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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-KSB/A2
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 1997
TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to _______
Commission file number 0-26972
SWISSRAY INTERNATIONAL, INC.
(Name of Small Business Issuer in Its Charter)
New York 16-0950197
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
200 East 32nd Street, Suite 34-B, New York, New York 10016
(Address of Principal Executive Office) (Zip Code)
United States - 212-545-0095 Switzerland - 011 41 41 919 90 50
(Issuer's Telephone Number, Including Area Code)
Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, par value $.01 per share
(Title of Class)
Check whether the issuer; (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for past 90 days.
Yes xx No
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [ ]
State issuer's revenues for its most recent fiscal year - $13,151,701
The number of shares outstanding of each of the Registrant's classes of Common
Stock, as of November 25, 1997 is 27,114,903 shares, all of one class of common
stock, $.01 par value. Of this number a total of 22,632,313 shares having an
aggregate market value of $50,243,734.86, based on the closing price of the
Registrant's common stock of $2.22 on November 25, 1997 as quoted on the NASDAQ
SmallCap market, were held by non-affiliates* of the Registrant.
* Affiliates for the purpose of this item refers to the Registrant's officers
and directors and/or any persons or firms (excluding those brokerage firms
and/or clearing houses and/or depository companies holding Registrant's
securities as record holders only for their respective clienteles' beneficial
interest) owning 5% or more of the Registrant's Common Stock, both of record and
beneficially.
ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PAST FIVE YEARS
Check whether the issuer has filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by a court.
Yes No
Not Applicable
APPLICABLE ONLY TO CORPORATE REGISTRANTS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: 27,114,903 shares as of November
25, 1997.
Transitional Small Business Disclosure Format: Yes No [x]
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DOCUMENTS INCORPORATED BY REFERENCE
If the following documents are incorporated by reference, briefly describe them
and identify the part of the Form 10-KSB (e.g., Part I, Part II, etc.) into
which the document is incorporated: (1) any annual report to security-holders;
(2) any proxy or information statement; and (3) any prospectus filed pursuant to
Rule 424(b) or (c) of the Securities Act of 1933 ("Securities Act").
Part III of this Amendment includes revised Exhibits 10.4 and 10.5.
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SIGNATURES
In accordance with Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), the registrant caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
SWISSRAY INTERNATIONAL, INC.
By: / Ruedi G. Laupper /
--------------------
Ruedi G. Laupper, Chairman of the Board of
Directors, President & Chief Executive
Officer
Date: December 3, 1997
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of the Registrant and in the capacities and
on the dates indicated.
<TABLE>
<S> <C> <C>
/ Ruedi G. Laupper / Chairman of the Board of Dated: December 3, 1997
- -------------------- Directors, President & Chief
Ruedi G. Laupper Executive Officer
/ Josef Laupper / Secretary-Treasurer and a Director Dated: December 3, 1997
- -----------------
Josef Laupper
/ Herbert Laubscher / Chief Financial Officer Dated: December 3, 1997
- ---------------------
Herbert Laubscher
/ Ueli Laupper / Vice President and a Director Dated: December 3, 1997
- ----------------
Ueli Laupper
/ Dr. Erwin Zimmerli / Director Dated: December 3, 1997
- ----------------------
Dr. Erwin Zimmerli
</TABLE>
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EXHIBIT 10.4
LICENSE AGREEMENT
PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED (DESIGNATED BY AN ASTERISK (*) AND
WHITE SPACE) AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT DATED SEPTEMBER 29, 1997.
This agreement is made as of July 18, 1997, by and between
Swissray International Inc., New York, with European Center at Industriestrasse
6, CH-6285 Hitzkirch, Switzerland hereafter referred to as "Swissray"), and
Agfa-Gevaert N.V., Septestraat 27, B-2640 Mortsel, Belgium hereafter referred to
as "Agfa").
WHEREAS, Afga owns a computer program for enhancing the image
quality of digital radiographic images,
WHEREAS, Swissray wishes to license the above-mentioned
computer program for use in combination with its digital radiographic image
acquisition system, known as Digital Add-On Bucky,
WHEREAS, Agfa is willing to grant such license to Swissray on
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the mutual covenants and
premises set forth hereinafter, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "AGFA SOFTWARE" shall mean the software program in
executable code as described in Exhibit A hereto.
1.2 "PRODUCT" shall mean the image acquisition system for
acquiring a digital image representation of a radiographic image developed and
marked by Swissray, and designated by the name "Digital Add-On Bucky".
