EXHIBIT 10.28
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LICENSE AND DEVELOPMENT AGREEMENT
THIS LICENSE AND DEVELOPMENT AGREEMENT (the "AGREEMENT"), dated as of May
22, 2002 (the "EFFECTIVE DATE"), is made by and between RELIANT TECHNOLOGIES,
INC., a Delaware corporation ("RELIANT") having an office at 0000 Xxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxxxx 00000, and SURGICAL LASER TECHNOLOGIES, INC., a Delaware
corporation ("SLT") having an office at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000.
RECITALS
WHEREAS, Reliant has developed and sells certain CO2 laser accessories and
scanners primarily for use in cosmetic and surgical applications;
WHEREAS, SLT markets and sells lasers primarily for use in surgical
applications; and
WHEREAS, SLT desires to acquire, and Reliant is willing to grant to SLT, an
exclusive license under the Reliant Intellectual Property (as defined below) to
commercialize Products (as defined below) in the Field (as defined below), and
SLT desires to engage Reliant for the purpose of developing certain technology
to be used in Products, all subject to the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, the defined terms below shall have the
following meanings:
1.1 "AFFILIATE" means any person or entity which, directly or indirectly,
owns or controls a party hereto, or which is controlled by or under common
control with a party hereto. For purposes of this definition, "control" means
the ownership by a party hereto, directly or indirectly, of more than 50% of the
outstanding equity securities of a corporation entitled to vote in the election
of directors or the direct or indirect ownership by a person or entity of more
than 50% of the outstanding equity securities of a party hereto entitled to vote
in the election of the directors of a party hereto.
1.2 "FDA" means the United States Food and Drug Administration.
1.3 "FIELD" means use in surgical (including cosmetic and/or aesthetic)
applications or veterinary applications.
1.4 "RELIANT INTELLECTUAL PROPERTY" means the Reliant Patent Rights and
the Reliant Know-How.
1.5 "RELIANT KNOW-HOW" means all methods, technical directions, raw
materials lists, product specifications, analytical know-how, show how,
formulas, procedures, designs, protocols, manufacturing instructions, validation
reports, quality standards AND other directions that are owned by or under the
control of Reliant on the date hereof, which Reliant has the right to license,
sublicense and/or disclose to SLT, which are necessary or useful for the
commercial exploitation of the Reliant Patent Rights.
1.6 "RELIANT PATENT RIGHTS" means the patents set forth on Exhibit A.
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1.7 "NET SALES" means the gross amounts received by SLT, its Affiliates or
Sublicensees with respect to transfers of Products less (a) all trade, quantity
and cash discounts actually allowed and refunded, (b) all credits and allowances
actually granted upon claims, damaged goods, rejections or returns of a product,
including recalls, and upon billing errors or retroactive price reductions, and
(c) freight, postage, shipping, insurance and transportation costs actually
allowed or paid for delivery of product, to the extent billed, and (d) excise,
sales, value added, use taxes and other taxes (other than income taxes) levied
on, absorbed or otherwise imposed on sale of products, all as determined in
accordance with the standard accounting practices of the entity upon whose sales
the royalties are owed hereunder, consistently applied. Net Sales shall include
sales made by SLT to unaffiliated third parties, but shall not include sales of
Products between or among SLT or its Affiliates or Sublicensees unless such
purchasers are the end users of such Products; provided, however, that a
transfer of a Product by SLT to Surgical Innovations & Services ("SIS"), its
wholly-owned subsidiary, for the purpose of allowing SIS to provide such Product
to an end user in connection with services provided by SIS to such end user
shall be included in Net Sales, and the Net Sales attributable to such a
transfer shall be equal to the fully-burdened cost of such Product as derived in
accordance with generally accepted accounting principles, plus ten percent
(10%).
1.8 "PRODUCT" means any product or process for use in the Field which is
covered by Reliant Intellectual Property.
1.9 "SUBLICENSEE" means any commercial entity to which SLT has granted a
sublicense pursuant to the terms of Section 2.2 hereof.
ARTICLE 2
GRANT OF RIGHTS; TRANSFER OF TANGIBLE PROPERTY
2.1 GRANT. Subject to the terms and conditions of this Agreement and
during the Term, Reliant hereby grants to SLT a royalty-bearing license, with
the right to grant sublicenses in accordance with Section 2.2, under the Reliant
Intellectual Property solely to make, have made, use, import, offer for sale and
sell Products in the Field on a worldwide basis.
2.2 SUBLICENSING RIGHTS.
(A) SLT shall have the right to grant sublicenses under the rights
granted to it in Section 2.1, subject to the terms and conditions of this
Agreement; provided, however, that Reliant must approve of any such
sublicensee in writing prior to the grant of any such sublicense, such
approval not to be unreasonably withheld. A copy of any such sublicense
shall be provided to Reliant within five (5) days after its execution.
(B) Any sublicense granted by SLT under this Agreement shall be
subject and subordinate to, and consistent with, the terms and conditions
of this Agreement. SLT shall notify any Sublicensee of all rights and
obligations of SLT under this Agreement sublicensed to such Sublicensee. In
the event of a material default by any Sublicensee under a sublicense
agreement with SLT, SLT will inform Reliant and take such action which in
SLT's reasonable business judgment will effectively address such default.
(C) If Reliant terminates this Agreement for any reason, any such
sublicense shall also automatically terminate.
2.3 SALE OF TANGIBLE PROPERTY. Reliant shall sell and, within thirty (30)
days after the Effective Date, Reliant shall deliver to SLT the tangible
property set forth on Exhibit B together with all relevant drawings or other
documentation necessary to apply for and maintain FDA approval (and similar
regulatory approval in the European Union to the extent such documentation is
available to Reliant) of a Product (the "TANGIBLE ASSETS"). In addition, Reliant
shall use commercially reasonable efforts to assist SLT in transitioning the
product line embodied by the Tangible Assets to SLT, including, without
limitation, providing SLT with electronic copies of any drawings or other
relevant documentation available to Reliant. SLT shall be responsible for any
documentary transfer taxes and any sales, use or other taxes imposed by reason
of the transfer of the Tangible Assets provided hereunder and any deficiency,
interest or penalty asserted with respect thereto. With respect to the Tangible
Assets obtained by SLT pursuant to this Agreement, the tangible hardware only is
sold to SLT and not any underlying intellectual property rights. All Tangible
Assets delivered pursuant to this Agreement shall be packed for shipment by SLT
and shipped F.O.B. Reliant's manufacturing plant. Title to and risk of loss
shall pass to SLT upon delivery of the Tangible Assets to a common carrier.
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2.4 EXCLUSIVITY. SLT shall have exclusive right as to all parties,
including, without limitation, Reliant and its Affiliates, under the Reliant
Intellectual Property to make, have made, use, offer for sale, sell or import
the product lines embodied by the Tangible Assets as such product lines exist as
of the date of this Agreement, including, without limitation, the Unimax
micromanipulators, the Accuscan scanners, the Unica CO2 lasers, and other
couplers, adapters and hand pieces, all as set forth on Exhibit B hereto (the
"EXCLUSIVE PRODUCTS") in the Field. For avoidance of doubt, Reliant shall not
license any third party under the Reliant Intellectual Property to make, have
made, use, offer for sale, sell or import Exclusive Products in the Field.
2.5 TOOLING AND SOFTWARE LICENSE. Subject to the terms and conditions of
this Agreement and during the Term, Reliant hereby grants to SLT a royalty-free,
non-exclusive license to use the tooling currently used by Xxxxxxxxx Technology,
Inc. (the "TOOLING") and to use and execute the software (in object code form
only) currently used by Xxxxxxxxx Technology, Inc. (the "SOFTWARE") provided
with the Tangible Assets solely to make or have made the Products. SLT will not
(i) modify, reverse engineer, decompile, disassemble or otherwise attempt to
derive the source code of the Software, (ii) sublicense, lease, rent, sell,
distribute or otherwise transfer the Software to any third party, or (iii)
operate the Software in connection with a service bureau.
