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Exhibit 99.3
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, dated as of November 23, 1998
(this "Agreement"), is by and between Neuromedical Systems, Inc., a Delaware
corporation ("NSI"), and NetMed, Inc., an Ohio corporation ("Licensee"). This
Agreement supersedes and replaces any and all prior agreements by and between
NSI and Licensee and any of its predecessors-in-interest, including, without
limitation, Papnet of Ohio, Inc., an Ohio corporation ("Papnet of Ohio"), Papnet
Indiana Limited Partnership, an Ohio limited partnership, Papnet West Limited
Partnership, an Ohio limited partnership, ER Group, Inc., an Ohio corporation
and Carolina Cytology Licensing Company, an Ohio general partnership.
WHEREAS, NSI has designed, developed and produces the PAPNET(R) Testing
System ("PAPNET(R)," "PAPNET(R) System" or "PAPNET(R) Testing"), which is a
semiautomated system for the review of cell, tissue or body fluid specimens
("Slides") including, but not limited to, cervical cytology specimens;
WHEREAS, the PAPNET(R) System consists of a scanning system (the
"Scanner"), which processes Slides and stores digital images of certain portions
of such Slides on a digital tape ("PAPNET(R) Images"), and a proprietary review
station (the "Review Station"), which, among other things, permits a
cytotechnologist trained by NSI to review the images stored on the digital tape;
WHEREAS, NSI, markets and sells PAPNET(R) Testing as a service, by
which, end-user laboratories submit Slides to one of NSIs central facilities for
processing on a Scanner ("Scanning Centers"), and NSI returns such Slides and
the related digital tape containing PAPNET(R) Images to such laboratories so
that NSI-trained cytotechnologists employed by such laboratories may review the
Slides and the related PAPNET(R) Images using a licensed, leased or purchased
Review Station (the scanning of Slides and the use of the Review Station
(whether by license, lease or purchase) are collectively referred to herein as
the "PAPNET(R) Service");
WHEREAS, NSI has been granted patents #4,965,725, #5,257,182,
#5,287,272, #5,333,207 and #5,544,650 by the United States government, covering
the use of neural networks for the classification of cell, tissue or body fluid
specimens, and has certain other patents and patent applications issued and
pending in the United States and elsewhere and has or will have certain other
patents in development relating to the PAPNET(R) System or the PAPNET(R) Service
(the "Patents"); and
WHEREAS, NSI has used the trademarks and trade names "Neuromedical
Systems", " NSI", "PAPNET(R)" and its "box" logo and may use other names or
marks to identify or describe the PAPNET(R) Service (the Patents and all pending
and future worldwide patents and patent rights, copyrights, trademarks, trade
names, trade secrets, know-how, utility models, improvements thereon and other
intellectual property rights in and to the PAPNET(R) System or the PAPNET(R)
Service, including without limitation, all applications and registrations with
respect thereto, are collectively referred to as the "Intellectual Property");
and
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WHEREAS, Licensee acknowledges NSI's exclusive right in and to the
Intellectual Property and the use thereof and NSI acknowledges Licensee's
limited rights to use the Intellectual Property as provided herein; and
WHEREAS, NSI wishes, to enter into this Agreement with Licensee to
amend and restate its previous agreement with Licensee and any of its
predecessors-in-interest and to reflect the business combination into Licensee
as a result of the merger of Papnet of Ohio, Inc., Papnet Indiana Limited
Partnership, Papnet West Limited Partnership, Carolina Cytology Licensing
Company and ER Group, Inc., which were formerly licensees of NSI; and
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. DEFINITIONS.
For purposes of this Agreement, capitalized terms shall have the
meanings set forth below:
"Agreement" shall have the meaning set forth under the preamble hereto.
"Client" shall mean the ultimate laboratory purchaser of the PAPNET(R)
Service from NSI and the Licensee.
"End User License" shall mean the form of agreement attached hereto as
Exhibit A, as the same may be amended from time to time.
"FDA" shall mean the United States Food and Drug Administration.
"Indemnifying Party" shall have the meaning set forth under Section
10.3 of this Agreement.
"Indemnified Person" shall have the meaning set forth under Section
10.3 of this Agreement.
"Intellectual Property" shall have the meaning set forth under the
fifth recital of this Agreement.
"Lease Service Costs" shall mean the charges to Licensee per Slide for
all service provided by NSI in processing slides from Clients in the Licensed
Territory. This charge will cover all costs of NSI related to the processing of
Slides by the laboratory, including but not limited to Slide processing, review
stations, CDs, DATs, upgrades, software, hardware, transportation costs (except
Slide Transportation Costs), training costs and all other such costs. The charge
shall be the lower of: a) $1.00 per Slide, or b) NSI's average actual equipment
cost per Slide for the acquisition of Scanners and related equipment used in
rendering the PAPNET(R) Service. The per Slide charge under this paragraph in
any year shall be calculated by dividing the average capitalized cost to NSI
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as recorded on its books of account of the Scanners and related equipment (i) by
the average useful life thereof for depreciation purposes and (ii) then by the
actual annual average processing volume of such equipment. The foregoing
calculation shall be made annually, based upon cost, depreciation and processing
volume data from the preceding fiscal year. This method will be the same method
used to determine the cost to Licensee of any future equipment or service.
"Licensed Territory" shall mean the States of Ohio, Georgia, Kentucky,
Missouri and North Carolina and the consolidated metropolitan statistical area
("CMSA") of Chicago, Illinois, provided, however, that for purposes of this
Agreement, the CMSA Chicago excludes the primary metropolitan statistical area
("PMSA") of Gary, Indiana, and includes only the PMSAs of Chicago, Illinois,
Kankakee, Illinois and Kenosha, Wisconsin, as defined by the United States
Office of Management and Budget source information files of the Population
Estimates Program, Population Division, U.S. Bureau of the Census.
"Licensee" shall have the meaning set forth under the preamble of this
Agreement.
"Loss" shall have the meanings set forth under Section 10.1 and 10.2 of
this Agreement.
"Multistate National Laboratories" shall mean any customers of NSI that
process more than 750,000 Slides annually, and which either (i) have Slide
processing laboratories both within and without the Licensed Territory, or (ii)
have ten percent (10%) or more of their annual Slide volume originating from
patients located within the Licensed Territory. The parties will annually
evaluate the Slide volumes of clinical laboratory companies in the United States
to identify the laboratory companies that meet this definition.
"Notice" shall have the meaning set forth under Section 10.3 of this
Agreement.
