Exhibit 10.2
Execution Version
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
LICENSE AGREEMENT
This License Agreement (the “
Agreement ”) dated as of June 1, 2007 (the
“ Effective Date ”) is made by and between DSU
Medical Corporation, a Nevada corporation (“ Licensor
”), and Medisystems Corporation, a Washington corporation
(“ Licensee ”).
INTRODUCTION
A. Prior to the merger of
Medisystems Technology Corporation (“ MTC ”)
into Licensor, Licensor and MTC entered into that certain License
and Royalty Agreement dated as of October 1, 1998 (as amended,
the “ 1998 License ”) and MTC sublicensed
certain of the rights granted thereunder to Licensee pursuant to
that certain revocable Sub-License and Royalty Agreement dated as
of October 1, 1998, (as amended, the “ 1998
Sublicense, ” and together with the 1998 License, the
“ Existing Licenses”) .
B. Licensor, as successor in
interest to MTC’s rights under the Existing Licenses has
elected to revoke the 1998 Sublicense, terminate the 1998 License,
and grant Licensee a new license on the terms and conditions set
forth herein.
In consideration of the receipt by
Licensor of U.S. [**] Dollars ($[**]) and the mutual covenants and
promises contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Licensee and Licensor hereby agree as follows:
I.
DEFINITIONS
As used in this Agreement, the
following terms, whether used in the singular or plural, shall have
the following meanings:
1.1 “ Affiliate ”
means, with respect to any Person, any corporation, company,
partnership, joint venture and/or firm which controls, is
controlled by, or is under common control with such Person. For
purposes of this Section, “control” shall mean
(a) in the case of corporate entities, direct or indirect
ownership of at least fifty percent (50%) of the stock or shares
having the right to vote for the election of directors, and
(b) in the case of non-corporate entities, direct or indirect
ownership of at least fifty percent (50%) of the equity interest
with the power to direct the management and policies of such
non-corporate entities.
1.2 “ [**] ” means
that certain [**].
1.3 “ Covered Business
Methods ” means the methods and processes claimed in the
Licensed Class B Patents for developing, testing, training,
using, supplying, selling, manufacturing, storing, servicing,
supporting, distributing and otherwise commercializing the Covered
Products or Covered Treatment Methods.
1.4 “ Covered Methods
” means the Covered Treatment Methods and the Covered
Business Methods.
1.5 “ Covered Products
” means Electro-Mechanical Equipment, Tubing Sets, Bag Sets,
Blood Access Devices, Fluid Filters and Fluid Preparation Devices
for the preparation, transport, containment or treatment of blood,
dialysate or replacement fluids in Covered Treatments, as well as
the Needle Safety Devices, Securement Devices and Components used
in connection therewith, each as defined below:
(i) “
Blood Access Devices ” mean AVF, Apheresis, Buttonhole
needles and similar products and angiograph and central venous
catheters and other similar catheters. Blood Access Devices are
deemed to include 10 gauge to 18 gauge winged needle sets and to
exclude 19 gauge to 30 gauge winged needle sets.
(ii) “
Components ” mean the connectors, chambers, clamps,
tubing, injection sites, LockSite needle-less valves (only to the
extent such valves are covered by the claims of the LockSite
Patents), caps, filters, used in connection with the Covered
Products.
(iii) “
Electro-mechanical Equipment ” means dialysis
machines, fluid preparation machines, dialysate preparation
machines, CHF-type machines, fluid warmers and other similar
machines.
(iv) “
Fluid Filters ” mean hemodialyzers, hemofilters, final
filters, Water treatment filters, immuno-absorption filters and
other similar filters.
(v) “
Needle Safety Devices ” means the Medic Product and
similar needle safety devices, provided, however that “Needle
Safety Devices” shall not include needle-bearing syringes
with an attachable dull or safety needle component.
(vi) “
Securement Devices ” mean the products currently
referred to as “MasterLock™”,
“Wedgie™” and other similar products.
(vii) “
Tubing Sets ” mean blood tubing sets, peritoneal
dialysis sets, dialysate sets, apheresis sets and other similar
tubing sets.
1.6 “ Covered Treatments
” means Extracorporeal Fluid Treatments and/or Renal
Insufficiency Treatments.
1.7 “ Covered Treatment
Methods ” means the methods and processes claimed in the
Licensed Class B Patents for developing, testing, using, supplying,
selling, manufacturing, storing, servicing, supporting,
distributing, training and otherwise commercializing the Covered
Products and/or performing Extracorporeal Fluid Treatment or Renal
Insufficiency Treatment.