2.6 CONTENT LICENSE. Subject to the terms and conditions of this Agreement
and during the Term, Reliant hereby grants to SLT the right to download and
reproduce product images, Trademarks (in accordance with Section 2.7 below),
product descriptions, technology descriptions and Permitted Endorsements
(defined below) from the Reliant web site that are directly related to the
Tangible Assets solely for the purpose of marketing the Products (the
"CONTENT"). For purposes of this Section 2.6, a "Permitted Endorsement" is a
third party endorsement of a product for which such third party has approved in
writing its use on the SLT web site and in the SLT marketing literature related
to the Products. SLT will not modify such Content in any way, but may include
such Content on the SLT web site and in sales literature created by SLT. SLT
shall not make any representation or warranty related to any Product that is
inconsistent with any such Content.
2.7 TRADEMARK LICENSE. Subject to the terms and conditions of this
Agreement and during the Term, Reliant hereby grants to SLT a nonexclusive,
worldwide license to use only those trademarks of Reliant directly related to
the Exclusive Products and that are posted on Reliant's web site and solely to
market and sell Products (the "TRADEMARKS"). SLT shall at all times use the
Trademarks in conformance with Reliant's trademark usage policies, which Reliant
shall provide to SLT. Reliant may terminate the foregoing trademark license if,
in its sole discretion, SLT's use of any Trademark tarnishes, blurs or dilutes
the quality associated with the Trademark or the associated goodwill and such
problem is not cured within ten (10) days of notice of breach; alternatively,
instead of terminating the license in total, Reliant may specify that certain
uses by SLT may not contain any Trademark. Title to and ownership of each
Trademark shall remain with Reliant. SLT shall not take any action inconsistent
with Reliant's ownership of the Trademarks, and any goodwill accruing from use
of any Trademark shall automatically vest in Reliant. SLT shall not register any
Trademark in any jurisdiction, without the prior written consent of Reliant. In
addition, SLT shall not form any combination marks with any Trademark.
2.8 RIGHTS RESERVED. All rights not specifically granted to SLT hereunder
are retained by Reliant. Without limiting the generality of the foregoing, SLT
shall not have the right to practice the Reliant Intellectual Property outside
the Field. Notwithstanding the foregoing, nothing herein shall preclude either
party from independently developing new technology for use in any field. No
modification or improvement shall be made to the Exclusive Products, with the
exception of the Unica CO2 lasers, by SLT or its assignee or transferee without
the consent of Reliant, which Reliant shall not unreasonably withhold or delay.
Further, nothing herein, except for Section 2.9, shall preclude Reliant from
exploiting or licensing to any third party any or all Reliant Intellectual
Property for any purpose other than making, having made, offering for sale,
selling or importing Exclusive Products.
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2.9 RIGHT OF FIRST NEGOTIATION.
(A) In the event that Reliant develops a new invention that is a
patentable improvement or that involves Reliant Know-How and, in either
case, is either directly on the Exclusive Products or substantially related
to the Exclusive Products, and Reliant desires to license such technology
to any one or more third parties (each, a "RELIANT INVENTION"), Reliant
shall provide SLT with written notice thereof and hereby grants SLT the
first right of negotiation with respect to each such Reliant Invention.
With respect to each such Reliant Invention, SLT shall within thirty (30)
days after receipt of such notice notify Reliant in writing either that (i)
SLT is interested in negotiating to enter into a commercial license
therefor, or (ii) SLT has no interest in such Reliant Invention and
therefore rejects such right of negotiation with respect thereto. If SLT
notifies Reliant within thirty (30) days that SLT desires to negotiate to
enter into a commercial license with respect to a Reliant Invention, the
parties shall negotiate in good faith for up to sixty (60) days after such
notification regarding the terms pursuant to which Reliant would license
such Reliant Invention to SLT. Failure by SLT to give notice of its
interest or lack of interest in negotiating for such rights with respect to
a Reliant Invention within thirty (30) days after receipt of written notice
from Reliant as described in the first sentence of this Section 2.9 shall
be deemed to constitute a waiver by SLT of its right of first negotiation
with respect to such Reliant Invention. In addition, failure of the parties
to agree on the terms of a commercial license within such sixty (60) day
negotiation period shall be deemed to constitute rejection by SLT of such
right of negotiation with respect to such Reliant Invention. If SLT waives
or otherwise fails to exercise its right of first negotiation with respect
to any such Reliant Invention, or if the parties fail to agree on the terms
of a commercial license within such sixty (60) day negotiation period, then
Reliant shall be free to negotiate and/or enter into a license arrangement
with any third party with respect to such Reliant Invention on terms not
more favorable than the terms SLT negotiated for, and SLT shall have no
further rights with respect thereto; provided, however, that Reliant shall
not enter into any such arrangement with any third party prior to the date
that is eighteen (18) months after the Effective Date, and if Reliant
enters into such an arrangement after such date, and if the product that
incorporates the applicable Reliant Invention competes with the Exclusive
Products in the surgical or veterinary market, then (i) the royalty rate
set forth in Section 3.4 below shall be reduced from five percent (5%) to
two and one-half percent (2.5%), (ii) SLT's obligation to make the minimum
payments to be made in years four and five of this Agreement as set forth
in Section 3.4 shall terminate, (iii) and the exclusivity granted in
Section 2.4 shall terminate with respect to those claims of the Reliant
Patent Rights, if any, covering the Reliant Invention. In the event that
this Agreement is assigned or otherwise transferred pursuant to Section
12.5(ii), then the right of first negotiation under this Section 2.9 shall
be thereupon automatically rescinded.
(B) If at any time Reliant or its assignee, and not its licensee,
introduces a product that incorporates a Reliant Invention that competes
with Exclusive Products in the surgical or veterinary market, then Reliant
shall not be obliged to offer such product to SLT under the right of first
negotiation described in Section 2.9(a); provided, however, that: (i) the
royalty rate set forth in Section 3.4 below shall be reduced from five
percent (5%) to two and one-half percent, (ii) SLT's obligation to make the
minimum payments to be made in years four and five of this Agreement as set
forth in Section 3.4 shall terminate, (iii) and the exclusivity granted in
Section 2.4 shall terminate with respect to those claims of the Reliant
Patent Rights, if any, covering the applicable Reliant Invention.
ARTICLE 3
CONSIDERATION AND PAYMENTS
3.1 INITIAL PAYMENT. In partial consideration for the transfer of the
Tangible Assets and the license granted hereunder, SLT agrees to pay to Reliant
a nonrefundable, non-creditable fee equal to One Hundred Eighty Thousand Two
Hundred Twelve Dollars ($180,212), to be paid as follows:
(A) Fifty Thousand Dollars ($50,000) to be paid on the Effective Date;
(B) Twenty Five Thousand Dollars ($25,000) to be paid on or before
July 1, 2002; and
(C) Subject to adjustment as set forth in the Promissory Note, One
Hundred Five Thousand Two Hundred Twelve Dollars ($105,212) to be paid
pursuant to a secured promissory note, the form of which is attached hereto
as Exhibit C (the "PROMISSORY NOTE"); provided, however, that if SLT
resells Tangible Assets in any month during the term of the Promissory Note
such that the proceeds from such sales exceed the applicable monthly
payment under the Promissory Note, then SLT shall pay Reliant an amount
equal to the actual amounts received from third parties attributable to
such resales of such Tangible Assets and such additional amount shall be
credited as a repayment of principal under the First Promissory Note,
whereupon the Promissory Note shall be reamortized accordingly.
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3.2 ASSUMPTION OF PURCHASE ORDERS. In addition, SLT hereby assumes
Reliant's obligations under the purchase orders entered into between Reliant and
Xxxxxxxxx Technology, Inc. dated August 28, 2001, copies of which are attached
hereto as Exhibit D, and Reliant hereby assigns and delegates its rights and
obligations under such purchase orders to SLT. SLT hereby agrees to discharge
Reliant's obligations under such purchase orders in a timely manner, and Reliant
shall no longer have any obligation or liability to Xxxxxxxxx Technology, Inc.
under such purchase orders. SLT shall be free to renegotiate the terms and
conditions of such purchase order with Xxxxxxxxx Technology, Inc. directly.