"Notice of Defense" shall have the meaning set forth under Section 103
of this Agreement.
"NSI" shall mean Neuromedical Systems, Inc. and its subsidiaries.
"NSI Technology" shall mean any and all applications, modifications,
refinements and improvements of the Patents and Intellectual Property, whether
or not patented, including but not limited to the application of neural network
technology to the classification of Slides and any patents, patent rights,
copyrights, trademarks, trade names, trade secrets, know-how, utility models,
improvements thereon and other intellectual property rights developed or
acquired by NSI to assist in the sale, processing or enhancement of the
PAPNET(R) System or the PAPNET(R) Service or products related thereto.
"PAPNET(R)" shall have the meaning set forth under the first recital of
this Agreement.
"PAPNET(R) Images" shall have the meaning set forth under the second
recital of this Agreement.
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"Papnet of Ohio" shall have the meaning set forth under the preamble to
this Agreement.
"PAPNET(R) Service" shall have the meaning set forth under the third
recital of this Agreement.
"PAPNET(R) System" shall have the meaning set forth under the first
recital of this Agreement.
"PAPNET(R) Testing" shall have the meaning set forth under the first
recital of this Agreement.
"Patents" shall have the meaning set forth under the fourth recital of
this Agreement.
"Person" shall have the meaning ascribed to such term under Section
13(d) of the Securities Exchange Act of 1934.
"Proprietary Materials" shall have the meaning set forth under Section
9.1 of this Agreement.
"Revenue Slide" shall mean a Slide processed using the PAPNET(R) System
or the PAPNET(R) Service for which any charge is made by NSI.
"Review Station" shall have the meaning set forth under the second
recital of this Agreement.
"Royalties" shall have the meaning set forth under Section 3.1 of this
Agreement.
"Sales Materials Credit" shall have the meaning set forth under Section
2.2(a) of this Agreement.
"Scanner" shall have the meaning set forth under the second recital of
this Agreement.
"Scanning Centers" shall have the meaning set forth under the third
recital of this Agreement.
"Slides" shall have the meaning set forth under the first recital of
this Agreement.
"Slide Transportation Costs" shall mean the actual costs to NSI of
transporting Revenue Slides between the Clients in the Licensed Territory and
the applicable Scanning Center.
"Term" shall have the meaning set forth under Section 12(a) of this
Agreement.
"Territory Gross Revenues" shall mean all sales, revenues or receipts
recognized by NSI as sales or revenue under generally accepted accounting
principles consistently applied, arising directly or indirectly from the sale,
licensing or use of the PAPNET(R) System, PAPNET(R), Service, and/or any NSI
Technology within the Licensed Territory, without any allowances) credits or
deductions
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(other than such as would constitute price rebates, in the form of discounts or
other reductions in the effective price per Slide charged to Clients),
regardless of whether such sales, revenues or receipts are attributable to
Licensee's activities within the Licensed Territory.
"Worldwide Gross Revenues" shall mean all sales, revenues (regardless
of whether such revenues are characterized as operating or non-operating
revenues on NSI's consolidated financial statements) or receipts recognized by
NSI as sales or revenue under generally accepted accounting principles
consistently applied (and expressed in U.S. Dollars), without any allowances,
credits or deductions (other than such as would constitute price rebates, in the
form of discounts or other reductions in the effective price per Slide charged
to Clients).
2. DISTRIBUTION AND MARKETING.
2.1 DISTRIBUTION RIGHTS. Upon the terms and subject to the conditions
of this Agreement, NSI hereby grants to Licensee during the Term of this
Agreement an exclusive right and license to sell the PAPNET(R) Service and any
and all other NSI Technology in the Licensed Territory. Notwithstanding the
foregoing, the grant of exclusive rights to Licensee hereunder shall not
prohibit NSI from conducting sales activities in the Licensed Territory directly
through NSI's national sales force and marketing in the Licensed Territory,
provided that NSI gives Licensee reasonable advance notice of such activities.
2.2 MARKETING AND SALES.
(a) Licensee agrees to use reasonable efforts to promote and sell
the PAPNET(R) Service within the Licensed Territory. Licensee will conduct such
activities as it undertakes in accordance with marketing and sales policies and
procedures of uniform national application promulgated from time to time by
NSI's Vice President of Marketing and Sales, its Director of Sales, or such
other person as NSI shall appoint for such purpose. Licensee will provide
periodic sales reports and other sales-related information and internal reports
to NSI as provided in such uniform policies adopted by NSI from time to time,
and otherwise on the same basis as such information and reports are provided to
Licensee's management, including assistance to NSI's Director of Sales in the
preparation of monthly master production schedules. Licensee's Sales Manager
shall also have access to such NSI sales data on the same basis as NSI's
Director of Sales and shall promptly receive copies of internal NSI reports
related to same. Notwithstanding the foregoing, NSI data relating to regions
outside of the Licensed Territory (including aggregate national data) for any
fiscal period of NSI shall not be required to be made available to Licensee
until after NSI has filed its applicable periodic report as required under
Section 13 of the Securities Exchange Act of 1934, and any material nonpublic
sales information of Licensee for any fiscal period of Licensee shall not be
required to be made available to NSI until after Licensee has filed its
applicable periodic report as required under Section 13 of the Securities
Exchange Act of 1934. All data and reports of a party provided to the other
under this Section 2.2(a) shall be received by such other party subject to
reasonable policies of the providing party regarding the use and disclosure of
confidential information as the same are applicable to the providing party's
officers and employees.