1.3 "INFORMATION" shall mean any information in relation with
the AGFA SOFTWARE transferred by Agfa to Swissray during the term of the
agreement, including information in relation with the AGFA SOFTWARE transferred
during technical support. INFORMATION that Swissray can establish by its written
records was in its possession at the time it was first disclosed by Agfa to
Swissray, was in the public domain at the time it was disclosed by Agfa to
Swissray or is obtained by Swissray from a third party, who has same in good
faith and has the right to pass it on to Swissray, is excluded.
1.4 "EFFECTIVE DATE" shall mean the date of the last of the
parties to sign the agreement.
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ARTICLE 2
LICENSE/DELIVERY
2.1 Agfa hereby grants to Swissray a worldwide, non-exclusive,
non-transferable license, during the term of this agreement to use and
distribute the AGFA SOFTWARE in combination with the PRODUCT.
2.2 Swissray shall not have the right to make any
modifications to the AGFA SOFTWARE except as required for its adaption to the
PRODUCT.
2.3 Swissray shall not have any right to sublicense such
rights to a third party other than an end user of the product.
2.4 No rights or obligations of Swissray out of this Agreement
shall be transferable without prior written consent of Agfa. The same applies in
the case of universal legal succession or acquisition of the share capital of
Swissray by third parties.
2.5 Agfa agrees to deliver the AGFA SOFTWARE within 6 weeks
after the EFFECTIVE DATE.
ARTICLE 3
PROPRIETARY RIGHTS
3.1 Swissray acknowledges that Agfa is and remains the sole
and exclusive owner of all rights, title and interest, including all trademarks,
copyrights, patents, trade names, trade secret and other intellectual property
rights to the AGFA SOFTWARE. Except for the rights expressly granted herein,
Swissray is not granted any rights to patents, copyright, trade secrets, trade
names, trademarks (whether or not registered) or any other right with respect to
the AGFA SOFTWARE. Swissray agrees not to use Agfa trade names with regard to
the PRODUCT or with regard to the AGFA SOFTWARE used in combination with the
PRODUCT.
3.2 Swissray agrees to treat the AGFA SOFTWARE and any
information disclosed in relation with this agreement as confidential and to use
such information only in accordance with the terms of this agreement. Swissray
agrees to disclose the AGFA SOFTWARE only to authorized employees who has the
need to use them as permitted under this agreement and have agreed to be bound
by the obligation of confidentiality and to take all reasonable measures to
prevent disclosure to other parties, including any affiliate companies.
3.3 Swissray agrees that it will not reverse engineer, reverse
assemble, or dissemble or otherwise attempt to create software which is
derivable from the AGFA SOFTWARE.
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3.4 Neither party shall disclose the existence or the
agreement except pursuant to mutual agreement or as otherwise required by law.
ARTICLE 4
WARRANTY
4.1 The above license is granted on an 'AS IS' basis without
explicit or implied warranty.
4.2 If (a) the AGFA SOFTWARE fails to perform substantially in
accordance with the specifications set forth in Exhibit A hereto during the
period beginning upon delivery of the AGFA SOFTWARE and ending ninety (90) days
thereafter (the "Warranty period"); (b) such failure is reproducible; and (c)
such failure is reported to Agfa during the Warranty period, then Agfa shall, at
its expense, provide a workaround for such failure or, at Agfa's option, provide
Swissray with an updated version of the AGFA SOFTWARE which does not cause such
failure.
This warranty shall apply to a failure for which Swissray
proves that it originates from AGFA SOFTWARE. The warranty shall not apply to
any software by Swissray, or to any failure caused by hardware or software not
provided by Agfa.
4.3 Agfa acknowledges that to the best of its knowledge the
AGFA SOFTWARE does not infringe and intellectual property rights of third
parties. At present no litigation issues are pending in this respect nor the
Agfa received any warning letters or the like.
ARTICLE 5
LIMITATION OF LIABILITY
5.1 The foregoing warranties by Agfa are made only to Swissray
and Swissray shall be solely responsible for any warranty to, to claims by its
end user customers concerning the Software.
5.2 The foregoing states Agfa's sole and exclusive obligation
to Swissray for breach of warranty. Except for the express warranties stated in
this Agreement, Agfa makes no additional warranties, express, implied or
statutory, as to any matter whatsoever. In particular, any and all warranties of
merchantability or fitness for a particular purpose are expressly excluded.
