EXHIBIT 10.3
LICENSE AGREEMENT
(AXENOHL)
THIS LICENSE AGREEMENT ("Agreement") is made this 24th day of November,
1999, by and between NVID International, Inc., a corporation ("Licensor") and
Innovative Medical Services, a California corporation ("Licensee").
WHEREAS, Licensor holds all rights to the product known AXENOHL or (the
"Licensed Product"), being patented pending products for the killing of
bacterial and other biological contaminants from a water system as more
particularly described in the attached Exhibit A: PATENT PENDING; and
WHEREAS, Licensor desires to license certain marketing and distribution rights
to the Licensed Products to the Licensee on the terms and conditions set forth
herein.
THEREFORE, Licensor and Licensee agree as follows:
1. Representations And Warranties Of Licensee
As an inducement to, and to obtain the reliance of Licensor, Licensee
represents and warrants as follows:
1.1. Organization, Good Standing, Power, Etc.
-----------------------------------------
Licensee (i) is a corporation duly organized, validly existing and in
good standing under the law of the State of California; (ii) is
qualified or authorized to do business as a foreign corporation and is
in good standing in all jurisdictions in which qualification or
authorization may be required; and (iii) has all requisite corporate
power and authority, licenses and permits to own or lease and operate
its properties and carry on its business as presently being conducted
and to execute, deliver and perform this Agreement and consummate the
transactions contemplated hereby.
1.2. Capitalization.
---------------
The authorized capital stock of Licensee consists solely of 20,000,000
shares of Common Stock, no par value, (the "Licensee Common Stock"),
of which, on the date hereof 4,562,242 shares are issued and
outstanding and no shares are held in the treasury of Licensee. In
addition the Company has 5,000,000 shares of Preferred Stock
authorized, none of which are presently outstanding. All of such
issued and outstanding shares of the Licensee Common Stock have been
duly authorized and validly issued and are fully paid and
non-assessable with no personal liability attaching to the ownership
thereof and were not issued in violation of the preemptive or other
rights of any person.
1.3. Authorization of Agreement.
---------------------------
This Agreement has been or will be at Closing duly and validly
authorized, executed and delivered by Licensee.
1.4. Compliance with Applicable Laws.
--------------------------------
The conduct by Licensee of their business does not violate or infringe
on any domestic (federal, state or local) or foreign law, statute,
ordinance or regulation now in effect, or, to the knowledge of
Licensee proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its
properties or assets.
1.5. Exchange Act Filings and Financial Statements.
----------------------------------------------
Licensee has filed all reports required of it with the United States
Securities and Exchange Commission (the SEC) pursuant to Section 12(g)
of the Securities Exchange Act of ▇▇▇▇ (▇▇▇ ▇▇▇▇ ▇▇▇) including
without limitation, registration statements, 10-KSB's, 10-QSB's, Form
8's, etc. for each of the annual, quarterly or other fiscal periods
from the first to latest such filings since Licensee first so
registered as a public company.
1.6 Recognition of Licensor Trade Secrets.
1.6.1 Licensee agrees that during the term of this Agreement, or
following its termination and for all times thereafter, it will
keep secret and confidential all Licensor Trade Secrets which it
NVID /s/ DJL IMS:
/s/ MJR
knows or may hereafter come to know as a result of the
relationship established by this Agreement. The Licensor Trade
Secrets shall not be disclosed by Licensee to third parties and
shall be kept secret and confidential except (i) to the extent
that the same have entered into the public domain by means other
than improper actions by Licensee or (ii) to the extent that the
disclosure thereof may be required pursuant to the order of any
court or other governmental body.
1.6.2 It is understood and recognized by Licensee that in the event of
any violation by Licensee of the provisions of subparagraph 1.6.2
above, Licensor's remody at law will be inadequate and Licensor
will suffer irreparable injury. Accordingly, Licensee's consents
to injunctive and other appropriate equitable relief upon the
institution of legal proceedings therefor by Licensor in order to
protect the Licensor Trade Secrets. Such relief shall be in
addition to any other relief to which Licensor may be entitled at
law or in equity.