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(b) NSI shall have authority over the marketing and selling
materials and methods relating to the PAPNET(R) Service. Licensee shall provide
only NSI-approved marketing materials to Clients. NSI shall make available to
Licensee, for a charge not to exceed NSI's actual per-unit incremental cost
(exclusive of charges for design and other creative services), all such
brochures, pamphlets, reprints and other marketing and sales materials as are
available to NSI, in sufficient quantities for Licensee to conduct efficient
marketing activities in the Licensed Territory; provided, however, that if use
of any such materials is mandated by NSI, NSI shall bear the entire costs
thereof. Licensee may also reproduce marketing materials obtained from NSI for
use in conducting Licensee's marketing activities, provided that such
reproduction shall be of equal or better quality. As requested by Licensee, NSI
will use reasonable efforts to make available to Licensee other information,
data, reprints and public speakers to aid in the promotion of the PAPNET(R)
Service within the Licensed Territory, on reasonable terms and conditions,
For purposes of this Agreement, NSI grants to Licensee a credit of
$50,000 per year applicable for Licensee to acquire NSI produced sales and
marketing materials (the "Sales Materials Credit"). The Sales Materials Credit
may be applied by Licensee as payment for the acquisition of any NSI sales and
marketing materials that NSI provides to its own sales force and customers. The
Sales Materials Credit shall be valid during each year of the term of this
Agreement, but cannot be carried over from one year to the next. No part of the
Sales Materials Credit may be paid directly to Licensee or otherwise credited to
Licensee in payment of any other obligations of Licensee. Orders from and
payments to any third party with respect to the Sales Materials Credit may be
made only by NSI. Shipping costs for NSI sales and marketing materials requested
by Licensee are included in the annual Sales Materials Credit amount (i.e., the
Sales Materials Credit is valid for the aggregate of all NSI materials and
shipping costs requested by Licensee up to the $50,000 annual limit). The Sales
Materials Credit will be effective as of December 7, 1995.
(c) Licensee shall obtain prior written approval from NSI for the
use of any marketing materials for the PAPNET(R) Service which may be
independently developed by Licensee. Any such request shall be made in writing
to NSI's Vice President of Marketing, with a copy to NSI's General Counsel. NSI
will promptly respond in writing to any such request; failure to respond within
30 days of receipt of any such request which has been delivered by certified
mail shall constitute approval by NSI of such materials. NSI will have the
ability to approve or deny use of such materials in the exercise of its
reasonable discretion. All marketing materials independently developed by
Licensee incorporating the Intellectual Property or relating to the PAPNET(R)
System or the PAPNET(R) Service shall clearly indicate Licensee's relationship
with NISI.
(d) Should NSI engage in advertising in visual, audio or print
media or direct mail or direct response campaigns, or other similar methods of
promoting the PAPNET(R) Service, which are substantially national in scope and
tenor, NSI shall conduct a level of such promotional efforts in the Licensed
Territory proportionate to the level of population within the Licensed
Territory. NSI shall bear the cost of any such advertising or promotional
activities which it conducts within the Licensed Territory.
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(e) NSI agrees to use reasonable efforts to inform Licensee of its
marketing and sales efforts in the Licensed Territory. NSI will use reasonable
efforts to provide Licensee the opportunity to participate in the implementation
of marketing policies, strategies, and programs and will use its best efforts to
provide a representative of Licensee the opportunity to attend, either by phone
or in person, all relevant meetings and other programs of NSI that relate to
implementation of such policies, strategies and programs, or to any marketing,
sales or customer relations activities in the Licensed Territory.
(f) NSI agrees to cooperate with Licensee and to provide without
charge its facilities and employees in arranging and conducting product
demonstrations, tours of NSI facilities, meetings with NSI executives, and
similar activities in connection with Licensee's marketing, sales and public
relations efforts, upon reasonable prior notice and during normal business
hours.
2.3 SALES PERSONNEL. Licensee will consult with and give reasonable
consideration to NSI's evaluations and recommendations regarding the employment
and retention of sales representatives of Licensee who market and sell the
PAPNET(R) Service, and such evaluations and recommendations will be based upon
criteria similar to those employed by NSI in the hiring and retention of its own
sales force. NSI shall provide without cost to Licensee initial and periodic
training of Licensee's sales personnel to the same extent and on the same basis
that such training is provided to NSI's sales personnel, and shall keep
Licensee's sales personnel updated with appropriate sales materials and other
information. Licensee agrees to cause its sales personnel to participate in
periodic marketing or sales meetings and conference calls conducted by NSI for
its national sales force, and NSI shall bear the costs of travel and lodging for
meetings or other programs at which attendance by Licensee's sales personnel is
requested by NSI.
2.4 INTELLECTUAL PROPERTY. NSI hereby grants Licensee an irrevocable
right to use during the Term of this Agreement, for the purpose of Licensee's
marketing and sale of the PAPNET(R) Service in accordance with and subject to
the terms of this Agreement, the copyrights, trademarks, and trade names used by
NSI to identify PAPNET(R) or the PAPNET(R) Service. Licensee agrees to comply
with such written policies of general application which NSI shall from time to
time adopt concerning the use of NSI's copyrights, trademarks and trade names by
NSI personnel, distributors and other representatives. Licensee shall have the
right to reproduce NSI's trademarks and logos on its business cards, letterhead
stationery, and corporate communications, provided that such materials indicate
Licensee's relationship with NSI. Licensee shall not use NSI's copyrights,
trademarks or trade names in a disparaging manner. Licensee shall not take any
action which is inconsistent with NSI's ownership of its copyrights, trademarks
and trade names, and agrees that each of the foregoing shall inure to the
benefit of NSI. NSI agrees to include correct trademark, trade name, copyright,
trade secret and patent notices for the PAPNET(R) System and the PAPNET(R)
Service on all materials and equipment where appropriate. Licensee shall not
remove, alter, cover, obfuscate or otherwise deface any NSI trademark, trade
name, patent, trade secret or copyright notice on the PAPNET(R) System or any
part thereof or on any promotional or advertising material used in conjunction
with or for the PAPNET(R) System or the PAPNET(R) Service. The foregoing
provisions shall also apply to any other NSI Technology licensed to Licensee
hereunder. Licensee agrees not to represent that
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any product or service sold by it in conjunction with the PAPNET(R) System or
the PAPNET(R) Service, and which is not licensed by NSI, is a product or service
manufactured, provided or endorsed by NSI.
2.5 NATURE AND SCOPE OF APPOINTMENT. Licensee shall not knowingly
market, distribute, sell or license the PAPNET(R) System or the PAPNET(R)
Service outside of the Licensed Territory or for any use, other than as
permitted by NSI; provided, however, that activities of Licensee outside the
Licensed Territory reasonably incidental to marketing and sales activities
within the Licensed Territory shall not be a violation of this Section 2.6.
Licensee shall not, nor shall it encourage or assist any third party to, make
use of the PAPNET(R) System other than as permitted or recommended by NSI and
indicated by the PAPNET(R) System's labeling. Nothing contained in this
Agreement shall prohibit NSI from making, using, licensing, distributing,
selling or granting any rights in and to the PAPNET(R) System or the PAPNET(R)
Service outside of the Licensed Territory so long as there is no material effect
on Licensee's exclusive rights within the Licensed Territory.