ARTICLE 6
SUPPORT
6.1 Agfa agrees to provide Swissray with support pertaining to
the operation of the AGFA SOFTWARE and the implementation of the AGFA SOFTWARE
in the PRODUCT. The following services fall outside the scope of this agreement:
support concerning
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items excluded from the definition of the AGFA SOFTWARE see exhibit A,
non-recurrent engineering.
6.2 Support shall be provided on request and at the expense of
Swissray within a period of three months after delivery of the AGFA SOFTWARE.
6.3 During this support period Agfa shall provide support
services to a maximum of 15 man day, which may be combined. Support will be
provided by written or telephone consultation or on site at Swissray's premises.
6.4 Support shall be charged at per
hour. Swissray agrees to pay actual travel, board and lodging costs and expenses
reasonably incurred by Agfa.
ARTICLE 7
PAYMENT, REPORTS AND RECORDS
7.1 The parties agree that the following royalty terms shall
apply:
- a fixed royalty of [ * ] shall be payable per
undivisable number of 100 copies of the AGFA SOFTWARE for
use in combination with the PRODUCT.
- a discount rate shall apply for copies in excess of the
first 100 copies.
7.2 Initial payment of [ * ] for the first 100 copies of
the AGFA SOFTWARE shall be executed in three installments as follows:
a) [ * ] to be paid upon delivery of the AGFA SOFTWARE,
b) [ * ] to be paid within 3 months from the date of
delivery,
c) [ * ] to be paid within 6 months from the date of
delivery.
7.3 The royalties for each further undivisable set of 100
copies of the AGFA SOFTWARE in excess of the first set of 100 copies, shall be
the following:
[ * ] for each further set of 100 copies (copies greater
than 100)
Payment for each further set of 100 copies shall be executed as
follows:
[ * ] to be paid upon delivery of a further set,
[ * ] to be paid within 3 months from the date of delivery,
[ * ] to be paid within 6 months from the date of delivery.
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7.4 All payment to Agfa provided herein shall be made in DEM
by transfer to an account of Agfa to be designated in writing.
7.5 Swissray shall, during the continuance of this agreement,
maintain a full and accurate record of the number of PRODUCTs provided with the
AGFA SOFTWARE in such terms to enable Agfa to ascertain what royalties are due
under this agreement.
7.6 So as to permit verification, Swissray shall permit such
records to be examined by an independent certified public accountant selected by
Agfa on reasonable advance notice, during normal business hours at reasonable
intervals no more frequently than once per year.
7.7 All costs and expenses for such an audit shall be borne by
Agfa, except in those cases, in which the examining accountant ascertains a
discrepancy of more than five percent during the audited period to the
disadvantage of Agfa between payments actually made and payments due, in which
case Swissray shall bear all costs and expenses for such audit.
ARTICLE 8
TERM OF THE AGREEMENT
8.1 The term of this agreement is 2 years from the EFFECTIVE
DATE, unless earlier terminated as provided in this Agreement.
ARTICLE 9
TERMINATION
9.1 If any material breach of this agreement by the defaulting
party continues after 30 days written notice of said breach by the aggrieved
party, the aggrieved party may terminate the agreement on written notice to the
defaulting party.
9.2 In addition to any breach of this Agreement, the
application for, or adjudication in bankruptcy by Swissray, or the dissolution
of Swissray shall terminate this agreement.
9.3 Upon termination or expiration of this Agreement, Swissray
shall continue to be responsible for the confidentiality of the INFORMATION and
the proprietary rights of Agfa. End users shall be permitted the continued and
uninterrupted use of the AGFA SOFTWARE.
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ARTICLE 10
MISCELLANEOUS
10.1 This agreement shall be governed by the laws of France.
Any conflicts arising out of this Agreement shall be brought before the courts
of Paris.
10.2 Notices, statements, or other communications required or
permitted by the present agreement shall be in writing and sent by airmail or
telefax to the parties at their respective addresses set forth below:
In case of Swissray to Swissray International Inc.
European Center
Dr. Riedel
Industriestrasse 6
CH - 6285 Hitzkirch
In case of Agfa to
- for commercial and technical matters: Agfa-Gevaert N.V.
Medical Division
Telefax: 00 32 3 444 74 95
- for legal matters: Dienst Intellectuele Eigendom
Telefax: 00 32 3 444 74 98
Agfa-Gevaert N.V.