1.6.3 Licensee shall cause their employees who shall have access to
Licensor Trade Secrets hereof, to sign appropriate Trade Secrecy
Agreements in the form of Exhibit B annexed hereto and made a
part hereof.
2. Representations And Warranties Of Licensor
As an inducement to, and to obtain the reliance of LICENSEE, LICENSOR
represents and warrants as follows:
2.1. Organization, Good Standing, Power, Etc.
----------------------------------------
Licensor (i) is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and (ii) has all requisite
corporate power and authority, licenses, permits and franchises to own
or lease and operate its properties and carry on its business as
presently being conducted and to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby.
2.2. Authorization of Agreement.
---------------------------
This Agreement has been or will be at Closing duly and validly
authorized, executed and delivered by Licensor.
2.3. Material Contracts
------------------
There has not occurred any default by Licensor or any event which with
the lapse of time or the election of any person other than Licensor
will become a default, except defaults, if any, which will not result
in any material loss to or liability of Licensor.
2.4. Permits, Licenses, Etc.
-----------------------
Licensor has all permits, licenses, orders and approvals of federal,
state, local or foreign governmental or regulatory bodies that are
required in order to permit it to carry on their business as presently
conducted.
2.5. Compliance with Applicable Laws.
--------------------------------
The conduct by Licensor of its business does not violate or infringe
upon any domestic (federal, state or local) or foreign law, statute,
ordinance or regulation now in effect, or, to the knowledge of
Licensor proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its
properties or assets.
2.6. Litigation.
-----------
There is no material claim, action, suit, proceeding, arbitration,
investigation or inquiry pending before any federal, state, municipal,
foreign or other court or governmental or administrative body or
agency, or any private arbitration tribunal, or to the knowledge of
Licensor threatened, against, relating to or affecting Licensor or any
of its properties or business, or the transactions contemplated by
this Agreement; nor to the knowledge of Licensor is there any basis
for any such material claim, action, suit, proceeding, arbitration,
investigation or inquiry which may have any adverse effect upon the
assets, properties or business of Licensor, or the transactions
contemplated by this Agreement. Neither Licensor nor any officer,
director, partner or employee of Licensor, has been permanently or
temporarily enjoined by order, judgment or decree of any court or
other tribunal or any agency from engaging in or continuing any
conduct or practice in connection with the business engaged in by
Licensor. There is not in existence at present any order, judgment or
NVID /s/ DJL IMS:
/s/ MJR
decree of any court or other tribunal or any agency enjoining or
requiring Licensor to take any material action of any kind or to
Licensor and its business, properties or assets are subject or bound.
Licensor is not in default under any order, license, regulation or
demand of any federal, state or municipal or other governmental agency
or with respect to any order, writ, injunction or decree of any court
which would have a materially adverse impact upon Licensor's
operations or affairs.
2.7. Other Information.
------------------
None of the information and documents which have been furnished or
made available by LICENSOR, or any of its representatives to LICENSEE
or any of their representatives in connection with the transactions
contemplated by this Agreement is materially false or misleading or
contains any material misstatements of fact or omits any material fact
necessary to be stated in order to make the statements therein not
misleading.
2.8. Covenant to Refrain from Trading in Licensee Securities.
--------------------------------------------------------
The Licensor, its executive officers and directors represent and
warrant that since August 1, 1999 they have not engaged in trading of
Licensee securities and until such time that Licensee has announced
the Closing of this Agreement, the Licensor, its executive officers
and directors will not engage in trading of Licensee securities.
2.9. Authority to Grant a License.
-----------------------------
Pursuant to the Licensor as the holder of the patents for the Licensed
Products and the knowledge and consent thereof, the Licensor has the
right and authority to grant the license set forth in this Agreement
to the Licensor.