2.6 REGULATORY COMPLIANCE. NSI agrees to promptly advise Licensee in
writing of its policies with regard to governmental regulations affecting the
PAPNET(R) System or the PAPNET(R) Service and any changes in such policies which
may occur from time to time. Licensee agrees that any marketing or use of the
PAPNET(R) System or the PAPNET(R) Service shall conform to NSI's practices or
policies with respect to compliance with governmental regulations. Licensee
agrees to use its reasonable efforts to cause its sales force to operate in
strict compliance with NSI's policies and practices, and generally with all
applicable governmental regulations applicable to their activities.
2.7 GOVERNMENTAL RESTRICTIONS. To the extent that any court,
governmental body or regulatory agency with jurisdiction over NSI or Licensee
restricts or prohibits the marketing, distribution, provision or licensing of
the PAPNET(R) System or the PAPNET(R) Service, Licensee's rights hereunder shall
be subject to and limited by any such restriction or prohibition without
liability to NSI of any type or nature except as expressly provided herein to
the contrary.
2.8 UPGRADES; IMPROVEMENTS. The provisions of this Agreement and the
marketing and royalty rights of Licensee hereunder shall apply to any and all
upgrades and improvements of the PAPNET(R), System or the PAPNET(R) Service,
whether or not patented, as well as any other product or service marketed or
sold by NSI which is defined as "NSI Technology" hereunder.
3. ROYALTIES.
3.1 AMOUNT AND PAYMENT.
(a) With respect to each fiscal month during the Term of this
Agreement NSI shall be obligated to pay Licensee Royalties equal to fifty
percent (50%) of the amount by which Territory Gross Revenues recognized by NSI
during such month exceeds the sum of the Lease Service Costs and Slide
Transportation Costs associated with the Slides processed during such
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month; provided, however, that the total amount of Royalties payable under this
Section 3.1(a) with respect to any fiscal year of NSI shall not exceed the
amount of Royalties determined with respect to Territory Gross Revenues
recognized by NSI from the processing of the first 9,736,735 Revenue Slides for
such fiscal year which originate in the Licensed Territory.
(b) Notwithstanding the provisions of Section 3.1(a), in the event
that the aggregate amount of monthly Royalties paid with respect to any fiscal
year of NSI shall be less than three and one-half percent (3.50%) of NSI's
Worldwide Gross Revenues for such fiscal year, NSI shall pay to Licensee as
additional Royalties the amount of such difference; provided, however, that the
total amount of Royalties payable under this Section 3.1(b) with respect to any
fiscal year of NSI shall not exceed $18,385,087 (eighteen million, three hundred
eighty five thousand, eighty seven dollars).
(c) The Royalties due with respect to any fiscal month shall be
reported by NSI to Licensee within fifteen (15) days after the conclusion of
such month, and shall be paid by NSI to Licensee as soon as possible, but not
later than thirty (30) days, after the conclusion of such month. Any additional
Royalties payable pursuant to Section 3.1(b) shall be reported and paid by NSI
to Licensee not later than ninety (90) days after the end of the fiscal year
with respect to which such additional Royalties are due. Royalty reports
furnished by NSI to Licensee pursuant to this Section 3.1(c) shall set forth the
calculation of the Royalties in reasonable detail so that Licensee can determine
the accuracy thereof. Royalties shall be paid by check or wire transfer.
(d) NSI's obligation to pay any Royalties due under this Section
3.1 shall not be subject to any conditions or limitations other than as provided
in this Section.
(e) For purposes of determining Licensee's share of Territory Gross
Revenues during any applicable period, there shall be included in Territory
Gross Revenues during such period a proportionate share of gross revenues
recognized by NSI arising directly or indirectly from the sale, licensing or use
of the PAPNET(R) System, PAPNET(R) Service, and/or any NSI Technology to
Multistate National Laboratories, without any allowances, credits or deductions
(other than such as would constitute price rebates, in the form of discounts or
other reductions in the effective price per Slide charged to Clients),
regardless of whether the Revenue Slides attributable to such Multistate
National Laboratories actually originate in the Licensed Territory. Such
proportionate share shall be equal to the ratio which the population of the
Licensed Territory bears to the population of the United States, as determined
from time to time from the most recently available United States census data. As
of the date of this Agreement, such ratio is 16.23%. In determining the amount
of Royalties payable during any applicable period with respect to such
proportionate share of gross revenues, an amount representing Lease Service
Costs and Slide Transportation Costs will be deducted from Territory Gross
Revenues. Such costs shall be determined by multiplying the average per Revenue
Slide Lease Service Costs and Slide Transportation Costs in the Licensed
Territory times the number of Revenue Slides represented by the proportionate
share of gross revenues from Multistate National Laboratories included in the
Territory Gross Revenues.
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(f) In the event that the PAPNET(R) System, PAPNET(R) Service,
and/or any NSI Technology is ever applied by NSI to the processing of Slides
other than cervical cytology specimens (i.e., "PAP" smears), the parties will in
good faith negotiate an increase in the Royalties cap contained in Section
3.1(a) above to accord Licensee a share of the additional Territory Gross
Revenues attributable to such new Slide processing business, which is
proportionate to the ratio which the population in the Licensed Territory bears
to the total population of the United States at the time.
3.2 BOOKS AND RECORDS. NSI agrees to keep full and accurate books and
records showing all billings, Territory Gross Revenues, Worldwide Gross
Revenues. Lease Service Costs, Slide Transportation Costs and Revenue Slide
geographic origin in sufficient detail to enable Royalties to be determined and
paid by it under this Article 3. NSI further agrees that Licensee and its
representatives shall be permitted to inspect such books and records from time
to time during regular business hours and to make such copies thereof as
reasonably appropriate. Licensee shall be entitled to have such books and
records audited by a certified public accountant at Licensee's expense, and NSI
agrees to place at the disposal of Licensee's accountant all books and records
necessary or desirable in connection with such audit and to give such auditor
reasonable assistance and cooperation. The cost of any such inspection or audit
shall be borne by Licensee.
3.3 CALCULATION OF GROSS REVENUES. The determination of NSI's
independent auditor as to Worldwide Gross Revenues for any fiscal year shall be
deemed presumptively correct. If disputed, Licensee shall have the right to make
reasonable inquiry as to the method by which Worldwide Gross Revenues have been
calculated and NSI shall instruct its auditor to provide a prompt and thorough
response to such inquiry. Any and all disputes concerning the determination of
Territory Gross Revenues or Worldwide Gross Revenues shall be subject to
arbitration as provided in Section 13 of this Agreement.
