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EXHIBIT 99.1
REDACTED
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT is made, entered into, and effective as of
the latest date of signature appearing below (the "Effective Date"), by and
between Summit Technology, Inc., a corporation organized under the laws of the
State of Massachusetts, with a place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("Summit"), and VISX, Incorporated, a corporation organized
under the laws of the State of Delaware, with a place of business at 0000
Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 ("VISX").
WHEREAS, Summit and VISX are involved in numerous disputes around the
world involving their respective patents; and
WHEREAS, Summit and VISX desire to reach a final settlement and
disposition of their patent disputes as set forth herein;
NOW THEREFORE, in consideration of the payments, releases,
contribution, licenses, covenants and undertakings hereinafter set forth, Summit
and VISX agree as follows:
1. For purposes of this Settlement Agreement, the phrase "UNITED STATES
AZEMA PATENTS" means United States Patent Nos. 4,902,122, 4,973,330 and
5,147,352, and any continuations or reissues thereof.
2. For purposes of this Settlement Agreement, the phrase "FOREIGN AZEMA
PATENTS" means the patents and applications that are the corresponding
counterparts to the United States Azema Patents issued or pending in countries
outside of the United States, together with any continuations or reissues
thereof.
3. For purposes of this Settlement Agreement, the phrase "AZEMA FAMILY
OF PATENTS" means the United States Azema Patents and the Foreign Azema Patents.
4. For purposes of this Settlement Agreement, the term "AFFILIATE"
means any corporation, entity or person that owns more than 50% of the shares
entitled to vote of a party to this Settlement Agreement, or that has the right
or power to appoint more than one-half of the board of directors of a party to
this Settlement Agreement, or that otherwise has effective control of a party to
this Settlement Agreement (hereinafter "direct or indirect parent"), and any
division, subsidiary or other corporation or entity or person in which a party
to this Settlement Agreement, or a direct or indirect parent of a party to this
Settlement Agreement, owns directly or indirectly more than 50% of the shares
entitled to vote, or for which any such party or direct or indirect parent has
the right or power to appoint more than one-half of the board of directors, or
over which such party or direct or indirect parent otherwise has effective
control.
5. For purposes of this Settlement Agreement, the phrase "SUMMIT'S
FOREIGN
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PATENTS" means all patents issued outside the United States (other than the
Foreign Azema Patents) in which Summit or a Summit Affiliate has or in the
future acquires an ownership interest or the right to license others to practice
the art embodied in the patent, and which relate to a method or apparatus for
laser ablation of corneal tissue.
6. For purposes of this Settlement Agreement, the phrase "VISX'S
FOREIGN PATENTS" means all patents issued outside the United States in which
VISX or a VISX Affiliate has or in the future acquires an ownership interest or
the right to license others to practice the art embodied in the patent, and
which relate to a method or apparatus for laser ablation of corneal tissue.
7. (a) In exchange for the release set forth in PARAGRAPH 7(b), the
contribution set forth in PARAGRAPH 7(c), and the license set forth in
PARAGRAPHS 7(d) below within five business days after the Effective Date, VISX
shall pay Summit the sum of _____________________.
(b) Effective as of the date that the payment specified in
PARAGRAPH 7(a) is made, Summit and its Affiliates do hereby fully release,
acquit, and forever discharge VISX and VISX's Affiliates and their respective
officers, directors, shareholders, agents, employees, customers, distributors,
dealers, vendees, suppliers, and users from any and all claims or liability,
known or unknown, arising out of or related in any way to the manufacture, use,
offer to sell, sale, license, lease or other disposition of products
manufactured or assembled by VISX or a VISX Affiliate occurring prior to the
Effective Date which could be considered an infringement or form the basis of an
action or claim of infringement under the Azema Family of Patents or Summit's
Foreign Patents.