Septestraat 27
B - 2640 Mortsel
Belgium
10.3 Nothing contained herein shall be construed as creating
an agency, partnership or other form of joint enterprise between the parties.
10.4 The following Exhibits are attached to and made a part of
this Agreement: Exhibit A.
10.5 The present Agreement including all Exhibits attached
hereto constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties or any official or representative thereof, with respect to said
subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused the present
instrument to be signed in duplicate, by their duly authorized representatives,
all as of the day and year first above written, each party mentioned at the
beginning of the present Agreement obtaining a signed copy.
Agfa-Gevaert N.A., Mortsel, , 1997
Patrick Theunis C.P. Vermuelen
General Manager General Manager
Information & Intellectual MED-Division
Property Department
SWISSRAY INTERNATIONAL INC., New York
European Center
Industriestr 6, 6285 Hitzkirch/Switzerland
Ruedi G. Laupper
President & Chairman CEO
Dr. Med. Felix Riedel
Vice President
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EXHIBIT 10.5
PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED (DESIGNATED BY AN ASTERISK (*) AND
WHITE SPACE) AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT DATED SEPTEMBER 29, 1997.
Contract for the development, supply of samples and series delivery of an
optical imaging system for a digital Bucky
between
Teleray AG
Industriestrasse 6
6285 Hitzkirch
Switzerland
- - hereinbelow referred to as "Teleray"
and
OPTISCHE WERKE G. RODENSTOCK
Precision Optics Division
Isartalstr. 43
80459 Munich
- - hereinbelow referred to as "Rodenstock"
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Preamble
Teleray requires special optics for a digital AddOn Bucky(R) in the medical
X-ray sector. The digital AddOn Bucky(R) is an X-ray picture system, which
enables X-ray pictures to be recorded directly on the examination site. This
dispenses with the need for films or memory foils which require additional
processing steps.
Rodenstock has experience in the development and construction of special optics
for various applications and will develop, supply samples and arrange series
manufacture of these imaging optics for Teleray.
Teleray and Rodenstock hereby agree as follows:
1. Definition
The term CONTRACTUAL DEVICE refers to the imaging optics for a digital AddOn
Bucky(R) specified in Annex 1 to this contract. The specifications may be
amended by joint agreement during the development phase as described in section
5.
2. Description of the device to be developed
Rodenstock shall develop the CONTRACTUAL DEVICE for exclusive use by Teleray in
compliance with the specifications. The development work shall be performed in
line with the milestones specified in section 3 and the performance dates stated
therein.
3. Milestones, performance dates
3.1 Development
Use of the optical concept defined in the feasibility study commissioned on
20.04.1995 (Teleray order No. EW 950014 = Rodenstock order No. 321/00809371) and
subsequently implemented and developed ready for series production.
Work:
- - development of an optical system in compliance with the specifications
- - optical and mechanical design
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- - definition of a low-cost assembly technology
- - project management
Delivery date:
2 months after receipt of order - see 3.4
Completion:
Clearance for sample production by Teleray.
Within two weeks of notification by Rodenstock of completion of the development
work by drawings and quality presentations, Teleray shall give written
authorization for sample production. Late authorization of sample production by
Teleray shall have the following consequences:
a) Teleray shall accept responsibility for any extra costs incurred which
must be proved by Rodenstock;
b) Teleray shall accept the resulting late performance date.
3.2 Sample manufacture
Manufacture of 12 sample lenses in compliance with the specification.
Work:
- - manufacture of the mechanical and optical components
- - assembly of the optical and mechanical components
- - quality testing in compliance with the specifications
- - environmental testing
- - documentation of the characteristics as determined
- - delivery of twelve specimen pieces as per the specifications.
Delivery lead time:
3 months after authorization and placing of the order for sample production by
Teleray. Rodenstock shall endeavour to respect Teleray's exceptionally tight
delivery requirement and to effect delivery in September 95, but cannot
guarantee compliance with this target see 3.4.
Completion:
Delivery of 12 sample lenses.
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Within four weeks of delivery by Rodenstock of the samples and after their
imaging quality has been demonstrated to comply with the specification, Teleray
shall give written authorization for series manufacture. The costs resulting
from late authorization of series manufacture, which must be proved by
Rodenstock, shall be borne by Teleray. Teleray shall likewise accept the
resulting late commencement of series manufacture.