2.10. Compliance with Environmental Laws.
-----------------------------------
Licensor has not caused or permitted its business, properties, or
assets to be used to generate, manufacture, refine, transport, treat,
store, handle, dispose of, transfer, produce, or process any Hazardous
Substance (as such term is defined herein) except in compliance with
all applicable laws, rules, regulations, orders, judgments, and
decrees, and has not caused or permitted the Release of any Hazardous
Substance on or off the site of any property of Licensor. The term
`Hazardous Substance' shall mean any hazardous waste, as defined by 42
U.S.C. ' 6903(5), any hazardous substance, as defined by 42 U.S.C. '
601(14), any pollutant or contaminant, as defined by 42 U.S.C. '
9601(33), and all toxic substances, hazardous materials, or other
chemical substances regulated by any other law, rule, or regulation.
The term `Release' shall have the meaning set forth in 42 U.S.C. '
9601(22).
3. Marketing And Distribution Licenses
3.1. Grant of License for AXENOHL.
-----------------------------
Subject to Closing of this Agreement as set forth below, Licensor
grants to the Licensee a three year, license to market and distribute
AXENOHL for the below described markets where geographic exclusivity
is detailed. (EXCLUSIVITY IS MARKET SPECIFIC...See markets below for
exclusivity) Provided there has been no breach of this Agreement by
the Licensee which has not been cured within thirty days of written
notice of such breach, this geographic license shall automatically
renew on terms herein for and additional three year terms. This
license does not grant the specific right to manufacture AXENOHL for
the first six months from the date of closing. However, if after 6
(six) months alternative means of manufacturing becomes desirable or
necessary based on market conditions, IMS will have the right or
option to manufacture the AXENOHL formulations adhering strictly to
NVID specifications. If NVID cannot supply AXENOHL for any reason
within the first six months from the closing date, IMS will have the
right to manufacture AXENOHL prior to the end of the six-month period.
IMS will bear the complete cost associated with manufacturing set-up
and will offer to provide NVID the AXENOHL product at manufacturer
cost. In such instance, NVID will provide the manufacturing know-how
to assist IMS in setting up a manufacturing operation for the AXENOHL
product for their respective markets. (This does not include the price
of the manufacturing equipment or the price of ETI H20 to set-up the
operation.)
NVID /s/ DJL IMS:
/s/ MJR
3.1.1 Manufactured Price
3.1.1.1 The term "Manufactured Price" as used in this agreement
shall mean the actual cost to NVID to produce AXENOHL per
gallon as of the fate supplied to it by NVID's supplier
thereof.
3.1.2 Point of Use System Market.
---------------------------
The Point-of-Use or Point-of System Market shall be water
purification and disinfectant systems for consumer and commercial
use. The point-of-use market for water purification shall consist
of faucet-mount, counter-top and under-the-counter models
designed by or marketed by IMS for residential or commercial
water disinfection usage. (Exclusive geographical area:
Worldwide)
3.1.3 Healthcare Market
-----------------
The Healthcare Market shall be all water purification and
disinfection systems for hospitals, clinics, surgical centers,
doctors' offices or other similar medical or health related
facilities, including military medical and health facilities.
Exclusive, license for ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ and a non-execlusive license for Costa Rica and other
World Markets.
3.1.3.1 IMS will grant back to NVID a non-execlusive right to
distribute for this market in Mexico.
3.1.4 AXENOHL Licensing Fee
---------------------
Commencing one month after Licensee sells ANEXOHL in the Point of
Use System Market or Healthcare market, Licensee shall pay a
Licensing Fee of $70,000 payable at the rate of $10,000 per month
for (7) seven consecutive months.
3.1.5 AXENOHL EPA Testing Payments
----------------------------
Licensee shall be responsible for the fees associated with EPA
certificate as provided by EPL-Bio-Analytical. Said fees for EPA
Certificate not to exceed $70,000.
3.1.5.1 Fees Disbursement
3.1.5.1.1 $20,000 will be paid to NVID International, Inc. upon
closing of this Agreement as partial repayment of invoices
already paid to EPL-Bio-Analytical
3.1.5.1.2 The remaining balance of up to $50,000 shall be paid to
EPL-Bio-Analytical at the rate of work actually performed
monthly commencing ten (10) days following the closing and
shall not exceed the actual invoice cost of
EPL-Bio-Analytical.