(c) Within five business days after the payment specified in
PARAGRAPH 7(a) is made, Summit and its Affiliates shall contribute to Summit
Partner, Inc. and cause Summit Partner Inc. to contribute to Pillar Point
Partners the exclusive, royalty free, fully paid-up right and license under
United States Patent Nos. 5,147,352 and 4,973,330 to make, have made, use, sell,
license, lease and otherwise dispose of all License Products (as defined in the
Summit Contribution Agreement dated June 3, 1992) and other apparatus covered by
United States Patent Nos. 5,147,352 and 4,973,330, and to perform (including the
right to license others to perform) all Licensed Procedures (as defined in the
Summit Contribution Agreement dated June 3, 1992) covered by the claims of
United States Patent Nos. 5,147,352 and 4,973,330, during the term of the Summit
Contribution Agreement dated June 3, 1992, throughout the world. Such
contribution shall be effective as of the Effective Date. The contribution made
pursuant to this PARAGRAPH 7(c) shall not affect any other rights or obligations
of Summit, VISX, Summit Partner, Inc. or VISX Partner, Inc. under the Formation
Agreement or the General Partnership Agreement of Pillar Point Partners, both
dated June 3, 1992.
(d) Effective as of the date that the payment specified in
PARAGRAPH 7(a) is made, Summit and its Affiliates do hereby grant to VISX and
its Affiliates an irrevocable, non-exclusive and fully paid up license under
United States Patent No. 4,902,122 and any continuations or reissues thereof to
make, have made, use, offer to sell, sell, license, lease and
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otherwise dispose of products manufactured or assembled by VISX or a VISX
Affiliate that come within the claims of that patent, whether directly or
indirectly through distributors or other resellers, and to perform and
sublicense others to perform procedures using those products during the term
hereof throughout the world. The term of the license provided for in this
PARAGRAPH 7(d) shall, unless sooner terminated as provided for in this PARAGRAPH
7(d), end on the date on which the last to expire of the patents licensed in
this PARAGRAPH 7(d) expires. In the event that VISX or any of its Affiliates
institutes or voluntarily participates in any lawsuit or other form of legal or
administrative proceeding, anywhere in the world, to challenge or contest the
validity, patentability or priority of the patents licensed in this PARAGRAPH
7(d) during the term of the license provided for in this PARAGRAPH 7(d), Summit
shall provide written notice to VISX (i) stating that Summit believes that VISX
is in breach of its covenant recited in PARAGRAPH 12(a) and (ii) specifying the
lawsuit or proceeding which VISX (or any of its Affiliates) is challenging or
contesting the validity, patentability or priority of any of the patents
licensed in this PARAGRAPH 7(d). VISX shall have thirty days from receipt of
such notice to cure the breach specified in such notice in a manner reasonably
satisfactory to Summit. If such cure is not accomplished within said thirty
days, then Summit shall have the right to terminate the license provided for in
this PARAGRAPH 7(d) by notifying VISX in writing that the license is being
canceled, and the cancellation shall be effective as of the date of the notice.
The phrase "voluntarily participates" means any type of participation that is
not required by a court order or ruling or an administrative order or ruling.
8. (a) In exchange for the release set forth below in
PARAGRAPH 8(b), within five business days after the Effective Date, Summit shall
pay VISX the sum of _____________.
(b) Effective as of the date that the payment specified in
PARAGRAPH 8(a) is made, VISX and its Affiliates do hereby fully release, acquit,
and forever discharge Summit and Summit's Affiliates and their respective
officers, directors, shareholders, agents, employees, customers, distributors,
dealers, vendees, suppliers, and users from any and all claims or liability,
known or unknown, arising out of or related in any way to the manufacture, use,
offer to sell, sale, license, lease or other disposition of products
manufactured or assembled by Summit or a Summit Affiliate occurring prior to the
Effective Date which could be considered an infringement or form the basis of an
action or claim of infringement under VISX's Foreign Patents.
9. (a) Within five business days after the Effective Date, VISX
shall pay Summit the sum of ____________________. This sum constitutes full and
complete payment to Summit for the license granted VISX pursuant to PARAGRAPH
9(b).