3.4 REMEDY FOR NON-PAYMENT OF ROYALTIES. Without limiting any other
Rights or remedies to which Licensee may be entitled hereunder, in the event of
the failure of NSI to pay Licensee any Royalties when required to be paid under
Section 3.1(c), interest thereon shall accrue monthly at the rate of 1.5% (18%
per annum).
4. CONTRACT TERMS AND PROCEDURES, CLIENT TRAINING AND SERVICE.
4.1 GENERAL. NSI shall provide Licensee with its standard form or forms
of End User License and other forms of contracts to be executed between NSI and
Clients, which shall be used by Licensee and NSI in the Licensed Territory.
Licensee and NSI shall cooperate in negotiating the definitive terms of such
contracts between NSI and Clients in the Licensed Territory. NSI agrees to
comply with the terms of any End User License it enters into with Clients.
4.2 CONTRACTING OBLIGATIONS OF NSI. NSI shall enter into contracts with
Clients in the Licensed Territory under the same terms, conditions, charges,
added customer benefits, and exceptions as it does in the remainder of the
United States. NSI shall not refuse to enter into or delay
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entering into any contract with a Client in the Licensed Territory except upon
grounds stated in NSI's written policies and procedures of uniform national
application which have been provided to Licensee. In the event of such a delay
or refusal, NSI shall promptly provide written notice to Licensee of such delay
or refusal and the detailed grounds therefor, and shall cooperate with
Licensee's efforts to remedy any noted deficiencies.
4.3 NONDISCRIMINATION. NSI agrees that pricing, discounts and
concessions, delivery schedules, and other contract terms of the PAPNET(R)
Service provided to Clients within the Licensed Territory, as well as the
quality and timeliness of service to them, will be no less favorable to such
Clients than for laboratories, insurance companies or other purchasers in any
other region or locality than in the United States, except to the extent that
NSI can demonstrate that any variance in pricing, discounts and concessions, or
other contract terms is proportionate to differences in the cost of servicing a
particular customer. Notwithstanding the foregoing, if NSI shall enter into
agreements with laboratories, insurance companies or other purchasers on
economic, or business terms materially different than provided to Clients within
the Licensed Territory, at Licensee's request, NSI shall extend such differing
terms to Clients in the Licensed Territory with comparable costs of service. In
order to assess NSI's compliance with this Section 43, NSI will permit Licensee
to inspect, during normal business hours, NSI's contract files for Clients
located outside of the Licensed Territory. The provisions of this Section 4.3
shall not impose any obligation on NSI to extend pricing, discounts,
concessions, or other contract terms applicable to Multistate National
Laboratories to Clients in the Licensed Territory.
4.4 TRAINING AND REVIEW STATIONS. NSI shall provide training in the
operation and maintenance of the Review Station and the evaluation of PAPNET(R)
Images to personnel of Clients in the Licensed Territory, on terms and schedules
comparable to those offered to Clients outside the Licensed Territory. NSI will
notify Licensee of any anticipated delays in the delivery of Review Stations or
in training of Client personnel of greater than thirty (30) days after execution
and delivery of the End User License and other standard contract forms required
by NSI.
6. REPRESENTATIONS AND WARRANTIES OF NSI.
NSI (which term, for purposes of this Article 6, does not include
subsidiaries) hereby represents and warrants to Licensee as follows:
6.1 ORGANIZATION. NSI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. NSI has the
corporate power to own or lease its properties and assets and to carry on its
business as now conducted.
6.2 AUTHORITY RELATIVE TO THIS AGREEMENT. NSI has the right, power and
authority to enter into this Agreement and to perform all of its obligations
hereunder. This Agreement has been authorized by all necessary corporate action
of, has been duly executed and delivered by, and constitutes the valid and
binding obligation of, NSI, and is enforceable in accordance with its terms.
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6.3 NO CONFLICTS; NO CONSENTS. The execution, delivery and performance
of this Agreement will not result in a breach in the terms or conditions of, or
constitute a default under, or violate, or conflict with, or require, as the
case may be: (i) any provision of any law, regulation or ordinance; (ii) the
Certificate of Incorporation or Bylaws of NSI; (iii) any agreement, lease,
mortgage or other instrument or undertaking, oral or written, to which NSI is a
party or by which it or any of its properties or assets is or may be bound or
affected; (iv) any judgment, order, writ, injunction or decree of any
governmental authority, or (v) any action of or by, or filing with, any
governmental authority. The execution and delivery of this Agreement do not and,
except for any approvals, permits and licenses required to market the PAPNET(R)
Service in the Licensed Territory, the performance of this Agreement will not,
require any action, consent or approval of any person, entity or governmental
authority.
6.4 LITIGATION. Except as disclosed in reports publicly filed with the
Securities Exchange Commission pursuant to the Securities Exchange Act of 1934,
as amended, there is no pending or, to the knowledge of NSI, threatened legal,
administrative, arbitration or other proceeding or governmental investigation
which is likely to have a material adverse effect on NSI or the performance by
NSI of its obligations under this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF LICENSEE.
Licensee hereby represents and warrants to NSI as follows:
7.1 ORGANIZATION. Licensee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio. Licensee has
the corporate power to own or lease its properties and assets and to carry on
its business as now conducted.
7.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Licensee has the right, power
and authority to enter into this Agreement and to perform all of its obligations
hereunder. This Agreement has been authorized by all necessary corporate action
of, has been duly executed and delivered by, and constitutes the valid and
binding obligation of, Licensee, enforceable in accordance with its terms.
7.3 NO CONFLICTS; NO CONSENTS. The execution, delivery and performance
of this Agreement will not result in a breach in the terms or conditions of, or
constitute a default under, or violate, or conflict with, or require, as the
case may be: (i) any provision of any law, regulation or ordinance, (ii) the
Certificate of Incorporation or Bylaws of Licensee, (iii) any agreement, lease,
mortgage or other instrument or undertaking, oral or written, to which Licensee
is a party or by which it or any of its properties or assets is or may be bound
or affected, (iv) any judgment, order, writ, injunction or decree of any
governmental authority, or (v) any action of or by, or filing with, any
governmental authority. The execution and delivery of this Agreement do not, and
except for any approvals, permits and licenses required to market the PAPNET@
Service in the Licensed Territory, the performance of this Agreement will not,
require any action, consent or approval of any person, entity or governmental
authority.