3.1.5.1.3 Royalty.
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Subject to Closing of this Agreement as set forth below, the
Licensee shall pay to Licensor, a royalty in the amount of
fifteen percent (15%) of the actual manufactured price of
AXENOHL sold by or through the Licensee during a calendar
quarter in the Point-of-Use Market. The Royalty shall be
paid on or before the thirtieth (30) day after the close of
each calendar quarter for all AXENOHL for which the Licensee
has been paid during each calendar quarter adjusted solely
for returned or credited product.
3.1.5.1.3.1 Buyer agrees to furnish Seller with an annual
accounting setting forth the number of units sold in the
prior year concurrently with the filing of it's form 10-SBK.
3.1.6 Food Processing Market.
-----------------------
The Food Processing Market shall be water purification and
disinfectant systems for commercial human or animal food
preparation or processing operations. Exclusive license for
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and a non-exclusive
license for Costa Rica and other World markets
3.1.6.1. AXENOHL USDA Research Agreement Payment.
----------------------------------------
Within ten (10) days following the Closing of this
Agreement, Licensee shall pay the U.S. Department of
Agriculture, $29,500 for a one year research and testing
agreement to determine if AXENOHL may be approved for use in
preparation and processing of food for human or animal
consumption.
3.1.6.2. Exclusive Licensing Fees.
-------------------------
IMS will pay to NVID any up-front licensing fees generated
by any third parties for rights to ANEXOHL that IMS may
grant in the Food Processing Market in the
NVID /s/ DJL IMS:
/s/ MJR
following manner: Year One 15% of fee; year Two 18.5% of
fee, Year Three 20% of fee, Year Four and thereafter 20%.
3.1.6.3 Royalty.
--------
Subject to Closing of this Agreement as set forth below, the
Licensee shall pay to Licensor, a royalty in the amount of
fifteen percent (15%) of the manufactured price of AXENOHL
sold by or through the Licensee during a calendar quarter in
the Food Processing Market. The Royalty shall be paid on or
before the thirtieth (30) day after the close of each
calendar quarter for all AXENOHL for which the Licensee has
been paid during each calendar quarter adjusted solely for
returned product or credited product.
3.1.7 Dental Market.
--------------
The Dental Market shall be water purification and
disinfectant systems for use by Dentists and Oral Surgeons.
(Exclusive geographical are: Worldwide)
3.1.7.1. AXENOHL, IDS and RMS Dental Research Agreement Payment.
-------------------------------------------------------
Upon Closing of this Agreement, Licensee shall pay the
actual cost, not to exceed $17,000 to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ for
beginning the research and testing agreement to determine
the efficacy of AXENOHL, IDS and RMS for dental disinfection
and bio-film removal and an additional payment not to exceed
$17,000 upon completion of ▇▇. ▇▇▇▇▇▇'▇ research.
3.1.7.2. Royalty.
--------
Subject to Closing of this Agreement as set forth below, the
Licensee shall pay to Licensor, a royalty in the amount of
fifteen percent (15%) of the manufactured price of AXENOHL
sold by or through the Licensee during a calendar quarter in
the Dental Market. The Royalty shall be paid on or before
the thirtieth (30) day after the close of each calendar
quarter for all AXENOHL for which the Licensee has been paid
during each calendar quarter adjusted solely for returned
product.
4. Closing.
-------
4.1 The Closing of this Agreement shall take place on or before the thirtieth
calendar date following execution of this Agreement or such date as may be
agreed upon by the parties, (herein called the "Closing Date"), at the
offices of the Licensee. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to be
executed, acknowledged, and delivered) any agreements, resolutions, or
other instruments required by this Agreement to be so delivered at or prior
to the Closing, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order
to effectuate or evidence the transactions contemplated hereby.
5. Special Covenants
5.1. Due Diligence.
-------------
The parties hereto shall have up to and including the date prior to
Closing within which to complete their due diligence investigations on
the other party and the transaction contemplated hereunder. In the
event either party hereto decides, in its sole discretion, not to
proceed with the Closing based on its due diligence investigation, it
shall notify the other in writing of such decision and this Agreement
shall terminate without obligation to the other party except as to the
confidentiality provisions.