(b) Effective as of the date that the payment specified in
PARAGRAPH 9(a) is made, Summit and its Affiliates hereby grant to VISX and its
Affiliates a non-exclusive and fully paid up license under the Foreign Azema
Patents and Summit's Foreign Patents to make, have made, use, offer to sell,
sell, license, lease and otherwise dispose of products manufactured or assembled
by VISX or VISX's Affiliates, whether directly or indirectly through
distributors or other resellers, and to perform and sublicense others to perform
procedures using those products,
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during the term hereof in all countries of the world except the United States.
(c) VISX and its Affiliates shall affix to each product
manufactured or assembled by VISX or its Affiliates that is sold, leased,
licensed or otherwise disposed of outside of the United States after the
Effective Date a label reasonably requested by Summit indicating that the
product is licensed under the Foreign Azema Patents and Summit's Foreign
Patents.
(d) The term of the licenses provided for in PARAGRAPH 9(b)
shall, unless sooner terminated as provided for in this PARAGRAPH 9(d), end on
the date on which the last to expire of the Foreign Azema Patents and Summit's
Foreign Patents has expired. In the event that VISX or any of its Affiliates
institutes or voluntarily participates in any lawsuit or other form of legal or
administrative proceeding, anywhere in the world, to challenge or contest the
validity, patentability or priority of any of the Foreign Azema Patents of
Summit's Foreign Patents during the term of the license provided for in
PARAGRAPH 9(b), Summit shall provide written notice to VISX (i) stating that
Summit believes that VISX is in breach of its covenant recited in PARAGRAPH
12(a) and (ii) specifying the lawsuit or proceeding which VISX (or any of its
Affiliates) is challenging or contesting the validity, patentability or priority
of any of the patents licensed in PARAGRAPH 9(b). VISX shall have thirty days
from receipt of such notice to cure the breach specified in such notice in a
manner reasonably satisfactory to Summit. If such cure is not accomplished
within said thirty days, then Summit shall have the right to terminate the
license provided for in PARAGRAPH 9(b) by notifying VISX in writing that the
license is being canceled, and the cancellation shall be effective as of the
date of the notice. The phrase "voluntarily participates" means any type of
participation that is not required by a court order or ruling or an
administrative order or ruling.
10. (a) Within five business days after the Effective Date, Summit
shall pay VISX the sum of _____________________. This sum constitutes full and
complete payment to VISX for the license granted Summit pursuant to PARAGRAPH
10(b).
(b) Effective as of the date that the payment specified in
PARAGRAPH 10(a) is made, VISX and its Affiliates hereby grant to Summit and its
Affiliates a non-exclusive and fully paid up license under VISX's Foreign
Patents to make, have made, use, offer to sell, sell, license, lease and
otherwise dispose of products manufactured or assembled by Summit or Summit's
Affiliates, whether directly or indirectly through distributors or other
resellers, and to perform and sublicense others to perform procedures using
those products, during the term hereof in all countries of the world except the
United States.
(c) Summit and its Affiliates shall affix to each product
manufactured or assembled by Summit or its Affiliates that is sold, leased,
licensed or otherwise disposed of outside of the United States after the
Effective Date a label reasonably requested by VISX indicating that the product
is licensed under VISX's Foreign Patents.
(d) The term of the license provided for in PARAGRAPH 10(b)
shall, unless sooner terminated as provided for in this PARAGRAPH 10(d), end on
the date on which the last to
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expire of VISX's Foreign Patents has expired. In the event that Summit or a
Summit Affiliate institutes or voluntarily participates in any lawsuit or other
form of legal or administrative proceeding, anywhere in the world, to challenge
or contest the validity, patentability or priority of any of VISX's Foreign
Patents during the term of the license provided for in PARAGRAPH 10(b), VISX
shall provide written notice to Summit (i) stating that VISX believes that
Summit is in breach of its covenant recited in PARAGRAPH 11(a) and (ii)
specifying the lawsuit or proceeding which Summit (or any of its Affiliates) is
challenging or contesting the validity, patentability or priority of any of the
patents licensed in PARAGRAPH 10(b). Summit shall have thirty days from receipt
of such notice to cure the breach specified in such notice in a manner
reasonably satisfactory to VISX. If such cure is not accomplished within said
thirty days, then VISX shall have the right to terminate the license provided
for in PARAGRAPH 10(b) by notifying Summit in writing that the license is being
canceled, and the cancellation shall be effective as of the date of the notice.