3.3 FACILITY LEASE. In addition, SLT shall pay Reliant an aggregate amount
equal to Nine Thousand Dollars ($9,000) as a contribution toward Reliant's
facility lease payments for Reliant's Xxxxxx City office in three (3) equal
monthly installments of Three Thousand Dollars ($3,000) for the period beginning
on May 15, 2002 and ending on August 31, 2002. Such payments shall be made
directly to Reliant on or before the first day of June, July and August 2002.
3.4 ROYALTIES. Subject to adjustment as set forth in Section 2.8 and
during the Term, in partial consideration of the license granted hereunder, SLT
agrees to pay Reliant royalties of five percent (5%) of Net Sales of each
Product in accordance with Section 5.1; provided, however, that SLT shall pay
Reliant Two Hundred Sixty-Eight Thousand Twenty-Three Dollars ($268,023) as an
advance on such royalties in accordance with the payment schedule set forth on
Schedule 3.4 attached hereto (the "ROYALTY ADVANCE PAYMENTS"); provided,
further, however, that during the fourth and fifth year of the Initial Term, a
minimum annual royalty of Fifty Thousand Dollars ($50,000) shall be deemed to
have been earned, even if the actual amount of Net Sales during each such period
is less than One Million Dollars ($1,000,000). (Such minimum annual royalties
shall be deemed earned in equal quarterly installments of Twelve Thousand Five
Hundred Dollars ($12,500) in accordance with Section 5.1(a)). Each Royalty
Advance Payment shall be credited and applied toward any royalties on Net Sales
of Products actually earned or deemed to have been earned, and such credits
shall carry forward until all such credits are exhausted; provided, however,
that SLT's Royalty Advance Payments shall not, except as set forth in Section
11.2 be refundable in the event Net Sales of Products during the Term of this
Agreement are insufficient to offset the total aggregate Royalty Advance
Payments. No multiple royalties shall be payable because any Product, or its
manufacture, use or sale is covered by more than one claim, patent or other
intellectual property right within the Reliant Intellectual Property.
3.5 DEVELOPMENT FEES. In consideration for the technology development
services to be provided by Reliant pursuant to Article 4, SLT shall pay Reliant
Two Thousand Dollars ($2,000) per day, plus reasonable out-of-pocket expenses,
for each day that development services are performed from the Effective Date
until such development services are completed (the "DEVELOPMENT FEES");
provided, however, that SLT shall pay a minimum of Twenty-Four Thousand Dollars
($24,000) for twelve (12) days of such services to be rendered by September 15,
2002, provided that for any such day of service Reliant provides SLT that SLT
requests such service at least five (5) days in advance. Such Development Fees
shall be paid monthly within fifteen (15) days after receipt of invoice from
Reliant.
3.6 LATE PAYMENTS. Interest shall accrue on any late payments hereunder at
the rate of one and one-half percent (1.5%) per month or partial month during
which any sums due and owing hereunder remain unpaid, or the highest rate
permitted by applicable law, whichever is lower, from the date that is ten (10)
days after such amount is due until finally paid.
ARTICLE 4
TECHNOLOGY DEVELOPMENT
4.1 DEVELOPMENT. An initial Statement of Work (defined below) is attached
hereto as Exhibit F, which sets forth the technology development services to be
performed by Reliant for SLT along with a schedule upon which such services are
to be performed. The parties acknowledge and agree that the schedule set forth
in the initial Statement of Work shall begin on the Effective Date and end
September 15, 2002. Reliant acknowledges that the development services to be
performed by Reliant hereunder will be performed by Xxxxxxx Xxxxx for so long as
Mr. Black remains an employee of Reliant. Any amendments or revisions to any
Statement of Work shall be in writing and agreed upon by both parties in
accordance with Section 4.2. Additional Statements of Work mutually agreed to by
the parties and related to additional research and development efforts between
the parties may also be attached hereto under Exhibit F. The initial Statement
of Work and each additional Statement of Work shall be referred to herein as a
"STATEMENT OF WORK."
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4.2 PROGRAM MANAGEMENT AND CHANGES. Each party designates the person(s)
set forth on the Statement of Work as the primary contact of each party with
respect to the matters set forth in this Article 4, which person(s) may be
re-designated by a party by written notice to the other. In the event of a
proposed change in any material aspect of any Statement of Work, the parties
must mutually agree to any such change in writing prior to its implementation. A
proposed change shall be initiated by the requesting party in a written notice
to the other party. Unless otherwise agreed, the other party shall review such
proposal and respond to the requesting party within ten (10) business days after
receipt of such change proposal. The parties agree to discuss in good faith the
effect on each party of such proposed change, including any effect on the
objectives and/or cost of the relevant development project, but no change
proposal shall be binding on either party until mutually agreed to in writing.
4.3 OWNERSHIP.
(A) Except as expressly set forth herein, neither this Agreement, the
Statement of Work, nor any development services provided by Reliant
hereunder, shall give either Reliant or SLT any ownership interest or
rights in intellectual property of the other party. All intellectual
property rights that are owned or controlled by a party, including, without
limitation, in the case of Reliant, the Reliant Intellectual Property,
shall remain under the ownership or control of such party throughout the
Term and thereafter.
(B) SLT shall own the entire right, title and interest in and to all
technology developed or invented pursuant to the Statement of Work, whether
solely by a party or jointly by the parties, and any and all intellectual
property rights related thereto (collectively, the "DEVELOPED TECHNOLOGY"),
and Reliant hereby assigns to SLT all right, title and interest, if any,
Reliant has in any such Developed Technology. In addition, Reliant hereby
agrees to cooperate with SLT, at SLT's reasonable request and expense, in
connection with any efforts SLT may take to protect such Developed
Technology. SLT hereby grants to Reliant a fully paid, royalty free,
perpetual, irrevocable, non-exclusive license, with the right to grant
sublicenses, under the Developed Technology to develop, make, have made,
use, offer for sale, sell, import, copy and distribute products for use in
applications other than surgical applications or veterinary applications.
ARTICLE 5
REPORTS
5.1 BOOKS AND RECORDS.
(A) SLT shall keep proper records and books of account in accordance
with generally accepted accounting practices, showing the sales upon which
the royalty payments of SLT are based, and all other information necessary
for the accurate determination of payment to be made to Reliant hereunder.
In addition, SLT shall include in each sublicense agreement it enters into
hereunder reporting requirements, record retention and audit provisions
substantially similar to those contained in this Article 5, and SLT shall
make available to Reliant any such Sublicensee royalty reports upon
Reliant's request and shall, if requested by Reliant, initiate an audit of
such Sublicensee's books and records, at Reliant's expense. SLT agrees to
deliver to Reliant within thirty (30) days following each calendar quarter
in which the license granted herein remains in effect a report showing the
information on which the payments herein provided are calculated, along
with any payment due thereby. All such reports made by SLT to Reliant shall
be treated as Confidential Information subject to Article 6.
(B) SLT shall keep proper records and documentation (in both
electronic and hard copy format) in accordance with any applicable
regulations promulgated by the FDA (the "FDA DOCUMENTATION"). All such FDA
Documentation shall be treated as Confidential Information subject to
Article 6.
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5.2 AUDIT. On twenty (20) days prior written notice, Reliant shall have
the right to inspect the books and records of SLT and its Affiliates, twice per
calendar year during usual business hours for the sole purpose of and only to
the extent necessary to verify (i) the completeness and accuracy of the records
and payments made under this Agreement, and/or (ii) the retention of proper FDA
Documentation. So long as SLT maintains its ISO 9001 qualification, it shall be
deemed that SLT has duly retained proper FDA Documentation. Such inspection with
respect to royalties and royalty payments shall be made by an independent
certified public accountant. Such examination with respect to any fiscal year
shall not take place later than three (3) years following the end of such fiscal
year. The expense of any such inspection shall be borne by Reliant; provided,
however, that, if any inspection (except the first such inspection) discloses a
royalty payment error in excess of five percent (5%) in favor of SLT, then SLT
shall pay the full cost of such audit.