3.3 Readiness for series manufacture
Work:
- - Implementation of experience gained with sample production
- - Preparation of a set of series drawings
- - Manufacturing plans for optics, mechanicals and assembly
- - Development of assembly techniques
- - Development and production of special tooling etc. for manufacture and
assembly.
Delivery lead time:
- - 2 months after acceptance of the samples - see 3.4.
Completion:
Handover of the assembly drawing ready for series production. Written
authorization of series manufacture to be given by Teleray.
3.4 Shortening of the dates specified in 3.1 to 3.3
By simultaneous commissioning (Teleray order No. B 9501 of 17.05.1995 Rodenstock
order No. 321/0081001) of the performance packages described in 3.1, 3.2 and
3.3, Rodenstock shall endeavour to economize the period of 2 months (see 3.3 =
readiness for series production) by working in parallel in such a way that items
3.1 to 3.3 can be completed towards the end of September 1995.
3.5 Series deliveries
Delivery lead time:
6 months after written authorization of series manufacture and special tooling.
A maximum number of 60 lenses shall be available in advance on request within
four months of written authorization of series manufacture.
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4. Price
4.1 Teleray shall pay non-recurring proportionate development costs for
the development of the contractual device as follows: [ * ] net
Payable on reaching the following milestones:
a) 35%=[ * ] when the order for sec. 3.1 is placed
b) 35%=[ * ] when half the order period has elapsed = 25.07.95
c) 30%=[ * ] on sample delivery = 29.09.95
4.2 Teleray shall make the following payment for 12 samples of the
contractual devices: [ * ] net/each
Payable on reaching the following milestones
a) 35%=[ * ] when the order for sec. 3.2 is placed
b) 35%=[ * ] when half the order period has elapsed = 25.07.95
c) 30%=[ * ] on sample delivery 29.05.95
4.3 Teleray shall pay Rodenstock a proportion of the costs of preparation
for series production and special tooling in the amount of [ * ]
payable as follows:
a) 35%=[ * ] when the order for sec. 3.3 is placed
b) 35%=[ * ] when half the order period has elapsed=25.07.95
c) 30%=[ * ] on sample delivery = 29.09.95.
4.4 For the tested CONTRACTUAL DEVICE, Teleray shall make the following
payments assuming annual delivery volumes of
200 pieces p.a. [ * ] each
600 pieces p.a. [ * ] each
800 pieces p.a. [ * ] each
When a zero series of max. 60 contractual devices pursuant to Section 3.5 is
ordered, the following price shall apply:
60 pieces [ * ] each
All prices are quoted strictly net, with no deductions, plus packaging and
insurance for transport.
Before ordering series deliveries as stipulated in section 3.5, Teleray must
put up sureties in the form of a bank guarantee representing 75% of the order
value in favour of Rodenstock, the equivalent surety for the zero series
[ * ] shall be 100%.
Any adjustment of the series price for further series deliveries, or in the
event of later commencement of series deliveries, shall be governed by the
following price indexing clause:
Prices calculated in advance and confirmed by recalculation - and possibly
corrected may undergo a maximum increase in subsequent costing periods, starting
from 01.01.97, equivalent to:
a) the effective increases (in wages and salaries) negotiated by the
contracting parties (IGM and Association of the Bavarian Metalworking Industry)
less
b) an average rationalization effect of 1 per cent
plus/minus
c) material price changes
The cost factors are: manufacturing costs: 90%
material costs: 10%
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4.5 All series deliveries shall be payable at 14 days of the date of the
invoice, net.
5. Modifications
If Teleray wishes modifications or additions to be made to the object of the
development work or specifications, Rodenstock shall ascertain whether these
modifications or additions are feasible and shall determine the extent to which
they will influence development costs and/or the performance calendar. They will
be included in the contract and specifications without amendment to the prices
and delivery lead times, if they are feasible according to the state of the art
and have no influence on development costs and the performance calendar.
If the desired modifications or additions prove impossible to implement, the two
parties may withdraw from the contract. Rodenstock shall still be entitled to
full payment, but must allow the expenditure that has been saved to be offset.
Where modifications or additions which have a significant impact on the
expenditure and/or performance timetable prove to be feasible, Rodenstock shall
submit a supplementary offer. If no agreement on that supplementary offer can be
reached within four weeks, the two parties may withdraw from the contract. In
the event of such withdrawal, Rodenstock shall still be entitled to full payment
but must allow the expenditure that has been saved to be offset.