The phrase "voluntarily participates" means any type of participation that is
not required by a court order or ruling or an administrative order or ruling.
11. (a) Effective as of the date that the payments specified
in PARAGRAPHS 7(a) and 9(a) are made and continuing thereafter, Summit and its
Affiliates hereby covenant (i) never to xxx or threaten to xxx VISX or its
Affiliates or VISX's or its Affiliates' distributors or customers, and never to
make any claim whatsoever against VISX or its Affiliates or VISX's or its
Affiliates' distributors or customers, anywhere in the world, for any alleged
infringement of any patent (whenever issued) which relates to a method or
apparatus for laser ablation of corneal tissue on the basis of the manufacture,
use, offer to sell, sale, license, lease or other disposition of products
manufactured or assembled by VISX or a VISX Affiliate, and (ii) never to
institute or voluntarily participate in any lawsuit or other form of legal or
administrative proceeding (including, without limitation, opposition proceedings
in the European Patent Office), anywhere in the world, to challenge or contest
the validity, patentability or priority of any patent or patent application in
which VISX or a VISX Affiliate has or acquires an ownership interest, and which
patent or patent application relates to a method or apparatus for laser ablation
of corneal tissue. The phrase "voluntarily participate" means any type of
participation that is not required by a court order or ruling or an
administrative order or ruling. Provided, however, in the event that a conflict
arises between patent rights owned by Summit or a Summit Affiliate and patent
rights owned by VISX or a VISX Affiliate that necessitates an interference
proceeding before the United States PTO, Summit and VISX agree to work with each
other to resolve the issues by good faith negotiation and, if a resolution can
not be achieved within thirty days after negotiations begin, Summit and VISX
shall jointly petition the PTO for the matter to be decided by binding
arbitration pursuant to 37 CFR 1.690.
(b) Within thirty calendar days after the payments specified
in PARAGRAPHS 7(a) and 9(a) are made, Summit and its Affiliates and agents shall
take all steps necessary to withdraw from, and Summit shall warrant to VISX that
it and its Affiliates and agents have withdrawn from, all forms of legal or
administrative proceedings, anywhere in the world, in which Summit or a Summit
Affiliate has challenged or contested the validity, patentability or priority of
any patent or patent application in which VISX or a VISX Affiliate has an
ownership
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interest, and which patent or patent application relates to a method or
apparatus for laser ablation of corneal tissue.
12. (a) Effective as of the date that the payments specified
in PARAGRAPHS 8(a) and 10(a) are made and continuing thereafter, VISX and its
Affiliates hereby covenant (i) never to xxx or threaten to xxx Summit or its
Affiliates or Summit's or its Affiliates' distributors or customers, and never
to make any claim whatsoever against Summit or its Affiliates or Summit's or its
Affiliates' distributors or customers, anywhere in the world, for any alleged
infringement of any patent (whenever issued) which relates to a method or
apparatus for laser ablation of corneal tissue on the basis of the manufacture,
use, offer to sell, sale, license, lease or other disposition of products
manufactured or assembled by Summit or a Summit Affiliate, and (ii) never to
institute or voluntarily participate in any lawsuit or other form of legal or
administrative proceeding (including, without limitation, opposition proceedings
in the European Patent Office), anywhere in the world, to challenge or contest
the validity, patentability or priority of any patent or patent application in
which Summit or a Summit Affiliate has or acquires an ownership interest, and
which patent or patent application relates to a method or apparatus for laser
ablation of corneal tissue. The phrase "voluntarily participate" means any type
of participation that is not required by a court order or ruling or an
administrative order or ruling. Provided, however, in the event that a conflict
arises between patent rights owned by Summit or a Summit Affiliate and patent
rights owned by VISX or a VISX Affiliate that necessitates an interference
proceeding before the United States PTO, Summit and VISX agree to work with each
other to resolve the issues by good faith negotiation and, if a resolution can
not be achieved within thirty days after negotiations begin, Summit and VISX
shall jointly petition the PTO for the matter to be decided by binding
arbitration pursuant to 37 CFR 1.690.