5.2. Exchange of Information.
-----------------------
Each party shall cooperate fully by exchanging information requested
by the other party in a timely manner. Without in any manner reducing
or otherwise mitigating the representations contained herein, each
party and/or its attorneys shall have the opportunity to meet with the
accountants and attorneys of the other party to discuss its respective
legal and financial condition and this transaction. If this
transaction is not completed, all documents received by each party
and/or its attorney shall be returned to the other party and all such
information so received shall be treated as confidential in accordance
with Section x.
NVID /s/ DJL IMS:
/s/ MJR
6. Conditions Precedent To Obligations Of Parties
6.1. Licensor's Closing Conditions.
-----------------------------
The obligations of Licensor hereunder are subject to fulfillment prior
to or at the Closing of each of the following conditions:
6.1.1 Representations and Warranties.
------------------------------
The representations and warranties of Licensee made pursuant to
Paragraph 1 above, shall be true and accurate in all material
respects as of the Closing Date.
6.1.2.1 Licensee will use reasonable commercial marketing efforts
in Licensees representations of all market niches covered in
this agreement.
6.1.2 Performance.
-----------
Licensee shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
6.1.3 No Adverse Changes.
------------------
There shall not have been, since the date of the latest audited
financial statements of Licensee, any materially adverse change
in Licensee's financial condition, assets, liabilities or
business.
6.1.4 Opinion of Licensee's Counsel.
-----------------------------
Licensee shall have delivered to Licensor an opinion of
Licensee's counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Attorney at Law, dated the
Closing Date to the effect that: (i) Licensee is a corporation
duly organized, validly existing and in good standing under the
laws of the State of California, has all requisite power to carry
on its business as now being conducted and to execute, deliver
and perform this Agreement and to perform its obligations; (ii)
Licensee is duly qualified to do business as a foreign
corporation and is good standing in each jurisdiction in which
the nature of the business conducted by it or the property owned,
operated or leased by it makes such qualification necessary;
(iii) this Agreement has been duly authorized by all necessary
corporate action on the part of Licensee, has been duly executed
and delivered by IMS and constitutes the legal, valid and binding
obligation of Licensee enforceable in accordance with its terms
except as enforceability thereof may be limited by the insolvency
or other laws affecting the rights of creditors and the
enforcement of remedies; (iv) Licensee has prepared and filed
with the SEC all periodic reports required of it under the 1934
Act; (v) neither the execution, delivery and performance by
Licensee of this Agreement, nor compliance by Licensee with the
terms and provisions hereof, will conflict with, or result in a
breach of the terms, conditions or provisions of, or will
constitute a default under, the Articles of Incorporation or
Bylaws of Licensee or any agreement or instrument known to such
counsel to which Licensee is a party or by which IMS or any of
its properties or assets are bound; (vi) there are no actions,
suits or proceedings pending or, to the knowledge of such
counsel, threatened against Licensee before any court or
administrative agency, which have, in the opinion of such
counsel, if adversely decided, will have any material adverse
effect on the business or financial condition of Licensee or
which questions the validity of this Agreement. In rendering his
opinion, counsel shall be allowed to rely on written
representations of officers and directors of the Licensee as to
factual matters without independent verification thereof.
6.1.5. Current Status with Securities and Exchange Commission.
------------------------------------------------------
Licensee shall have prepared and filed with the SEC all periodic
reports required under the 1934 Act pursuant to Section 12(g)
thereof.
6.1.6. Due Diligence.
-------------
Licensor shall have completed and be satisfied with its due
diligence investigation of Licensee pursuant to Paragraph 5.1.
6.2. Licensee's Closing Conditions.
-----------------------------
The obligations of Licensee hereunder are subject to fulfillment prior
to or at the Closing of each of the following conditions:
6.2.1 Representations and Warranties.
------------------------------
The representations and warranties of Licensor made pursuant to
Article 2 above, shall be true and accurate in all material
respects as of the Closing Date.
