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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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