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7.4 LITIGATION. There is no pending or, to the knowledge of Licensee,
threatened legal, administrative, arbitration or other proceeding or
governmental investigation which is likely to have a material adverse effect on
Licensee or the performance by Licensee of its obligations under this Agreement.
8. LIMITATIONS ON WARRANTIES AND LIABILITY.
8.1 NO WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER NSI NOR
LICENSEE MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PAPNET(R)
SYSTEM OR THE PAPNET(R) SERVICE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
OR THAT THE PAPNET(R) SYSTEM OR THE PAPNET(R) SERVICE AS DEVELOPED AND DESIGNED
WILL MEET ANY REQUIREMENTS OF OR WILL PERFORM ERROR FREE OR IN CONFORMANCE WITH
THE NEEDS OR REQUIREMENTS OF LICENSEE OR ANY CLIENT.
8.2 INSURANCE COVERAGE. NSI agrees to obtain and maintain insurance
coverage as is appropriate to cover any claims arising out of any injury to
person or property resulting from use of the PAPNET(R) System, the PAPNET(R)
Service, or other NSI Technology. NSI shall maintain coverage in the amount of
$1,000,000 per claim and $5,000,000 in the aggregate. NSI agrees to name
Licensee as an additional insured under the terms of the insurance policy or
policies and to provide a copy of the insurance policy or policies to Licensee.
9. OWNERSHIP AND INTELLECTUAL PROPERTY PROTECTION.
9.1 OWNERSHIP OF PAPNET(R) SYSTEM. Licensee acknowledges and agrees
that NSI is the sole and exclusive owner of the Intellectual Property embodied
in the PAPNET(R) System, all information, materials, clinical and test data
reports and filings produced in connection any required regulatory approvals,
permits and licenses, and all information reports, specifications, source code,
object code, documentation, diagrams, flow charts and any other tangible or
intangible materials of any type whatsoever relating to the PAPNET(R) System and
derived or produced by or on behalf of NSI (collectively, the "Proprietary
Materials"). No provision contained in this Agreement shall be construed to
transfer to Licensee any title or ownership interest in the Proprietary
Materials or any Intellectual Property embodied in the PAPNET(R) System or the
PAPNET(R) Service.
9.2 SCOPE OF USE. Licensee shall not, and shall not knowingly assist
any third party to, (a) modify or alter, create or attempt to create, by reverse
engineering or otherwise, translate or decompile, translate or transfer, or
otherwise attempt to derive the source code, structure or algorithms of, the
PAPNET(R) System or any part thereof, (b) use or adapt the PAPNET(R) System or
any part thereof in any way, otherwise than in connection with the marketing or
sale of the PAPNET(R) Service, (c) use the PAPNET(R) System or any part thereof
to create a derivative work of the PAPNET(R) System or (d) rent, lease or
otherwise provide temporary access to the PAPNET(R)
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System or any part thereof, except as incidental to marketing and sales
activities otherwise permitted under this Agreement.
9.3 CONTROL OF INTELLECTUAL PROPERTY PROTECTION. NSI shall at all times
retain the sole and exclusive right to pursue, secure, maintain, protect and
enforce its Intellectual Property rights in and to, or arising out of or related
to, the PAPNET(R) System or the PAPNET(R) Service.
9.4 PAPNET(R) SYSTEM NAME. NSI shall have the right in its sole
discretion to select and include any trademark or trade name to identify the
PAPNET(R) System, provided that Licensee will have only the same rights with
respect to any such trademark or trade name as it does to other trademarks and
trade names of NSI hereunder.
9.5 PROTECTION OF INTELLECTUAL PROPERTY. Licensee shall use its
reasonable efforts to protect and maintain the protection of the Intellectual
Property, as the same may be modified, upgraded or enhanced from time to time.
Upon NSI's request, Licensee shall, at NSI's sole cost and expense, assist NSI
in securing, maintaining and enforcing NSI's Intellectual Property rights in and
to the PAPNET(R) System or the PAPNET(R) Service, including, but not limited to,
undertaking any and all necessary and appropriate actions in accordance with
NSI's requests,
9.6 NOTICE OF INFRINGEMENT. Licensee shall promptly notify NSI of any
infringement of any Intellectual Property right of NSI with respect to the
PAPNET(R) System or the PAPNET(R) Service which is known to Licensee. Upon
reasonable notice of infringement, NSI shall have the right, but not the
obligation, to bring any suit or action for infringement of its Intellectual
Property at its own expense. Licensee shall, if requested by NSI, actively
assist in the prosecution of such action. All costs for such assistance shall be
paid by NSI.
9.7 INFRINGEMENT. If, as a result of any claim of infringement,
Licensee or NSI is permanently enjoined from selling the PAPNET(R) Service or
using the PAPNET(R) System, as the case may be, by a final, nonappealable decree
of a court of competent jurisdiction, NSI shall, if possible, replace or modify
the PAPNET(R) System or PAPNET(R) Service so that the PAPNET(R) Service or
PAPNET(R) System is noninfringing, or procure for Licensee the right to continue
to sell the PAPNET(R) Service or use the PAPNET(R) System that is subject to
such decree. In the event that Licensee or NSI is either preliminarily or
permanently enjoined from marketing and distributing the PAPNET(R) Service in
the Licensed Territory, but NSI is legally free to offer the PAPNET(R) Service
in other parts of the United States or the world, then Licensee shall continue
to be entitled for the period it is so enjoined during the Term of this
Agreement to Royalties as provided in Section 3.1(b) of this Agreement. Except
for the indemnification provided in Section 10.1(ii), the foregoing states the
entire liability of Licensee or NSI, as the case may be, to the other with
respect to infringement of any proprietary rights of any third party, and
Licensee and NSI hereby expressly waive any other such liabilities that each may
have against the other and its directors, officers, employees, agents,
representatives and affiliates.
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10. INDEMNIFICATION.
10.1 INDEMNIFICATION BY NSI. NSI shall, at its sole cost and expense,
indemnify and hold Licensee and its directors, officers, employees, agents,
representatives and affiliates harmless with respect to any liabilities,
damages, losses, costs and expenses, including reasonable attorney's fees (any
or all of the foregoing being hereinafter referred to as a "Loss"), insofar as
such Loss arises out of or is based upon (i) a misrepresentation or breach (or
alleged misrepresentation or breach) by NSI of its warranties, covenants and
agreements contained herein, (ii) a claim that the PAPNET(R) System, the
PAPNET(R) Service, the Intellectual Property, the Patents, or the NSI Technology
licensed hereunder, as used within the scope of this Agreement, infringes or
violates any proprietary rights of any third party; or (iii) any injury to
person or property resulting from use of the PAPNET(R) System, the PAPNET(R)
Service, or other NSI Technology, except to the extent that such injury is
proximately caused by the gross negligence or intentional misconduct of Licensee
or Licensee's employees.