ARTICLE 6
CONFIDENTIAL INFORMATION
6.1 CONFIDENTIAL INFORMATION. Each party, and its Affiliates and any
Sublicensees shall treat as confidential all Confidential Information received
from another party, shall not use such Confidential Information except as
expressly set forth herein or otherwise authorized in writing, shall implement
reasonable procedures to prohibit the unauthorized disclosure, unauthorized
duplication, misuse or removal of such Confidential Information and shall not
disclose such Confidential Information to any third party except as may be
necessary and required in connection with the rights and obligations of such
party under this Agreement and U.S. government regulations, and subject to
confidentiality obligations at least as protective as those set forth herein.
Without limiting the foregoing, each of the parties shall use at least the same
procedures and degree of care which it uses to prevent the disclosure of its own
confidential information of like importance to prevent the disclosure of
Confidential Information. As used herein, the term "CONFIDENTIAL INFORMATION"
means the Reliant Intellectual Property, as well as any information expressly
designated as Confidential Information in this Agreement and information
disclosed by one party to another pursuant to this Agreement which is in
written, graphic, machine readable or other tangible form and is marked
"Confidential" to indicate its confidential nature. Confidential Information may
also include oral information disclosed by one party to another pursuant to this
Agreement, provided that such information is designated as confidential at the
time of disclosure and within thirty (30) days after its oral disclosure is
reduced to a written summary by the disclosing party, which summary is marked in
a manner to indicate its confidential nature and delivered to the receiving
party.
6.2 EXCEPTIONS. Notwithstanding the above, neither party has any
obligation of confidentiality under this Agreement with respect to any
information which the receiving party can show:
(A) was known to the receiving party prior to the time of disclosure
thereof by the disclosing party; or
(B) without breach of this Agreement, has been published or was
otherwise available to the public at any time whether before or after the
time of disclosure to such party; or
(C) is at any time lawfully received by such party from a third party
who has no obligation of confidence to a party hereunder in respect hereof.
6.3 PERMITTED DISCLOSURES. Notwithstanding the provisions of Article 6
hereof, Reliant and SLT may, to the extent necessary, disclose and use
Confidential Information (i) for the purposes of securing institutional or
governmental approval to clinically test or market any Product, (ii) to comply
with court rule or governmental law or regulation, provided that the receiving
party gives the disclosing party prompt notice of any such requirement and
cooperates with the disclosing party in attempting to limit such disclosure, and
(iii) to its accountants, legal counsel and other professional advisors who are
under professional duties to maintain the confidentiality thereof or, subject to
obtaining confidentiality protections comparable to those set forth herein, to
banks or other financing sources or to parties with whom such party may be
considering a business combination or other strategic transaction.
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ARTICLE 7
REPRESENTATION AND WARRANTIES
7.1 RELIANT. Reliant represents and warrants that:
(A) it is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and it has the corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder;
(B) the execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of Reliant;
(C) the execution, delivery and performance of this Agreement does not
violate any separate agreement it has with any other person or entity;
(D) it is not a party to any agreement or arrangement that would
prevent it from carrying out its obligations to the other party under this
Agreement;
(E) to its knowledge, without any duty to investigate, the Tangible
Assets do not infringe any U.S. Patent issued as of the date hereof;
(F) [Intentionally Left Blank];
(G) there is no interference action or other litigation pending or
threatened in writing before the United States Patent and Trademark Office
or any other governmental entity in any jurisdiction in regard to any
Reliant Intellectual Property;
(H) Reliant owns the Tangible Assets free and clear of any liens or
encumbrances (excluding claims for infringment), and upon the sale and
transfer thereof to SLT in accordance with the terms of this Agreement, SLT
will hold title to such Tangible Assets free and clear of any liens or
encumbrances (excluding claims for infringement);
(I) to the knowledge of Xxxxxxx Xxxx and Xxxxx Xxxx (principals of
Reliant), it owns, or has the unrestricted right to use, the Reliant
Intellectual Property and has the unrestricted right to grant the license
granted hereunder to SLT; and
(J) to the knowledge of Xxxxxxx Xxxx and Xxxxx Xxxx (principals of
Reliant), there is no party using or infringing all or any portion of the
Reliant Intellectual Property in derogation of the rights granted to SLT in
this Agreement.
7.2 SLT. SLT represents and warrants that:
(A) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and it has the corporate
power and authority to enter into this Agreement and to perform its
obligations hereunder;
(B) the execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action on the part of SLT;
(C) the execution, delivery and performance of this Agreement does not
violate any separate agreement it has with any other person or entity; and
(D) it is not a party to any agreement or arrangement that would
prevent it from carrying out its obligations to the other party under this
Agreement.
34
7.3 NEGATION OF WARRANTIES. Nothing in this Agreement is or shall be
construed as:
(A) a warranty or representation by Reliant as to the validity or
scope of any Reliant Patent Rights;
(B) an obligation to bring or prosecute actions or suits against third
parties for infringement;
(C) granting by implication, estoppel, or otherwise any licenses or
rights under patents or other rights of Reliant or other persons other than
Reliant Intellectual Property, regardless of whether such patent or other
rights are dominant or subordinate to any Reliant Intellectual Property; or
(D) an obligation to furnish any technology or technological
information other than Reliant Know-How or the Tangible
Assets.
7.4 DISCLAIMER. Except as expressly set forth in this Agreement, RELIANT
MAKES NO REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE RELIANT
INTELLECTUAL PROPERTY, THE TANGIBLE ASSETS, THE TOOLING, THE SOFTWARE, THE
CONTENT, THE TRADEMARKS OR ANY PRODUCT, OR THAT THE USE OF THE SOFTWARE, THE
CONTENT, THE TRADEMARKS OR ANY PRODUCT WILL NOT INFRINGE ANY PATENT, COPYRIGHT,
TRADEMARK OR OTHER RIGHTS. FOR AVOIDANCE OF DOUBT, RELIANT IS TRANSFERRING THE
TANGIBLE ASSETS TO SLT "AS IS" AND "WITH ALL FAULTS."
ARTICLE 8
INTELLECTUAL PROPERTY RIGHTS
8.1 APPLICATION, PROSECUTION AND MAINTENANCE OF RELIANT PATENT RIGHTS.
Reliant shall, at its sole cost, file, prosecute and mainten the Reliant Patent
Rights.
8.2 INFRINGEMENT BY THIRD PARTIES. If either party hereto becomes aware
that any Reliant Patent Rights are being or have been infringed by any third
party, such party shall promptly notify the other party hereto in writing
describing the facts relating thereto in reasonable detail. Reliant shall have
the initial right, but not the obligation, to institute, prosecute and control
any action, suit or proceeding (an "ACTION") with respect to such infringement
of Reliant Patent Rights, including defending any declaratory judgment action,
at its expense, using counsel of its choice. In the event that such infringement
relates to any Product, SLT shall have the right to participate in any such
Action, at its own expense, using counsel of its choice. Any amounts recovered
from third parties in any such Action shall be used first to fully reimburse
Reliant and SLT for their costs associated with such Action (including
attorneys' and expert fees) and any remainder shall be divided equally between
the parties. If Reliant does not initiate or defend any Action involving Reliant
Patent Rights that involves infringement relating to any Product within (a) 90
days after receiving notice of any alleged infringement or (b) 10 days before
the time limit, if any, set forth in the appropriate laws and regulations for
the filing of such actions, whichever comes first, then SLT shall have the
right, but not the obligation, to initiate and control such an Action, and
Reliant shall cooperate reasonably with SLT, at SLT's request, in connection
with any such Action. Reliant shall have the right to participate in any such
Action, at its own expense, using counsel of its choice. Any amounts recovered
in such Action shall be used first to reimburse SLT and Reliant for the expenses
incurred in connection with such Action (including attorneys' and expert fees),
and any recovery that a court of competent jurisdiction designates as lost
profits shall be considered Net Sales subject to royalties hereunder and any
remainder shall be divided between the parties equally.
8.3 INFRINGEMENT OF THIRD PARTY RIGHTS. If the exercise by SLT of the
license rights granted by Reliant to SLT herein results in any claim of patent
infringement by a third party against SLT, SLT shall have the right to defend
any such claim, suit or proceeding against SLT, at its sole expense, by counsel
of its own choice and shall have the right and authority to settle any such
suit. Reliant shall cooperate with SLT, at SLT's reasonable request and sole
expense, in connection with the defense of such claim. Reliant shall have right
to participate in any such defense, at its own expense, using counsel of its
choice.