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1.8 “ Excluded Patents
” means any and all (a) patents and patent applications
set forth in Exhibit C hereto, (b) continuations,
divisionals, re-examinations, substitutions, renewals, extensions,
foreign counterparts and reissues of the patents and patent
applications set forth in Exhibit C , (c) patents
and patent applications, other than continuations in part, claiming
priority from one or more of any of the foregoing, and (d) all
continuations in part that include at least one patent claim that
is entitled to claim the benefit of the filing date of one or more
of any of the foregoing.
1.9 “ Existing Customers
” shall mean the following entities that purchased the Medic
Products and/or the Blood Access Devices products from MDS as of
the Effective Date: Henry Schein, Inc., [**], and B. Braun Inc.
(and their successors and assigns).
1.10 “ Extracorporeal Fluid
Treatments ” mean therapies, treatments or procedures
consisting of the withdrawal of a patient’s bodily fluid for
the purpose of treating, collecting, separating, modifying or
otherwise acting upon such fluid extracorporeally, followed by
return of all or a portion of such fluid to the body.
Extracorporeal Fluid Treatments include, but are not limited to
hemodialysis, hemofiltration, ultrafiltration, hemodiafiltration,
therapeutic removal or collection of plasma and/or cellular
components, phresis and apheresis.
1.11 “ Field ”
means the development, manufacture, use, importation and sale of
Covered Products for use in Covered Treatments and the practice of
Covered Methods in Covered Treatments.
1.12 “ KL Sublicense
” means that certain Sublicense Agreement for [**] Gauge
Field of Use entered into between Licensee and Kawasumi
Laboratories, Inc. dated February 1, 2001.
1.13 “ Licensed Class A
Patents ” means, whether existing now or in the future
anywhere in the world, any and all (a) patents and patent
applications set forth in Exhibit A hereto, (b)
continuations, divisionals, re-examinations, substitutions,
renewals, extensions, foreign counterparts and reissues of the
patents and patent applications set forth in Exhibit A
, (c) patents and patent applications, other than
continuations in part, claiming priority from one or more of any of
the foregoing, and (d) all continuations in part that include
at least one patent claim that is entitled to claim the benefit of
the filing date of any of the foregoing.
1.14 “ Licensed Class B
Patents ” means, whether existing now or in the future
anywhere in the world, any and all (a) patents and patent
applications set forth in Exhibit B hereto, (b)
continuations, divisionals, re-examinations, substitutions,
renewals, extensions, foreign counterparts and reissues of the
patents and patent applications set forth in Exhibit B
, (c) patents and patent applications, other than
continuations in part, claiming priority from one or more of any of
the foregoing, and (d) all continuations in part that include
at least one patent claim that is entitled to claim the benefit of
the filing date of any of the foregoing. For purposes of clarity,
Licensed Class B Patents include the LockSite Patents.
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1.15 “ Licensed Patents
” means the Licensed Class A Patents and the Licensed
Class B Patents.
1.16 “ Licensed
Trademarks ” means the trademarks, service marks and
designs as set forth on Exhibit E .
1.17 “ LockSite Patents
” means any and all (a) patents and patent applications
set forth in Exhibit D hereto, (b) continuations,
divisionals, re-examinations, substitutions, renewals, extensions,
foreign counterparts and reissues of the patents and patent
applications set forth in Exhibit D , (c) patents
and patent applications, other than continuations in part, claiming
priority form one or more of any of the foregoing, and
(d) continuations in part that include at least one patent
claim that is entitled to claim the benefit of the filing date of
one or more of any of the foregoing.
1.18 “ Medic Product
” means the product currently known as the Medic TM Anti-stick
plastic needle.
1.19 “ Party ”
means Licensee or Licensor; “ Parties ” means
Licensee and Licensor. As used in this Agreement, references to
“third parties” do not include a Party or its
Affiliates.
1.20 “ Person ”
means a natural person, sole proprietorship, corporation, general
partnership, limited partnership, limited liability partnership,
limited liability company, joint venture, unincorporated
organization, joint stock company, trust, estate, governmental
entity or other legally-recognized entity.
1.21 “ Renal Insufficiency
Treatments ” mean therapies, treatments or procedures for
chronic or acute renal insufficiency. Renal Insufficiency
Treatments include, but are not limited to, peritoneal dialysis
hemodialysis, ultrafiltration, hemodiafiltration and hemofi

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