10.2 INDEMNIFICATION BY LICENSEE. Licensee shall, at its sole cost and
expense, indemnify and hold NSI and its directors, officers, employees, agents,
representatives and affiliates harmless with respect to any liabilities,
damages, losses, costs and expenses, including reasonable attorney's fees (any
or all of the foregoing being hereinafter referred to as a "Loss"), insofar as
such Loss arises out of or is based upon a misrepresentation or breach (or
alleged misrepresentation or breach) by the Licensee of its warranties,
covenants and agreements contained herein.
10.3 NOTICE OF CLAIM; DEFENSE. Each person indemnified under Sections
10.1 and 10.2 above (an "Indemnified Person") agrees that, upon the service of a
summons or other initial legal process upon the Indemnified Person in any action
or proceeding, or upon the Indemnified Person's receipt of written notification
of the commencement of any investigation, inquiry, or proceeding in respect of
which indemnity may be sought by the Indemnified Person under Section 10.1 or
10.2 above, the Indemnified Person will promptly give written notice (the
"Notice") of such service or notification to the party from whom indemnification
may be sought hereunder (the "Indemnifying Party"). No indemnification provided
for in Section 10.1 or 10.2 above shall be available to any Indemnified Person
who shall fail so to give the Notice, if the Indemnifying Party to whom such
Notice was not given was unaware of the action, suit, investigation, inquiry or
proceeding to which the Notice would have related, to the extent the
Indemnifying Party was prejudiced by the failure to give the Notice; but the
omission so to notify such Indemnifying Party of any such service or
notification shall not relieve such Indemnifying Party from any liability which
it may have to any Indemnified Person for contribution or otherwise than on
account of such Sections. An Indemnifying Party shall be entitled at its own
expense to participate in the defense of any action, suit or proceeding against,
or investigation or inquiry of, an Indemnified Person. An Indemnifying Party
shall be entitled, if it so elects within a reasonable amount of time after
receipt of the Notice, by giving written notice (herein called the "Notice of
Defense") to all Indemnified Persons, to assume the entire defense of such
action, suit, investigation, inquiry or proceeding, in which event such defense
shall be conducted, at the expense of the Indemnifying Party, by counsel chosen
by the Indemnifying Party reasonably satisfactory to the Indemnified Persons;
provided, however, that (i) if any Indemnified Person reasonably determines that
there may be a conflict between the positions of the Indemnifying Party and of
such Indemnified Person in conducting the defense of such action,
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suit, investigation, inquiry or proceeding or that there may be legal defenses
available to such Indemnified Person different from or in addition to those
available to the Indemnifying Party, then counsel for the Indemnified Person
shall be entitled to conduct the defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the Indemnified Person
and (ii) in any event, the Indemnified Person shall be entitled to have counsel
chosen by such Indemnified Person participate in, but not conduct, the defense.
If, within a reasonable time after receipt of the Notice, an Indemnifying Party
gives a Notice of Defense and the counsel chosen by the Indemnifying Party is
reasonably satisfactory to the Indemnified Person, the Indemnifying Party will
not be liable under Section 10.1 or 10.2 for any legal or other expenses
subsequently incurred by the Indemnified Person in connection with the defense
of the action, suit, investigation, inquiry or proceeding, except that (A) the
Indemnifying Party shall hear the legal and other expenses incurred in
connection with the conduct of the defense as referred to in clause (i) of the
proviso to the preceding sentence and (B) the Indemnifying Party shall bear such
other expenses as it has authorized to be incurred by the Indemnified Person.
If, within a reasonable time after receipt of the Notice, no Notice of Defense
has been given, the Indemnifying Party shall be responsible for any legal or
other expenses incurred by the Indemnified Persons in connection with the
defense of the action, suit, investigation, inquiry or proceeding. No
Indemnifying Party will, without the prior written consent of an Indemnified
Person, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder unless such settlement, compromise or
consent includes an unconditional release of such Indemnified Person and each
controlling person thereof from all liability arising out of such claim, action,
suit or proceeding.
11. CONFIDENTIALITY.
During the Term of this Agreement and thereafter, each of NSI and
Licensee shall keep strictly confidential all information of the other which is
secret and proprietary. The parties shall not reveal or disclose the same to any
person or entity without the prior written consent of the other party; provided,
however, that either party may disclose such information pursuant to a subpoena,
order, statute, rule or other legal requirement promulgated or imposed by a
court or by a judicial, regulatory or legislative body or agency in which such
party is involved; and provided, further, that either party may disclose to the
extent its counsel determines in good faith that such disclosure is necessary to
comply with applicable securities laws. In the event that either party discloses
such confidential information in accordance with the previous sentence, such
party shall immediately notify the other party.
12. TERM AND TERMINATION.
(a) The initial Term of this Agreement shall continue from the date
hereof until December 31, 2025. The Term of this Agreement may be extended by
the Licensee for an additional twenty (20) year Term upon written notice to NSI
within six (6) months preceding the expiration of the initial Term, and the
payment to NSI of a renewal fee equal to the net present value of twenty (20)
years of annual Royalties at the average monthly rate payable in the twelve
months immediately
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preceding the date of the notice, determined by using a discount rate equal to
the prevailing prime rate on the date of the notice, as published in the Wall
Street Journal.
(b) This Agreement may not be terminated or cancelled except upon the
expiration of its initial or additional Term other than by written agreement of
the parties.
(c) Upon termination of this Agreement (i) Licensee shall, at its
expense, return to NSI any of NSI's marketing literature, packaging or
Confidential Information and all copies thereof in its possession and certify in
writing that the same have been returned and deliver to NSI all information as
is necessary and useful for NSI to market the PAPNET(R) Service, including,
without limitation, information in possession of Licensee relating to Clients,
(ii) Licensee shall immediately cease representing itself as authorized to sell
NSI products and services, and (iii) the parties shall otherwise cooperate in
order to effect an orderly termination.