35
ARTICLE 9
INDEMNIFICATION
9.1 Reliant agrees to indemnify and hold SLT, its Affiliates, and their
respective officers, directors, shareholders, employees and agents, harmless
against all costs, claims, action, suits, losses, damages, liability and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) (collectively, "Losses") to the extent arising from a breach of
Reliant's obligations, representations and warranties hereunder.
9.2 SLT agrees to indemnify and hold Reliant, its Affiliates, and their
respective officers, directors, shareholders, employees and agents, harmless
against all Losses to the extent arising from a breach of SLT's obligations,
representations and warranties hereunder.
9.3 A person that intends to claim indemnification under Section 9.1 or
Section 9.2 (each, an "INDEMNITEE") shall promptly notify the other party (each,
an "INDEMNITOR") in writing of any claim in respect of which the Indemnitee
intends to claim such indemnification, and the Indemnitor shall have sole
control of the defense and/or settlement thereof, provided that the Indemnitee
may participate in any such proceeding with counsel of its choice at its own
expense. The indemnity agreement in this Article 9 shall not apply to amounts
paid in settlement of any claim if such settlement is effected without the
consent of the Indemnitor, which consent shall not be withheld unreasonably. The
Indemnitee under this Article 9, its employees and agents, shall cooperate fully
with the Indemnitor and its legal representatives and provide full information
in the investigation of any claim covered by this indemnification.
ARTICLE 10
CERTAIN OTHER AGREEMENTS
10.1 DILIGENCE. During the first, second and third year of the Initial
Term, SLT shall use commercially reasonable efforts to market and sell Products
in the Field. If SLT fails to use such commercially reasonable efforts during
such time period, Reliant shall be entitled to: (i) after notice and thirty (30)
days to cure such failure, convert the license granted under Section 2.1 into a
non-exclusive license, or (ii) treat such failure as a breach of this Agreement
pursuant to Section 11.2 hereof.
10.2 FDA DOCUMENTATION. Upon reasonable request by Reliant, SLT shall
promptly provide Reliant with any and all FDA Documentation necessary for
Reliant to prosecute any patent or to otherwise comply with any FDA regulation
or request.
10.3 NEW PATENT FILINGS. SLT may request Reliant to file new patent
applications covering Products to be sold in the Field. The parties shall
mutually agree on the substance and scope of any such patents. If Reliant, in
its sole discretion, desires to pursue such patent or patents, Reliant shall pay
for any and all costs associated with preparing, filing, prosecuting and
maintaining such patent applications or patents with the assistance of counsel
chosen by Reliant. For avoidance of doubt, any such patent application or patent
that issues therefrom shall be the sole and exclusive property of Reliant but
shall be deemed a Reliant Patent Right hereunder.
10.4 TRAINING. SLT may request training services to be provided by Reliant
upon terms to be agreed upon between the parties; provided, however, that the
parties agree and acknowledge that Xxxx Xxxxx and Xxxx Xxxxxx shall provide such
training for so long as the same are employees of Reliant.
10.5 RELIANT PURCHASES OF PRODUCTS. Subject to availability, Reliant shall
be entitled to purchase up to fifty (50) Products (and related parts) during the
Term for Reliant's internal use at SLT's fully burdened cost derived in
accordance with generally accepted accounting principles, plus ten percent (10%)
on terms and conditions set forth in separate written purchase orders.
36
10.6 TESTING EQUIPMENT. Within the ninety (90) days after the Effective
Date, SLT may purchase from Reliant the testing equipment set forth below at
Reliant's replacement cost for such item as set forth below, the terms and
conditions of any such sale to be set forth in a separate written purchase
order:
(A) CO2 Laser $10,000
(B) Microscope $12,000
(C) Extra Lenses $ 2,000
(D) Microscope Stand $ 2,500
(E) Beam Scanner $14,000
(F) Power Meter $ 3,000
ARTICLE 11
TERM AND TERMINATION
11.1 TERM. This Agreement shall become effective as of the Effective Date
and shall continue in full force and effect until the fifth (5th) anniversary of
the Effective Date (the "INITIAL TERM"). This Agreement shall automatically
renew for an additional term to expire upon the expiration of the last to expire
of the Reliant Patent Rights (the "RENEWAL TERM") unless SLT provides Reliant
written notice to the contrary at least sixty (60) days prior to the expiration
of the Initial Term. The Initial Term and the Renewal Term may be referred to
herein collectively as the "TERM."
11.2 TERMINATION FOR CAUSE. If either party breaches this Agreement (or
the Promissory Note), the other party may elect to give the breaching party
written notice describing the alleged breach. If the breaching party has not
cured such breach within thirty (30) days (ten (10) days for any payment breach
hereunder or under the Promissory Note) after receipt of such notice, the
notifying party will be entitled, in addition to any other rights it may have
under this Agreement or under applicable law, to terminate this Agreement
effective immediately; provided, however, that if the cure of such breach in
good faith takes longer than such thirty (30) period, then the parties shall
entertain a longer cure period, provided that the curing party embarks on same
and diligently prosecutes and pursues such cure to completion. Notwithstanding
the foregoing, breach of Section 12.5 shall entitle either party to terminate
this Agreement immediately upon written notice. In the event that it is
established that as of the Effective Date, Reliant did not own, or have the
unrestricted right to use, the Reliant Intellectual Property or have the
unrestricted right to grant the license granted hereunder to SLT, or in the
event that as of the Effective Date Reliant did not own the Tangible Assets free
and clear of any material liens or encumbrances of any kind, then SLT shall have
the right, as its sole and exclusive remedy, to terminate this Agreement;
provided, however, that any Advance Royalty Payments made by SLT as of the date
of such termination by SLT which have not yet been offset by earned or deemed
earned royalties, shall be reimbursed to SLT by Reliant within thirty (30) days
after such termination. Notwithstanding the foregoing, SLT's obligations under
the Promissory Note shall continue in accordance with its terms notwithstanding
any termination of this Agreement.
11.3 TERMINATION FOR INSOLVENCY. If voluntary or involuntary proceedings
by or against a party are instituted in bankruptcy under any insolvency law, or
a receiver or custodian is appointed for such party, or proceedings are
instituted by or against such party for corporate reorganization or the
dissolution of such party, which proceedings, if involuntary, shall not have
been dismissed within sixty (60) days after the date of filing, or if such party
makes an assignment for the benefit of creditors, or if all or substantially all
of the assets of such party are seized or attached and not released within sixty
(60) days thereafter, the other party may immediately terminate this Agreement
effective upon notice of such termination.
11.4 TERMINATION DUE TO FORCE MAJEURE. Either party may terminate this
Agreement upon written notice thereof, in the event a force majeure event occurs
pursuant to Section 12.3 and continues to occur for a continuous period of one
hundred and twenty (120) days.
37
11.5 EFFECT OF TERMINATION. Upon any termination of this Agreement for any
reason, the license granted in Section 2.1 shall terminate and all rights to the
Reliant Intellectual Property will revert to Reliant. In addition, SLT will
deliver or return to Reliant any and all FDA Documentation. In addition, if this
Agreement is terminated by Reliant pursuant to Section 11.2 or 11.3, SLT will
execute any and all documentation necessary to assign all right, title and
interest in and to the Developed Technology to Reliant. Expiration or
termination of this Agreement shall not relieve the parties of any obligation
accruing prior to such expiration or termination. Solely upon expiration of the
Renewal Term, Reliant hereby grants to SLT a fully paid, royalty-free license
under the Reliant Know-How solely to make, have made, offer for sale, sell and
import Products. Upon termination of this Agreement, SLT shall have one hundred
eighty (180) days in which to dispose of any of its Exclusive Products, or parts
thereof.
11.6 SURVIVAL. Article 1, Sections 5.1 and 5.2, Article 6, Article 7,
Article 9, Sections 11.4 and 11.5 and Article 12 of this Agreement shall survive
expiration or termination of this Agreement for any reason.
ARTICLE 12
MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement shall be governed by and construed
solely and exclusively in accordance with the laws of the State of California,
as such laws are applied to contracts entered into and to be performed entirely
within such state.