NVID /s/ DJL IMS:
/s/ MJR
6.2.2 No Adverse Changes.
------------------
There shall not have been, since the date of the latest audited
financial statements of Licensor, any materially adverse change
in their financial condition, assets, liabilities or business.
6.2.3 Opinion of Licensor's Counsel.
-----------------------------
Licensor shall have delivered to Licensee, an opinion of their
counsel, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, Attorney at Law, respectively, dated
the Closing Date to the effect that: (i) Licensor is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, has all requisite power
to carry on its business as now being conducted and to execute,
deliver and perform this Agreement and to perform its
obligations; (ii) Licensor is duly qualified to do business and
are in good standing in each jurisdiction in which the nature of
the business conducted by it or the property owned, operated or
leased by it makes such qualification necessary; (iii) this
Agreement has been duly authorized by all necessary corporate
action on the part of Licensor, has been duly executed and
delivered by Licensor and constitutes the legal, valid and
binding obligation of Licensor, enforceable in accordance with
its terms except as enforceability thereof may be limited by the
insolvency or other laws affecting the rights of creditors and
the enforcement of remedies; (iv) neither the execution, delivery
and performance by Licensor of this Agreement, nor compliance by
Licensor with the terms and provisions hereof, will conflict
with, or result in a breach of the terms, conditions or
provisions of, or will constitute a default under, the Articles
of Incorporation or Bylaws of Licensor or any agreement or
instrument known to such counsel to which Licensor is a party or
by which Licensor or any of its properties or assets are bound;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of such counsel, threatened against Licensor before any
court or administrative agency, which, in the opinion of such
counsel, if adversely decided, will have any material adverse
effect on the business or financial condition of Licensor or
which questions the validity of this Agreement. In rendering
their opinion, counsel shall be allowed to rely on written
representations of officers and directors of the Licensor as to
factual matters without independent verification thereof.
6.2.4. Due Diligence.
-------------
Licensee shall have completed and be satisfied with its due
diligence investigation of Licensor pursuant to Paragraph 5.1.
7. Patent and Copyright Indemnity.
7.1. Licensor warrants that the use of the Licensed Products by the
Licensee pursuant to the terms hereof shall not constitute an
infringement of any existing patent, copyright or other right.
Licensor hereby agrees to defend or settle any suit, proceeding or
claim brought against the Licensee based on a claim that the use of
the Licensed Products or any part thereof by the Licensee constitutes
an infringement of any existing patent, copyright or other right.
Licensor shall pay all damages or costs awarded against or expenses,
including attorneys' fees, incurred by the Licensee in such suit,
proceeding or claim.
7.2. In the event the Licensed Products or any part thereof shall be in
Licensor's opinion likely to or shall become the subject of a claim
for patent, copyright, or other infringement, Licensor shall, at its
option and expense, procure for the Licensee the right to continue
using such affected part of the Licensed Products or modify such
affected part to become non-infringing. Should Licensor elect to
remove or modify such infringing part of the Licensed Products,
Licensor shall forthwith replace such part with a functionally
equivalent non-infringing part or take other appropriate action to
insure that the Licensed Products conforms to the Specifications to
the Licensee's satisfaction, without cost to the Licensee.
7.3. In the event that Licensor shall refuse or shall be unable to supply
or shall be prevented from supplying the Licensed Products or any part
thereof to the Licensee, or in the event that the Licensee's continued
use of the Licensed Products shall be prohibited or enjoined at any
time, Licensor shall promptly replace all affected parts of the
Licensed Products with functionally equivalent non-infringing parts or
shall take such other action to insure that the Licensed Products
conforms to the Specifications to the Licensee's satisfaction, without
cost to the Licensee.
NVID /s/ DJL IMS:
/s/ MJR
7.4. Licensor warrants that the Licensee shall suffer no interruption of
its normal business activities or cycles as a result of any claimed
infringement, any litigation referred to in Paragraph 7.1 hereof or
any replacement of items contemplated in Paragraphs 7.2 hereof.