13. ARBITRATION.
Except as otherwise provided herein, the parties hereto agree that the
sole and exclusive remedy for any dispute between the parties arising out of or
relating to this Agreement shall be resolved by arbitration conducted in the
City of Columbus, Ohio in accordance with the Commercial Arbitration Rules then
obtaining of the American Arbitration Association, except that the arbitrators
shall have no power to alter or modify any express provision of this Agreement,
or to render any award which by its terms effects any such alteration or
modification. Judgment upon the award rendered may be entered by any court
having jurisdiction in the State of Ohio. If any action or proceeding is brought
to enforce the decision of the arbitrators, the prevailing party shall be
entitled to recover its reasonable attorney's fees and other costs incident to
such action or proceeding. The provisions of this Article 13 shall not affect
the right of any party to seek provisional legal or equitable remedies. The law
of Ohio shall be applied to any dispute under arbitration. The parties warrant
arid represent that the filing of an arbitration demand will not prevent, allow,
or excuse the parties from meeting their obligations under this Agreement during
the time any such dispute is being resolved. Day to day business functions will
continue uninterrupted during the arbitration period.
14. MISCELLANEOUS.
14.1 RULES OF CONSTRUCTION.
(a) As used in this Agreement, neutral pronouns and any variations
thereof shall be deemed to include the feminine and masculine and all terms used
in the singular shall be deemed to include the plural, and vice versa, as the
context may require. The words "hereof', "herein" and "hereunder" and other
words of similar import refer to this Agreement as a whole, including the
Annexes hereto, as the same may from time to time be amended or supplemented,
and not to any subdivisions contained in this Agreement. The word "including"
when used herein is not intended to be exclusive and means "including, without
limitation." References herein to "dollars," "United
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States $" and "$" are to United States dollars. References herein to Article,
Section, subsection or Exhibit shall refer to the appropriate Article, Section,
subsection or Exhibit in or to this Agreement.
(b) The following guiding and primary rules of construction
shall be applied to this Agreement and to any dispute hereunder:
(i) that the terms of this Agreement will be
construed against termination of this Agreement or forfeiture of any
right hereunder;
(ii) that the terms of this Agreement will be
construed in favor of providing Licensee the opportunity to maximize
the economic benefits available hereunder from the promotion of the
PAPNET(R) System, the PAPNET(R) Service and the NSI Technology in the
Licensed Territory, and to realize its proportionate share under
Section 3.1(b) hereof of the worldwide market for the PAPNET(R) System,
the PAPNET(R) Service and the NSI Technology;
(iii) that each term of this Agreement will be
construed, wherever reasonable, in a manner consistent with the
understanding of the term by the parties as manifested by their
established course of dealing; and
(iv) that each term of this Agreement imposes on the
parties an obligation of good faith and fair dealing in its performance
and enforcement.
14.2 NO ADVERSE ACTIONS. Licensee agrees to take no action that could
materially adversely affect the business, operations or prospects of NSI. NSI
agrees to take no action that could materially adversely affect the business,
operations or prospects of Licensee.
14.3 INDEPENDENT CONTRACTORS. It is expressly agreed that the parties
hereto are acting hereunder as independent contractors and not as joint
venturers, and under no circumstances shall any of the employees of one party be
deemed the employees of the other for any purpose. This Agreement shall not be
construed as authority for either party to act for the other party in any agency
or other capacity, or to make commitments of any kind for the account of or on
behalf of the other except to the extent and for the purposes expressly provided
for and set forth herein.
14.4 ASSIGNMENT; SUBLICENSING. This Agreement and the licenses herein
granted are not assignable by either party (nor are the licenses sublicensable
by Licensee) without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that Licensee may assign
this Agreement to any corporation which is a wholly-owned subsidiary of Licensee
without such consent. Neither party may pledge or otherwise grant a security
interest in this Agreement or the licenses granted hereby, but may grant a
security interest in any payments to which it is entitled hereunder. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
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14.5 WAIVER; REMEDIES. No failure on the part of any party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
14.6 SEVERABILITY. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part
or provision of this Agreement.
14.7 CHOICE OF LAW. This Agreement and the performance hereof shall be
governed by and construed in accordance with the laws of the State of Ohio
(without giving effect to principles of conflicts of laws).
14.8 NOTICE. All notices, invoices, consents or other communications
required or permitted to be given by either party to the other shall be in
writing (including facsimile or similar writing) and shall be given by
facsimile, Federal Express or similar courier service, or by certified or
registered mail, postage prepaid as follows:
(a) If to NSI:
Neuromedical Systems, Inc.
10 Mountain View Road, Suite C-100
Upper Saddle River, New Jersey 07458-1933
Attn.: Paul R. Sohmer, M. D.
President
Facsimile: (201) 760-2096
With a copy to:
Wuersch & Gering LLP
Attention: Travis L. Gering
330 Madison Avenue - 14th Floor
New York, NY 10017
Facsimile: (212) 856-0829
(b) If to Licensee:
NetMed, Inc.
6189 Memorial Drive
Dublin, OH 43017
Attn.: David J. Richards
Facsimile: (614) 793-9376
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With a copy to:
Porter, Wright, Morris & Arthur
Attn: William J. Kelly, Jr.
2800 Huntington Center
41 South High Street
Columbus, OH 43215
Facsimile: (614) 227-2100
or at such other address or facsimile number (or other similar number) as any
party may from time to time specify to the other party hereto. Any notice,
consent or other communication required or permitted to be given hereunder shall
be deemed to have been given on the date of mailing, personal delivery or
facsimile (provided the appropriate answer back is received) thereof and shall
be conclusively presumed to have been received on the second business day
following the date of mailing or, in case of personal delivery, the actual day
of personal delivery thereof, or, in the case of facsimile delivery, when such
facsimile is transmitted, except that a change of address shall not be effective
until actually received.
14.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
previous proposals, both oral and written, negotiations, representations,
commitments, writings and all other communications between the parties with
respect to such subject matter. It may not be released, discharged, changed or
modified except by an instrument in writing signed by a duly authorized
representative of each of the parties. Notwithstanding the foregoing, this
Agreement shall be subject to the side letter between the parties hereto dated
as of even date herewith,
14.10 HEADINGS. The headings used in this Agreement are for reference
purposes only and shall not be construed to limit or further define any term or
provisions hereof.
14.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
a duly authorized representative as of the date first written above.
NEUROMEDICAL SYSTEMS, INC.
By: /s/Paul R. Sohmer
------------------------------------
Paul R. Sohmer, M.D.
President
NETMED, INC.
By: /s/David J. Richards
------------------------------------
David J. Richards
President
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