12.2 RELATIONSHIP OF THE PARTIES. The relationship of the parties is that
of independent contractors, and nothing contained herein will constitute the
parties to be partners, joint venturers, or agents of the other, or to create
the relationship of employer and employee.
12.3 FORCE MAJEURE. Neither party will be responsible to the other party
for nonperformance or delay in performance of any terms or conditions of this
Agreement (other than payment) due to acts of God, earthquake, fire, acts of
government, wars, riots, strikes, accidents in transportation, or other causes
beyond its reasonable control.
12.4 NOTICES. Any notice required or permitted to be given under this
Agreement will be sufficient if in writing and delivered personally, by
recognized national overnight courier, or by registered or certified mail,
postage prepaid and return receipt requested, at the address below or to such
other address as the parties will designate by notice to the other in accordance
with this Section 12.4, and will be deemed to have been given as of the date of
personal delivery, or as of the date on the receipt or as of the date returned
unclaimed if sent by registered or certified mail, or by overnight courier:
IF TO RELIANT: RELIANT TECHNOLOGIES, INC.
Attn: Chief Executive Officer
0000 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
IF TO SLT: SURGICAL LASER TECHNOLOGIES, INC.
Attn: Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
12.5 ASSIGNMENT. This Agreement shall not be assignable (whether by
operation of law, merger or otherwise) by a party hereto without the written
consent of the other party, which shall not be unreasonably withheld, except
that: (i) Reliant may assign or otherwise transfer this Agreement and the rights
and obligations hereunder without SLT's consent to any of its Affiliates; and
(ii) Reliant or SLT may assign or otherwise transfer this Agreement to a
successor to all or substantially all of its business or assets to which this
Agreement pertains, whether by merger, sale, operation of law, change of control
transaction or otherwise, where such successor may be any party except a
Prohibited Party listed in confidential Exhibit G. For purposes of this Section
12.5, a change of control transaction shall be a transaction in which the
stockholders of the party immediately prior to such transaction own less than
fifty percent (50%) of such party's voting power immediately after such
transaction or any transaction or series of transactions in which more than
fifty percent (50%) of the voting power of such party is transferred. This
Agreement shall be binding upon and inure to the benefit of the permitted
successors and assigns of the parties.
38
12.6 COMPLIANCE WITH LAWS. Each party shall perform this Agreement in
compliance with all applicable federal, state and local laws, rules and
regulations. Each party shall furnish to the other party any information
requested or required by that party during the term of this Agreement or any
extensions hereof to enable that party to comply with the requirements of any
U.S. or foreign federal, state and/or government agency.
12.7 WAIVER. No waiver of any breach of any provision of this Agreement
will constitute a waiver of any prior, concurrent, or subsequent breach of the
same or any other provisions hereof, and no waiver will be effective unless made
in writing signed by both parties.
12.8 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision will be fully severable; this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions of this
Agreement will remain in full force and effect.
12.9 LIMITATION OF LIABILITY. Except for amounts payable under article 3,
each party shall be liable to the other only for actual damages and not for any
special, consequential, incidental or indirect damages arising out of this
agreement, however caused, under any theory of liability.
12.10 ENTIRE AGREEMENT. The parties acknowledge that this instrument,
including Schedule 3.4 and Exhibits A, B, C, D, E, F and G attached hereto, sets
forth the entire agreement and understanding of the parties hereto as to the
subject matter hereof and supersedes all prior communications, agreements and
negotiations between the parties with respect thereto. This Agreement shall not
be subject to any change or modification except by the execution of a written
instrument subscribed to by the parties hereto.
12.11 CONFIDENTIAL TERMS. Except as expressly provided herein, each party
agrees not to disclose any financial terms of this Agreement to any third party
without the written consent of the other party, except as required or deemed to
be required or appropriate by a party's external securities counsel, by
securities or other applicable laws, to prospective investors and to such
party's accountants, attorneys and other professional advisors.
12.12 COUNTERPARTS. This Agreement may be executed in counterparts or by
facsimile, each of which shall be deemed to be an original and both together
shall be deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
RELIANT TECHNOLOGIES, INC. SURGICAL LASER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------- ----------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxx
--------------- ------------------
Title: President Title: President and CEO
--------- -----------------
39
EXHIBIT A
RELIANT PATENTS
------------------------------------------------------------------------------
PATENT DESCRIPTION | NUMBER
----------------------------------------------------|--------------------------
Method and apparatus for treating a surface with a | U.S. Patent No. 5995265
scanning laser beam. |
----------------------------------------------------|--------------------------
Method and apparatus for treating a surface with a | U.S. Patent No. 5786924
scanning laser beam - intensity cross-section. |
----------------------------------------------------|--------------------------
Additional method and apparatus for treating a | U.S. Patent No. 5546214
surface with a scanning laser beam. |
----------------------------------------------------|--------------------------
Infrared laser with a blue-green aiming beam. | U.S. Patent No. 5420882
----------------------------------------------------|--------------------------
Method and apparatus for transforming and steering | U.S. Patent No. 5128509
laser beams. |
----------------------------------------------------|--------------------------
Endoscopic mirror laser beam delivery system and | U.S. Patent No. 5163936
method for controlling alignment. |
------------------------------------------------------------------------------
40
EXHIBIT B
TANGIBLE ASSETS
RELIANT
TECHNOLOGY, INC.
INVENTORY LIST
---------------------------------------------------------------------------------------------------------------------
ITEM ID ITEM CLASS ITEM DESCRIPTION UNIT COST METHOD QTY ON HAND
---------------------------------------------------------------------------------------------------------------------
0000-000-00 Stock item Nut, Joystick FIFO 25.00
0000-000-00 Stock item Bushing, Joystick FIFO 48.00
0000-000-00 Stock item Shaft Assembly, Joystick FIFO 51.00
0000-000-00 Stock item Shaft Assembly FIFO 52.00
0000-000-00 Stock item Mount Telescope FIFO 35.00
0000-000-00 Stock item Adapter Co2 Laser, Laser Eng. FIFO 11.00
0000-000-00 Stock item Insert 1, Joystick FIFO 47.00
0000-000-00 Stock item Mirror, Spher Convex-Fabricat FIFO 191.00
0000-000-00 Stock item Nut, Beam Alg. Indicator FIFO 46.00
0000-000-00 Stock item Nut, Telescope FIFO 57.00
0000-000-00 Stock item Nut-2, Telescope FIFO 36.00
