an additional four (4) years. The License as to any Licensed Cast/Engraved Products for which Varex does not exercise its option to extend will terminate on such eighth (8th) anniversary. The foregoing extension option and termination process will be repeated every four (4) years thereafter until License Expiration has occurred for all Licensed Cast/Engraved Products and/or the License under this Section 2.01(a) has terminated for all Licensed Cast/Engraved Products.
(b) Licensed Registered OEM Products. Varex (and each other member of the Varex Group) shall have the License to use and have used the Licensed Marks on any Licensed Registered OEM Product in the same manner as they were used in the Varex Business prior to the Distribution Date until the applicable product registration(s) for the applicable OEM products expire or three (3) months after new registration(s) for the applicable OEM products
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have been obtained, whichever is earlier (“Registration Expiration”), subject to the remainder of this Section 2.01(b). On or before (but not more than six (6) months before) the fifth (5th) anniversary of the Distribution Date, Varex will provide Varian with a list of all Licensed Registered OEM Products with respect to which Registration Expiration has not occurred (“Extension Products”). Varex will have the option, exercisable by written notice to Varian on or before such fifth (5th) anniversary, to extend the License under this Section 2.01(b) as to any Extension Products for an additional one (1) year. The License under this Section 2.01(b) as to any Extension Products for which Varex does not exercise its option to extend will terminate on such fifth (5th) anniversary. The foregoing extension option and termination process will be repeated every year thereafter until Registration Expiration has occurred for all Licensed Registered OEM Products and/or the License under this Section 2.01(b) has terminated for all Extension Products due to Varex’s failure to extend. Varex will ensure that any new product registrations applied for by any OEM customer of Varex after the Distribution Date will not include products using the Licensed Marks.
(c) Licensed Registered Aftermarket Products. Varex (and each other member of the Varex Group) shall have the License to use and have used the Licensed Marks on any Licensed Registered Aftermarket Product in the same manner as they were used in the Varex Business prior to the Distribution Date until the Registration Expiration with respect to such Licensed Registered Aftermarket Product, subject to the remainder of this Section 2.01(c). On or before (but not more than six (6) months before) the third (3rd) anniversary of the Distribution Date, Varex will provide Varian with a list of all Licensed Registered Aftermarket Products with respect to which Registration Expiration has not occurred (“Aftermarket Extension Products”). Varex will have the option, exercisable by written notice to Varian on or before such third (3rd) anniversary, to extend the License under this Section 2.01(c) as to any Aftermarket Extension Products for an additional one (1) year. The License under this Section 2.01(c) as to any Licensed Registered Aftermarket Products for which Varex does not exercise its option to extend will terminate on such third (3rd) anniversary. The foregoing extension option and termination process will be repeated every year thereafter until Registration Expiration has occurred for all Licensed Registered Aftermarket Products and/or the License under this Section 2.01(c) has terminated for all Aftermarket Extension Products due to Varex’s failure to extend.
(d) Licensed Warranted Products. Varex (and each other member of the Varex Group) shall have the License to use and have used the Licensed Marks on with Licensed Warranted Products in the same manner as they were used in the Varex Business prior to the Distribution Date, subject to the remainder of this Section 2.01(d). On or before (but not more than six (6) months before) the fifth (5th) anniversary of the Distribution Date, Varex will provide Varian with a list of all products shipped by Varian under a Varian warranty as part of the Varex Business prior to the Distribution Date that are still under such warranty (“Remaining Warranted Products”). Varex will have the option, exercisable by written notice to Varian on or before such fifth (5th) anniversary, to extend the License under this Section 2.01(d) as to any Licensed Warranted Products among the Remaining Warranted Products for an additional two (2) years. The License under this Section 2.01(d) as to any Licensed Warranted Products among the Remaining Warranted Products for which Varex does not exercise its option to extend will terminate on such fifth (5th) anniversary. The foregoing extension option and termination process will be repeated every two (2) years thereafter until there are no Remaining Warranted Products and/or the License under this Section 2.01(d) has terminated for all Licensed Warranted Products among the Remaining Warranted Products due to Varex’s failure to extend.
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ARTICLE III
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Section 3.05 Quality Control; Varian Approvals.
(a) The Licensed Products manufactured, marketed and distributed by Varex and the other members of its Group shall be of the same nature as, and of a quality that is at least commensurate with the quality of, such products as they were manufactured, marketed and distributed by Varian prior to the Distribution Date (the “Quality Standards”). Varian shall have the right to inspect the business operations of Varex and the members of its Group, upon reasonable prior notice, for the purpose of ensuring Varex’s compliance with the Quality Standards. At Varian’s request from time to time, Varex shall submit to Varian, at no cost to Varian, samples of the Licensed Products that conform in all material respects to the Licensed Products then being manufactured, marketed and distributed by Varex and the other members of its Group. After the samples of the Licensed Products have been evaluated, the samples will be returned to Varex in usable condition, at no cost to Varex. If at any time Varian notifies Varex in writing that Varian has determined that the Licensed Products fail to meet the Quality Standards, then (i) the Parties shall promptly meet and agree upon appropriate remedial steps and (ii) Varex and the other members of its Group shall suspend all distribution activities with respect to such Licensed Products until such remedial steps have been taken to meet the Quality Standards as reasonably determined by Varian.