8. Miscellaneous
8.1. Expenses and Further Assurances.
-------------------------------
The parties hereto shall each bear their respective costs and expenses
incurred in connection with the transactions contemplated by this
Agreement. Each party hereto will use its best efforts provide any and
all additional information, execute and deliver any and all documents
or other written material and perform any and all acts necessary to
carry out the intent of this Agreement and to comply with U.S. law.
8.2. Survival of Representations, Warranties and Covenants.
-----------------------------------------------------
All of the representations, warranties and covenants made as of the
date of this Agreement and as of Closing, shall survive the closing of
this transaction.
8.3. Successors and Assigns.
----------------------
All representations, warranties, covenants and agreements in this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, representatives, successors
and assigns whether so expressed or not.
8.4. Governing Law.
-------------
This Agreement and the legal relations among the Parties hereto shall
be governed by and construed in accordance with the laws of the State
of California and that the State or Federal Courts of California shall
be the jurisdiction in which any legal proceedings relative to this
Agreement shall be brought. The foregoing notwithstanding, the Parties
agree that prior to litigation, they will arbitrate any disputes
relative to this Agreement through the services of the officers of the
American Arbitration Association in and for San Diego, California.
8.5. Attorney's Fees.
---------------
In any action brought to enforce the terms and conditions of this
Agreement, the prevailing party shall be entitled in addition to any
other remedies, its reasonable attorneys fees incurred in the
prosecution or defense of the action.
8.6. Section and Other Headings.
-----------------------------
The section and other headings herein contained are for convenience
only and shall not be construed as part of this Agreement.
8.7. Counterparts.
------------
This Agreement may be executed in any number of counterparts and each
counterpart shall constitute an original instrument, but all such
separate counterparts shall constitute but one and the same
instrument.
8.8. Entire Agreement.
----------------
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, understandings and
arrangements, oral or written, between the parties hereto with respect
to the subject matter hereof. This Agreement may not be amended or
modified, except by a written agreement signed by all parties hereto.
8.9. Severability.
------------
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffectual to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction.
8.10. Confidentiality.
---------------
Each party hereto agrees with the other parties that, unless and until
this Agreement has been consummated, or for a period of one (1) year
from the date of this Agreement if the transaction contemplated by
NVID /s/ DJL IMS:
/s/ MJR
this Agreement is not consummated it and its representatives will hold
in strict confidence all data and information obtained with respect to
the other party from any representative, Officer, Director or
employee, or from any books or records or from personal inspection, of
such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent such data or
information has theretofore been publicly disclosed, is a matter of
public knowledge or is required by law to be publicly disclosed; and
(ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement. The foregoing notwithstanding, Licensee shall be authorized
to publicly announce the execution and closing of this Agreement,
details thereof and a description of Licensor and the business
conducted thereby.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective Officers, hereunto duly authorized, as of the
date first above written.
NVID INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ Date: 11/29/99
------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ Date: 11/29/99
--------------------
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, Secretary
INNOVATIVE MEDICAL SERVICES
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Date: 12/23/99
-------------------
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Date: 12/23/99
------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
[LETTERHEAD]
NVID
INTERNATIONAL, INC.
DATE: January 3, 2000
TO: ▇▇▇▇ ▇▇▇▇▇
FROM: ▇▇▇▇ ▇▇▇▇▇▇
SUBJECT: Addition of New Zealand to AXEN Agreement
CC: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇▇
This memo will serve as an addendum to the Axen Agreement between NVID
International, Inc. and Innovative Medical Services. It has been agreed between
NVID International, Inc. and Innovative Medical Services that the Country of New
Zealand will be added to the geography granted to Innovative Medical Services in
regards to the Axen Agreement.
This now gives Innovative Medical Services the right to sell Axen into New
Zealand for the Healthcare Market (Section 3.1.3), Food Processing market
(Section 3.1.6), and the Dental Market. Innovative Medical Services has always
had the right to sell Axen into the Point-of-Use market (Section 3.1.2).
All for your information.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
President NVID International, Inc.
28870 U.S.19 North * Suite 300 * ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ * Fax ▇▇▇-▇▇▇-▇▇▇▇