0000-000-00 Stock item Housing, Telescope FIFO 30.00
0000-000-00 Stock item Sleeve - Focal, Telescope FIFO 35.00
0000-000-00 Stock item Plate, Telescope FIFO 27.00
0000-000-00 Stock item Tail, Telescope FIFO 45.00
0000-000-00 Stock item Pin-Slider, Telescope FIFO 73.00
0000-000-00 Stock item Nut, Slider FIFO 35.00
0000-000-00 Stock item Adapter, CO2 Laser, HLS FIFO 19.00
0000-000-00 Stock item ADAPTER, CO2 LASER, HLS FIFO 5.00
0000-000-00 Stock item Adapter, CO2 Laser Coherent FIFO 4.00
0000-000-00 Stock item Screw, Mirror Mount FIFO 31.00
0000-000-00 Stock item Pin Holder, Micromanipulator FIFO 55.00
0000-000-00 Stock item Handle, Round, Micromanipulato FIFO 28.00
0000-000-00 Stock item Washer2, Thurst, Telescope FIFO 45.00
0000-000-00 Stock item Adapter To Wild Micrscope FIFO 2.00
0000-000-00 Stock item Ring, Spring FIFO 50.00
0000-000-00 Stock item Body Joystick FIFO 65.00
0000-000-00 Stock item Label, Unimax 2000, S/N FIFO 418.00
0000-000-00 Stock item Label, Laser Aperture FIFO 130.00
0000-000-00 Stock item Ad Micr Storz/Siem/Wild FIFO 1.00
0000-000-00 Stock item Body-Joystick, Fixed FIFO 3.00
0000-000-00 Stock item Handle, Oval, Micromanipulator FIFO 1.00
0000-000-00 Stock item Plate, Dovetail, Female FIFO 60.00
0000-000-00 Stock item Adapter,CO2 Laser, Surgilase FIFO 14.00
0000-000-00 Stock item Adapt ZEISS OPMI FIFO 3.00
0000-000-00 Stock item JOYSTICK EXTENSION FIFO 4.00
0000-000-00 Stock item ADAPTER, CO2 LASER XANAR/COHER FIFO 5.00
41
0000-000-00 Stock item Body, Micromanipulator FIFO 35.00
0000-000-00 Stock item BUSHING, INDICATOR FIFO 3.00
0000-000-00 Stock item WASHER, JOYSTICK FIFO 25.00
0000-000-00 Stock item ADAPTER, CO2 LASER ZEISS FIFO 1.00
0000-000-00 Stock item MIRROR, CONCAVE FIFO 181.00
0000-000-00 Stock item BRIDGE, PROTECTIVE, MICROMANIP FIFO 4.00
0000-000-00 Stock item MIRROR, HOT CLEAR FIFO 365.00
0000-000-00 Stock item LABEL, LASER ADPT, LASER ENG FIFO 200.00
0000-000-00 Stock item Adapter Blnk Laser, Generic FIFO -1.00
0000-000-00 Stock item LABEL, LASER ADPT, SURGILASE FIFO 170.00
0000-000-00 Stock item LABEL, LASER ADPT, ZEISS FIFO 200.00
0000-000-00 Stock item LABEL, LASER ADPT, HERAEUS/LAS FIFO 70.00
0000-000-00 Stock item LABEL, LASER ADPT, COH FIFO 230.00
0000-000-00 Stock item LABEL, LASER ADPT, XANAR-COH FIFO 145.00
0000-000-00 Stock item LABEL, LASER ADPT, SHARPLAN FIFO 190.00
0000-000-00 Stock item SPACE, SLIDER FIFO 8.00
0000-000-00 Stock item LABEL, INDICATOR FIFO 45.00
0000-000-00 Stock item BUTTON, LAPAROSCOPE FIFO 3.00
0000-000-00 Stock item INSERT, NUT JOYSTICK (BLACK) FIFO 64.00
0000-000-00 Stock item INSERT, NUT JOYSTICK (BLUE) FIFO 1.00
0000-000-00 Stock item 90 ROD LENS W/SPER MIR (FABR) FIFO 288.00
0000-000-00 Stock item LABEL JOYSTICK ASSY FIFO 45.00
0000-000-00 Stock item NUT, JOYSTICK FIFO 6.00
0000-000-00 Stock item JOYSTICK INSERT W/TEFL BUSHIN FIFO 45.00
0000-000-00 Stock item Slider, Telescope FIFO 36.00
0000-000-00 Stock item NUT COLLIMATOR FIFO 3.00
0000-000-00 Stock item LABEL, LASER BEAM COLLIMATOR FIFO 145.00
0000-000-00 Stock item LABEL NO YAG 1064nm, 532nm FIFO 275.00
0000-000-00 Stock item CLAMP, MIRROR BOTTOM FIFO 51.00
0000-000-00 Stock item CLAMP, MIRROR TOP FIFO 55.00
0000-000-00 Stock item L/ADAPT, COPPER L/SONIC FIFO 4.00
0000-000-00 Stock item MIRROR, CONVEX FIFO 5.00
0000-000-00 Stock item HANDREST, PIN FIFO 26.00
0000-000-00 Stock item HANDREST, SECTOR FIFO 25.00
0000-000-00 Stock item MIRROR,SPHER.CONCAVE (fabrica) FIFO 113.00
0000-000-00 Stock item Nut, Handrest FIFO 25.00
0000-000-00 Stock item FRONT TIP, HANDPIECE FIFO 1.00
0000-000-00 Stock item FRONT TIP, HANDPIECE FIFO 8.00
0000-000-00 Stock item HOLDER, MIROR FIFO 5.00
0000-000-00 Stock item COLLIM LENS Nd:YAG FIFO 6.00
0000-000-00 Stock item FC THUMB SCREW FIFO 54.00
0000-000-00 Stock item LABEL, SNAP ADP RTI TO SHAR. FIFO 225.00
0000-000-00 Stock item SNAP ADAP RTI TO SHARPLAN ASSY FIFO 7.00
0000-000-00 Stock item Spacer Dove Tail For Wild 680 FIFO 5.00
0000-000-00 Stock item MIRROR R.G.C. FIFO 28.00
0000-000-00 Stock item OLYMPUS OME ADAPTER FIFO 1.00
0000-000-00 Stock item PLATE, TELESCOPE F/MICROSC FIFO 2.00
0000-000-00 Stock item FRONT TIP HOOK, HANDPIECE FIFO 8.00
0000-000-00 Stock item ADAP MOLLER XXXXX, BUTTER FIFO 4.00
42
0000-000-00 Stock item SLIDE LABEL "F-df" FIFO 225.00
0000-000-00 Stock item MIRROR SPHERIC CONVEX (fabric) FIFO 109.00
0000-000-00 Stock item LASER ADAPTER BLANK. LASREM FIFO -4.00
0000-000-00 Stock item LABEL "C E" FIFO 600.00
0000-000-00 Stock item ADAPTER ER:YAG ASCULAP MEDITEK FIFO 2.00
0000-000-00 Stock item Screw Modify for Wild adaptor FIFO 39.00
0000-000-00 Stock item LASER AD FOR SCITON ER.YAG LAS FIFO 1.00
0000-000-00 Stock item Manual, Operating UM-2000 PJS FIFO -11.00
0200-009-01C Stock item UniMax-2000 PJS, Clear Mirror FIFO 5.00
0000-000-00 Stock item Case Carrying, Assy. FIFO 92.00
0000-000-00 Stock item Universal Hand Stabiliz(Short) FIFO -10.00
0200-040-O1 Stock item RIGHT ANGLE COUPLER ASSY FIFO 6.00
0000-000-00 Stock item KIT, ADAPT MICRSCP.ZEISS (D/F) FIFO 51.00
0200-047-O1 Stock item KIT, DRAPE ADAPTER, ZEISS FIFO 1.00
0000-000-00 Stock item ASSY JST MW B-S ND:YAG1064/532 FIFO 2.00
0000-000-00 Stock item RTI TO NIIC (25OZ) ADAPTER ASS FIFO 1.00
0000-000-00 Stock item L/WILDM650/651/655/690/691 FIFO 1.00
0000-000-00 Stock item INDICATOR, BEAM ALIGNMENT FIFO 15.00
0000-000-00 Stock item Assy, Beam SPL. FIFO 6.00
0000-000-00 Stock item ADAPTER RTI-MOLLER XXXXX, ASSY FIFO 1.00
0000-000-00 Stock item KIT, HORN HANDLE FIFO 15.00
0000-000-00 Stock item KIT, PROTECTIVE DRAPE BRIGDE FIFO 3.00
0000-000-00 Stock item ASSY, BEAM SPL. W/CLEAR MIRROR FIFO 9.00
0000-000-00 Stock item ADPT, COLPOSCOPE:COBOT MED. FIFO 6.00
0000-000-00 Stock item Laser Adaptor RTI-Lasram, Assy FIFO 19.00
0000-000-00 Stock item DOVE TAIL SPACER ASSY. 3/8 IN. FIFO 1.00
0000-000-00 Stock item DOVE TAIL SPACER ASSY. 1/2 IN. FIFO 1.00
0000-000-00 Stock item ADAPTER RTI-LEISEGANG COLPOSCO FIFO 1.00
0000-000-00 Stock item ADAPTER RTI TO HI-TECH, ASSY FIFO 1.00
0000-000-00 Stock item Adapter RTI to Lasering, Assy. FIFO 2.00
0000-000-00 Stock item MOST MODELS LEICA/WILD FIFO -2.00
0000-000-00 Stock item Cap, Protective MM (Yellow) FIFO 500.00
0000-000-00 Stock item ADAPTER, COLLIMATOR (AMPHENO) FIFO 9.00
0000-000-00 Stock item STERILE DRAPE FIFO 32.00
0000-000-00 Stock item TYVEK, POUCH T-P CHEVRON 8x13 FIFO 975.00
0000-000-00 Stock item DOUBLE CONVEX LEN (MW MANIF) FIFO 6.00
0000-000-00 Stock item SCR, SKT HD KRL CAP #8-32x1 FIFO 7.00
0000-000-00 Stock item CLIP, REMOVE JOYSTICK FIFO 64.00
0000-000-00 Stock item ELBOW FITTING #10-32 FIFO 65.00
0000-000-00 Stock item O-RING i.d 1/4, o.d 3/8W 1/16 FIFO 44.00
0000-000-00 Stock item Q-Tip Cotton Swab, 6" FIFO 5,000.00
0000-000-00 Stock item Methanol/Absolute/Photrex FIFO 2.00
0000-000-00 Stock item Acetone, HPLC 99.7% FIFO 1.00
Z99-9060 Stock item Coated Substrate (Argon Laser) FIFO 5.00
Add Xxxxxxxxx Tech. - Additional 50 units 50.00
Scanners 9.00
Couplers 4.00
Misc. Items 0.00
43
EXHIBIT C
PROMISSORY NOTE
44
SECURED PROMISSORY NOTE
$105,212 May 22, 0000
Xxxxxx Xxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, SURGICAL LASER TECHNOLOGIES, INC. a Delaware Corporation
("BORROWER"), hereby unconditionally promises to pay to the order of RELIANT
TECHNOLOGIES, INC., a Delaware corporation ("Lender"), in lawful money of the
United States of America and in immediately available funds, the principal sum
of One Hundred Five Thousand Two Hundred Twelve Dollars ($105,212), subject to
adjustment as set forth in Section 1 below (the "LOAN") together with accrued
and unpaid interest thereon, each due and payable in the manner set forth below.