(b) During the term of this Agreement, if Varian notifies Varex of any notices that Varian is required to include with respect to the Licensed Marks, then Varex will ensure that any Licensed Products, Promotional Material, Licensed Product packaging, and Commercial Documentation related thereto comply with such notice requirements.
(c) Varian shall have the right, exercisable no more frequently than once per calendar year, to have a Third Party auditor, on reasonable notice to the Varex, enter, during regular business hours, any premises used by Varex or any member of its Group or any of their manufacturers for the manufacture, packaging or storage of the Licensed Products, to inspect such premises, all plant, workforce and machinery used for manufacture, packaging or storage of Licensed Products and all other aspects of the manufacture, packaging and storage of Licensed Products in each case at Varian’s expense (“Access Rights”). As a condition to exercising such Access Rights, Varex may require that such Third Party auditor enter into a nondisclosure agreement with Varex that (i) limits the content of any report made by such Third Party auditor to Varian to a description of the manner in which, and the conditions under which, the Licensed Products are manufactured, packaged and stored by Varex and the other members of its Group and their manufacturers; and (b) contains customary non-use and non-disclosure restrictions with respect to any trade secrets and/or confidential information of Varex.
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ARTICLE IV
PROSECUTION, MAINTENANCE, ENFORCEMENT AND DEFENSE
Section 4.01 Prosecution and Maintenance. As between the Parties, Varian shall have the sole right, but not any obligation, to prepare, file, prosecute and maintain any registrations or applications for registration with respect to the Licensed Marks and to take any actions in connection with any proceedings related to such registrations or applications for registration, in each case, at Varian’s sole cost and expense; provided, however, that if reasonably requested by Varian, Varex and the other members of its Group shall reasonably cooperate with Varian in connection with any such activities (including by executing any and all documents which Varian may reasonably request in support of such registrations and by providing any use evidence, testimony, or documentation that may be reasonably requested by Varian in any ex parte or inter partes administrative proceedings or prosecutions, maintenance or renewals involving registrations of the Licensed Marks), at Varian’s cost and expense. For clarity, Varian (or any member of its Group) may at any time discontinue maintenance of or otherwise abandon any registrations or applications for registration with respect to any Licensed Marks, without any obligation whatsoever to Varex or any member of its Group.
Section 4.02 Enforcement and Defense.
(a) Varex shall advise Varian reasonably promptly if (and in no event later than ten (10) business days after) Varex or any member of its Group becomes aware of any unauthorized Third-Party use of the Licensed Marks. Neither Varex nor any member of its Group shall take any steps to contact any Third Party with respect to any such unauthorized use.
(b) As between the Parties, Varian shall have the sole right, but not any obligation, to determine whether and in what manner to respond to any unauthorized Third-Party use of the Licensed Marks and shall be exclusively entitled to any remedies, including monetary damages, related thereto or resulting therefrom. As between the Parties, Varian shall have the sole right, but not any obligation, to defend and control the defense of the validity and enforceability of the Licensed Marks. If reasonably requested by Varian, Varex and the other members of its Group shall reasonably cooperate with Varian in connection with any such activities, at Varian’s cost and expense.
Section 4.03 Third Party Actions. Varex shall advise Varian promptly if Varex or any member of its Group becomes aware of any allegations, claims or demands (actual or threatened) that any use of the Licensed Marks by Varex or any member of its Group infringes any rights of any Third Party. Neither Varex nor any member of its Group shall enter into any settlement, admit any liability or consent to any judgment that would adversely affect the rights or interest of Varian or any member of its Group in and to the Licensed Marks without the prior written consent of Varian. Varian shall have the right to employ separate counsel and participate in the defense of any such action, at Varian’s own cost and expense.
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ARTICLE V
The rights and licenses granted under this Agreement are intended and shall be deemed to be a license of “intellectual property” within the meaning of Section 365(n) of the United States Bankruptcy Code (and any analogous provision of applicable Law outside the United States). If Section 365(n) of the United States Bankruptcy Code (or any analogous provision of applicable Law outside the United States) is applicable and the trustee or debtor-in-possession has rejected this Agreement and Varex (or any other member of its Group) has elected pursuant to Section 365(n) of the United States Bankruptcy Code (or any analogous provision of applicable Law outside the United States) to retain its rights hereunder, then upon the written request of Varex, the trustee or debtor-in-possession shall provide to Varex a complete duplicate of (or complete access to, as appropriate) any such intellectual property (including embodiments thereof) held or controlled by the trustee or debtor-in-possession.