(b) Within thirty calendar days after the payments specified
in PARAGRAPHS 8(a) and 10(a) are made, VISX and its Affiliates and agents shall
take all steps necessary to withdraw from, and VISX shall warrant to Summit that
it and its Affiliates and agents have withdrawn from, all forms of legal or
administrative proceedings, anywhere in the world, in which VISX or a VISX
Affiliate has challenged or contested the validity, patentability or priority of
any patent or patent application in which Summit or a Summit Affiliate has an
ownership interest, and which patent or patent application relates to a method
or apparatus for laser ablation of corneal tissue.
13. To implement this settlement, within one day after the payments
specified in PARAGRAPHS 7(a), 8(a), 9(a), and 10(a) are made, Summit and VISX
shall file with the United States District Court for the District of Delaware a
Stipulation of Dismissal in the form attached hereto as Exhibit A.
14. Within five days after the payments specified in PARAGRAPHS 7(a),
8(a), 9(a), and 10(a) are made, the parties shall file with the Trial Division
of the Federal Court of Canada a Discontinuance of Federal Court Action File No.
T-1875-95 stating that each party shall bear its own costs and attorneys fees
and that such discontinuance shall be with prejudice to the rights of either
party to bring a claim, or counterclaim, of substantially similar scope to any
claim or
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counterclaim which was asserted, or which attempts were made to assert, within
the Canadian action.
15. All payments to be made pursuant to this Settlement Agreement shall
be made by wire transfer of funds pursuant to the instruction to be provided by
each party to the other in writing on or before the Effective Date.
16. This Settlement Agreement effects a settlement of claims that are
contested and denied. Nothing in this Settlement Agreement shall be construed as
an admission by any party of any liability of any kind to the other party. This
Settlement Agreement shall not be admissible as evidence against any party
hereto or its Affiliates in any proceeding other than in a proceeding to enforce
an obligation of a party hereunder.
17. Any notice given pursuant to this Settlement Agreement shall be in
writing and, except as otherwise expressly provided herein, shall be deemed to
have been duly delivered if delivered in person or by certified or registered or
overnight express mail, postage and mailing expense prepaid, or by facsimile
transmission with hard copy to follow by regular mail, and, if given or rendered
to Summit or its Affiliates addressed to:
Summit Technology, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
or if given or rendered to VISX or its Affiliates addressed to:
VISX, Incorporated
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Either party may specify a different address by notifying the other in writing
of such different address.
18. Each of Summit and VISX (for purposes of this PARAGRAPH 18, each a
"Licensee") shall indemnify, defend and hold harmless the other party and its
successors and assigns (for purposes of this PARAGRAPH 18, each a "Licensor")
from and against any loss, damage, cost or expense of whatsoever kind or nature
(including reasonable attorneys' fees and professional expenses) incurred by the
Licensor by reason of any product liability claim arising out of the
manufacture, use, sale, lease, license or other disposition of products
manufactured or marketed by Licensee or any Licensee Affiliate or any
distributor of Licensee or any Licensee Affiliate and licensed hereunder. The
foregoing indemnification and agreement to defend and hold harmless shall
include, without limitation, any cost or expense incurred or to be incurred by
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the Licensor or any Licensor Affiliate by reason of its having been or being
made a party or being threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative in connection with any actual or alleged act or omission in
connection with any such manufacture, use, sale, lease or other disposition of
products manufactured or assembled by Licensee or any Licensee Affiliate or
performance of any procedures using those products. The foregoing
indemnification and agreement to defend and hold harmless shall not extend to
any acts or omissions by or on behalf of the Licensor or its Affiliates in bad
faith or as a result of negligence. A party claiming indemnification shall not
be entitled to indemnification with respect to any action to which it consented
in writing or any claim as to which it did not give written notice to the party
from which indemnification is sought within ninety (90) days after having
received notice of such claim. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. In the
event any claim for indemnification arises from a claim of a third party, the
party from whom indemnification is sought shall have the right to defend against
such third party claim and, in such event, the party seeking indemnification
shall cooperate with all reasonable requests in the defense thereof at the
expense of the party from whom indemnification is sought.