This Promissory Note is executed and delivered in connection with that certain
Security Agreement dated as of even date herewith and executed by Borrower in
favor of Lender (as the same may from time to time be amended, modified or
supplemented or restated, the "SECURITY AGREEMENT"). Additional rights of Lender
are set forth in the Security Agreement. All capitalized terms used herein and
not otherwise defined herein shall have the respective meanings given to them in
the Security Agreement.
1. PRINCIPAL AND INTEREST REPAYMENT. The outstanding principal amount and all
accrued interest of the Loan shall be subject to scheduled amortized repayments
on the dates and in the amounts listed below; provided, however, that the
original principal balance hereof and such repayment schedule is subject to
adjustment: (i) based upon a final count of the actual quantity of tangible
assets transferred and sold to Borrower pursuant to Section 2.3 of that certain
License and Development Agreement dated as of even date herewith between Lender
and Borrower (the "LICENSE AND DEVELOPMENT AGREEMENT), with any such adjustment
to be calculated based on the mean of the "Item Value" set forth on Exhibit B
hereto for the actual quantity so transferred and sold; or (ii) based upon
payment of proceeds from the resale of such tangible assets pursuant to Section
3.1 of the License and Development Agreement. Any such adjusted repayment
schedule shall be set forth in a writing executed by both parties and attached
hereto as Schedule 1.
REPAYMENT DATE REPAYMENT AMOUNT
---------------------------------------- ----------------------
July 1, 2002 $9,173.36
August 1, 2002 $9,173.36
September 1, 2002 $9,173.36
October 1, 2002 $9,173.36
November 1, 2002 $9,173.36
December 1, 2002 $9,173.36
January 1, 2003 $9,173.36
February 1, 2003 $9,173.36
March 1, 2003 $9,173.36
April 1, 2003 $9,173.36
May 1, 2003 $9,173.36
June 1, 2003 $9,173.36
2. INTEREST RATE. Borrower promises to pay interest on the outstanding
principal amount hereof, which interest shall be payable at the rate of ten
percent (10%) per annum or the maximum rate permissible by law (which under the
laws of the State of California shall be deemed to be the laws relating to
permissible rates of interest on commercial loans), whichever is less. Interest
shall be due and payable in accordance with the foregoing amortization schedule
and shall be calculated on the basis of a 360-day year for the actual number of
days elapsed.
Upon the occurrence and during the continuance of an Event of Default
pursuant to Section 6.4 below, all amounts owing hereunder shall bear interest
at eighteen percent (18%) and the schedule of payments shall be reamortized
accordingly.
45
3. PLACE OF PAYMENT. All amounts payable hereunder shall be payable at the
office of Lender, 0000 Xxxxx Xxxxx, Xxxxxx Xxxx, XX 00000, unless another place
of payment shall be specified in writing by Lender.
4. APPLICATION OF PAYMENTS; PREPAYMENT. Payment on this Note shall be applied
first to accrued interest and then to outstanding principal as set forth in the
payment schedule in Section 1. Borrower may prepay the principal balance of this
Note at any time without penalty or premium.
5. SECURED NOTE. The full amount of this Note is secured by the Collateral
identified and described as security therefor in the Security Agreement executed
by and delivered by Borrower to Lender.
6. DEFAULT. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
6.1 Borrower fails to pay timely any of the principal amount due under
this Note or any accrued interest or other amounts due under this Note
on the date the same becomes due and payable or within ten (10)
business days thereafter;
6.2 Borrower files any petition or action for relief under any bankruptcy,
reorganization, insolvency or moratorium law or any other law for the
relief of, or relating to, debtors, now or hereafter in effect, or
makes any assignment for the benefit of creditors or takes any
corporate action in furtherance of any of the foregoing; or
6.3 An involuntary petition is filed against Borrower (unless such
petition is dismissed or discharged within sixty (60) days) under any
bankruptcy statute now or hereafter in effect, or a custodian,
receiver, trustee, assignee for the benefit of creditors (or other
similar official) is appointed to take possession, custody or control
of any property of Borrower.
6.4 An "Event of Default" under the Security Agreement or a breach of the
License and Development Agreement.
Upon the occurrence of an Event of Default hereunder, all unpaid principal,
accrued interest and other amounts owing hereunder shall, at the option of
Lender, and, in the case of an Event of Default pursuant to (B) or (C) above,
automatically, be immediately due, payable and collectible by Lender pursuant to
applicable law.
7. WAIVER. Borrower waives presentment and demand for payment, notice of
dishonor, protest and notice of protest of this Note, and shall pay all costs of
collection when incurred, including, without limitation, reasonable attorneys'
fees, costs and other expenses.
The right to plead any and all statutes of limitations as a defense to any
demands hereunder is hereby waived to the full extent permitted by law.
8. GOVERNING LAW. This Note shall be governed by, and construed and enforced
in accordance with, the laws of the State of California, excluding conflict of
laws principles that would cause the application of laws of any other
jurisdiction.
9. SUCCESSORS AND ASSIGNS. The provisions of this Note shall inure to the
benefit of and be binding on any successor to Borrower and shall extend to any
holder hereof.
46
SURGICAL LASER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Printed Name: Xxxxxxx X. Xxxxxxx
------------------
Title: President and CEO
-----------------
47
EXHIBIT X
XXXXXXXXX PURCHASE ORDERS
[INTENTIONALLY OMITTED]
48
EXHIBIT E
[INTENTIONALLY OMITTED]
49
EXHIBIT F
STATEMENT OF WORK
[INTENTIONALLY OMITTED]
50
EXHIBIT G
PROHIBITED PARTIES
[INTENTIONALLY OMITTED]
51
SCHEDULE 3.4
PAYMENT DATE PAYMENT AMOUNT
---------------------------------------- ----------------------------
July 1, 2002 $14,890.19
August 1, 2002 $14,890.19
September 1, 2002 $14,890.19
October 1, 2002 $14,890.19
November 1, 2002 $14,890.19
December 1, 2002 $14,890.19
January 1, 2003 $14,890.19
February 1, 2003 $14,890.19
March 1, 2003 $14,890.19
April 1, 2003 $14,890.19
May 1, 2003 $14,890.19
June 1, 2003 $14,890.19
July 1, 2003 $14,890.19
August 1, 2003 $14,890.19
September 1, 2003 $14,890.19
October 1, 2003 $14,890.19
November 1, 2003 $14,890.19
December 1, 2003 $14,890.19
52