ARTICLE VI
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(f) subject to clauses (a) through (e) above, all other rights and obligations of the Parties under this Agreement shall survive and remain in full force and effect. No termination of this Agreement shall affect any rights or obligations that may have accrued prior to such termination or limit any rights or remedies that may otherwise be available to a Party at law or in equity.
ARTICLE VII
Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any other member of such Party’s Group.
ARTICLE VIII
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
ARTICLE IX
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each of the other members of Varian’s Group and each of their respective past, present and future directors, officers, employees and agents, in each case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Varian Indemnitees”), from and against any and all Liabilities of the Varian Indemnitees in connection with any suit, investigation, claim or demand of any Third Party to the extent relating to, arising out of or resulting from (i) any breach of this Agreement by Varex or any member of its Group, (ii) any use by Varex or any member of its Group of the Licensed Marks or any exploitation by Varex or any member of its Group of Licensed Products or (iii) any gross negligence or willful misconduct of Varex or any member of its Group, or any of their directors, officers, employees or agents, in connection with this Agreement.
ARTICLE X
Section 10.02 Counterparts; Entire Agreement; Corporate Power.
(a) This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party.
(b) This Agreement, the Separation and Distribution Agreement and the Ancillary Agreements and the Exhibits, Schedules and appendices hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter, and there are no agreements or understandings
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between the Parties other than those set forth or referred to herein or therein. The Separation and Distribution Agreement and the Ancillary Agreements, including this Agreement, together govern the arrangements in connection with the Separation and Distribution and would not have been entered independently.
(c) Varian represents on behalf of itself and each other member of the Varian Group and Varex represents on behalf of itself and each other member of the Varex Group, as follows:
(i) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; and
(ii) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms hereof.
(d) Each Party acknowledges and agrees that delivery of an executed counterpart of a signature page to this Agreement (whether executed by manual, stamp or mechanical signature) by facsimile or by email in portable document format (PDF) shall be effective as delivery of such executed counterpart of this Agreement. Each Party expressly adopts and confirms each such facsimile, stamp or mechanical signature (regardless of whether delivered in person, by mail, by courier, by facsimile or by email in portable document format (PDF)) made in its respective name as if it were a manual signature delivered in person, agrees that it will not assert that any such signature or delivery is not adequate to bind such Party to the same extent as if it were signed manually and delivered in person and agrees that, at the reasonable request of the other Party at any time, it will as promptly as reasonably practicable cause this Agreement to be manually executed (any such execution to be as of the date of the initial date thereof) and delivered in person, by mail or by courier.
Section 10.03 Governing Law. This Agreement (and any Dispute arising out of or related hereto or to the transactions contemplated hereby or to the inducement of any Party to enter herein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall be governed by and construed and interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of laws principles of the State of Delaware, including all matters of validity, construction, effect, enforceability, performance and remedies.
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business segment, in either case ((i) or (ii)) so long as the resulting, surviving or transferee Person is not a competitor of the non-assigning Party, assumes the applicable rights and obligations by operation of Law or pursuant to a written agreement for the benefit of the non-assigning Party and exercises any assigned license or sublicense rights only in connection with the assets acquired from the assigning Party in such transaction, or (b) for the assignment of Varian’s rights and obligations under this Agreement with respect to any Licensed Xxxx in connection with a sale or other transfer of such Licensed Xxxx or Varian’s (or its applicable Group member’s) rights therein, so long as the assignee’s rights in such Licensed Xxxx remain subject to the licenses granted to Varex and the other members of its group hereunder.
If to Varian, to:
Varian Medical Systems, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
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If to Varex, to:
Varex Imaging Corporation
0000 X. Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Any Party may, by notice to the other Party, change the address to which such notices are to be given.
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“including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) unless otherwise specified in a particular case, the word “days” refers to calendar days; (h) references to “business day” shall mean any day other than a Saturday, a Sunday or a day on which banking institutions are generally authorized or required by law to close in the United States or New York, New York; (i) references herein to this Agreement or any other agreement contemplated herein shall be deemed to refer to this Agreement or such other agreement as of the date on which it is executed and as it may be amended, modified or supplemented thereafter, unless otherwise specified; and (j) unless expressly stated to the contrary in this Agreement, all references to “the date hereof,” “the date of this Agreement,” “hereby” and “hereupon” and words of similar import shall all be references to January 27, 2017.
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VARIAN MEDICAL SYSTEMS, INC. | ||
By: | /s/ Xxxx X. Xxx | |
Name: | Xxxx X. Xxx | |
Title: Senior Vice President, General Counsel and Corporate Secretary | ||
VAREX IMAGING CORPORATION | ||
By: | /s/ Xxxxxxxxx X. Xxxxxxxxx | |
Name: | Xxxxxxxxx X. Xxxxxxxxx | |
Title: Senior Vice President, General Counsel and Corporate Secretary |
[Signature Page to Trademark License Agreement]