19. Nothing in this Settlement Agreement, including without limitation,
the provisions set forth in Paragraphs 7(d), 9(d), 10(d), 11(a) and 12(a), shall
be construed as preventing or limiting a party's ability (i) to defend its
patents against a charge that they are invalid or unenforceable, and (ii) to
assert that its patent applications possess novelty, unobviousness, utility,
industrial applicability and an enabling disclosure, and are entitled to their
priority claims, and otherwise claim patentable subject matter.
20. If any provision of this Settlement Agreement, or the application
of such provision to any person or circumstance, shall be held to be invalid or
unenforceable, the remainder of this Settlement Agreement, or the application of
such provision to such persons or circumstances other than those to which it is
held invalid or unenforceable, shall not be affected thereby, provided that such
invalid or unenforceable provisions shall be replaced by valid and enforceable
provisions which will achieve as far as possible the economic and business
intentions of the parties to this Settlement Agreement.
21. Nothing in this Settlement Agreement shall be deemed to appoint or
authorize any party to act as an agent of the other party or to assume or incur
any liability or obligation in the name or on behalf of the other party.
22. Summit hereby warrants and represents that (a) it has read and
understood the terms of this Settlement Agreement; (b) it has the full right and
authority (i) to enter into this Settlement Agreement, (ii) to grant the
licenses, releases and covenants recited herein on its own behalf and on behalf
of each Summit Affiliate, and (iii) to enter into the agreements recited herein
on its own behalf and on behalf of each Summit Affiliate; and (c) there are no
outstanding agreements, assignments, or encumbrances inconsistent with the
provisions set forth in this Settlement Agreement.
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23. VISX hereby warrants and represents that (a) it has read and
understood the terms of this Settlement Agreement; (b) it has the full right and
authority (i) to enter into this Settlement Agreement, (ii) to grant the
licenses, releases and covenants recited herein on its own behalf and on behalf
of each VISX Affiliate, and (iii) to enter into the agreements recited herein on
its own behalf and on behalf of each VISX Affiliate; and (c) there are no
outstanding agreements, assignments, or encumbrances inconsistent with the
provisions set forth in this Settlement Agreement.
24. This Settlement Agreement together with its exhibits represents the
entire agreement and understanding between and among the parties hereto with
respect to the subject matter hereof and it supersedes any and all prior or
contemporaneous discussions, agreements and understandings relating thereto.
This Settlement Agreement may not be varied or modified other than by a writing
executed on behalf of each of the parties hereto. A party's rights, duties and
obligations under this Settlement Agreement shall not be assigned, transferred
or delegated by either party hereto without the express written consent of the
other party, which consent shall not be unreasonably withheld, provided,
however, that either party may assign all, but not less than all, of its rights
and obligations under this Settlement Agreement to any successor by way of
merger, consolidation or acquisition of substantially all of the party's assets
associated with its business concerning laser ablation of corneal tissue, if
such successor executes an instrument by which it agrees to be bound by the
provisions of this Settlement Agreement, and if such successor provides a copy
of said instrument to the other party pursuant to the provisions of Paragraph
17.
25. The failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Settlement Agreement or to
exercise any right or remedy consequent upon a breach thereof shall not
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
26. This Settlement Agreement shall be governed by the laws of the
State of Delaware. The terms of this Settlement Agreement may be enforced in any
court of competent jurisdiction. Both parties hereby acknowledge and submit to
the jurisdiction of the Federal District Court for the District of Delaware to
hear and resolve any dispute over terms of the Settlement Agreement, to protect
and enforce the parties' rights hereunder, to rectify the contract if necessary,
and to order specific performance, injunction or similar equitable relief. The
parties further specifically acknowledge and agree that in the event of a breach
of the covenants recited in Paragraphs 11(a) and 12(a), the non-breaching party
(i) will be irreparably harmed, (ii) will be entitled to preliminary and
permanent injunctive relief, and (iii) when injunctive relief is granted, will
be entitiled to recover its costs and reasonable attorney's fees incurred in
seeking relief from the Court. The parties further specifically acknowledge and
agree that the provisions of the preceding sentence are applicable even if the
breached covenants are void or unenforceable in the country where the breach
occurs.
27. (a) Summit and VISX hereby agree to maintain in confidence the
terms of this
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Settlement Agreement and to refrain from disclosing any of the terms of this
Settlement Agreement to any person or entity other than officers and directors
of, and attorneys for, a party to this Settlement Agreement, and those employees
of a party with a need to know. Summit and VISX further agree that neither of
them shall make any public statements about this Settlement Agreement or its
terms, except as may be set forth in the joint press release referred to below
or as required by applicable securities laws. VISX and Summit shall be permitted
to disclose the terms of this Settlement Agreement to any person or entity if
ordered to do so by a court of competent jurisdiction, and VISX and Summit shall
be permitted to issue a joint press release, after the Effective Date,
announcing the fact that they have settled outstanding patent disputes.
(b) If a party determines that it must file a copy of this
Settlement Agreement with the Securities and Exchange Commission ("SEC"), the
party shall file a redacted version (omitting all references to the amounts of
monetary payments) and shall simultaneously request confidential treatment from
the SEC of the redacted terms. Neither party shall file an unredacted version
with the SEC unless and until the request for confidential treatment has been
denied by the SEC in writing. With respect to any government agency other than
the SEC, neither party shall provide an unredacted version (i.e., one which does
not omit all references to the amounts of monetary payments) of this Settlement
Agreement to such government agency unless required to do so by a court order or
ruling, or an administrative order or ruling, and if such unredacted version is
provided, the providing party shall clearly xxxx the Settlement Agreement as
"Confidential" and shall request the government agency to which such unredacted
version is provided to maintain the Settlement Agreement in confidence. In
response to discovery requests propounded in litigation, neither party shall
produce an unredacted version (i.e., one which does not omit all references to
the amounts of monetary payments) of this Settlement Agreement unless required
to do so by a court order or ruling, and if so required, the producing party
shall take all steps reasonably necessary to produce the Settlement Agreement on
terms and conditions that will maintain the highest level of confidentiality for
the Settlement Agreement.
28. This Settlement Agreement may be executed in separate counterparts,
each of which shall be considered an original but all of which shall constitute
one agreement.
WHEREFORE, the parties hereto have caused this Settlement Agreement to
be executed as of the latest date of signature appearing below.
SUMMIT TECHNOLOGY, INC. VISX, INCORPORATED
By /s/Xxxxxx X. Xxxxxxxxx By /s/Xxxxxxxxx X. Xxxxxx
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Executive Officer Title: Executive VP, COO
Date: 6/17/97 Date: 6/17/97
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EXHIBIT A
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
- - - - - - - - - - - - - - -x
SUMMIT TECHNOLOGY, INC., :
a corporation,
:
Plaintiff,
:
v. Civil Action
: No. 95-524
VISX, INCORPORATED,
a corporation, :
Defendant. :
- - - - - - - - - - - - - - -x
STIPULATION OF DISMISSAL
Plaintiff Summit Technology, Inc. and defendant VISX, Incorporated, by
and through their respective counsel, hereby stipulate to the dismissal, with
prejudice, of all claims and causes of action brought in this action by Summit
Technology, Inc. against VISX, Incorporated. Each party shall bear its own costs
and attorneys' fees.
Dated:
By_______________________________ By_______________________________
Connolly, Bove, Lodge & Hutz Young, Xxxxxxx Stargatt & Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx 00000 11th Floor
Tel.: (000) 000-0000 Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facs.: (000) 000-0000 Tel.: (000) 000-0000
Facs.: (000) 000-0000
Attorneys for Plaintiff Attorneys for Defendant
Summit Technology, Inc. VISX, Incorporated