6. Confidentiality
In respect of confidentiality, it is hereby agreed that the two parties shall
refrain from disclosing the documents, technical experience and know-how made
available to them by the other party for the performance of this contract. Said
confidentiality shall not apply to facts which correspond to the state of the
art, are in the public domain or generally known or become so known, or which
the disclosing party has lawfully received from third parties.
7. Scope of delivery
Rodenstock shall effect deliveries in compliance with the milestone plan set out
in section 3:
- - development
- - 12 samples
- - readiness for series manufacture
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- - series manufacture
In addition, the following technical documents shall be made available:
- - drawings with connection dimensions
- - test and verification records
Teleray shall be granted a simple right to use the results of the development.
The necessary know-how for development and manufacture and protected industrial
property rights will not be transferred.
8. Person responsible
Teleray and Rodenstock shall each appoint a responsible project manager. For
Teleray, this is Mr Waegli and for Rodenstock Mr Gotsch.
9. Tools and fixtures
Tools and fixtures shall be invoiced proportionately and shall remain the
property of Rodenstock.
10. Patents
10.1 Inventions made by a member of Rodenstock staff in the performance of
this contract shall be used without limitation by Rodenstock and made known to
Teleray. Notifications of protected property rights shall be made solely in the
name of Rodenstock.
10.2 Rodenstock shall inform Teleray of the countries in which it intends
to seek protected rights for the inventions pursuant to section 10.1. If Teleray
wishes in addition to have an invention of the kind referred to in 10.1
protected in other countries, Rodenstock shall make the application in its own
name. The costs of processing, registration and maintaining such additional
patents shall be borne by Teleray.
10.3 In respect of any inventions made jointly by personnel of Teleray and
Rodenstock, the two companies shall determine, in consultation with the
personnel concerned, the allocation and distribution of the inventors shares
between Teleray and Rodenstock. Rodenstock and Teleray shall, from time to time,
reach separate agreement as to whether, by which of them and in which countries
applications for protected rights are to be made in respect of these inventions.
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10.4 Teleray and Rodenstock shall have a non-exclusive, transferable right to
make use free of charge of protected rights based on inventions referred to in
section 10.3. If the free use of these rights is not justified in a particular
case, Teleray and Rodenstock shall reach agreement on appropriate remuneration.
10.5 The rights granted in section 10.4 shall apply beyond the expiry of this
contract for the duration of the protected rights in each particular case.
11. Respect for the protected rights of third parties
Should it transpire during the development work that the utilization of the
protected rights of third parties is necessary for the successful performance of
the works because the solution to be developed is liable to infringe protected
rights, the contracting parties shall immediately notify each other to that
effect.
The following agreement is hereby reached to avoid jeopardizing the completion
of the project:
a) Teleray shall have sole responsibility for the patent rights and for seeking
any necessary licences for the "Digital AddOn Bucky" system; costs and licence
fees shall be charged to Teleray.
b) Rodenstock shall have sole responsibility for the patent rights and for
seeking any necessary licences for the optical imaging system, regardless or the
particular use or application.
Liability for infringement of the protected rights of third parties is declined.
In particular, claims for compensation on grounds of direct or indirect
prejudice are excluded.
12. Withdrawal
Rodenstock and Teleray shall be entitled to withdraw from the contract as soon
and in so far as it emerges that the contractually agreed services cannot be
provided or can only be provided on conditions which are either unreasonable or
impossible to calculate. In the event of such withdrawal, the payments already
made shall not be refunded but further payments shall lapse.
Claims for compensation shall not be entertained.
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13. Series manufacture
Teleray undertakes, in the event of series delivery of the CONTRACTUAL DEVICE,
to procure this device solely from Rodenstock. In the event of series
deliveries, Teleray undertakes to procure the contractual device solely from
Rodenstock on appropriate price and delivery date terms; "appropriate price" in
this context means that increases must fall within the limits of the price
indexing clause set out in section 4.4 with effect from 01.01.97.
Rodenstock undertakes to supply Teleray with CONTRACTUAL DEVICES after
authorization of manufacture has been given for as long as Teleray so wishes.
Should Rodenstock no longer be able or willing to do so, Rodenstock undertakes
to assist the transition to future manufacture of the CONTRACTUAL DEVICE without
Rodenstock's participation until such time as samples show such future
manufacture to be possible. Should Rodenstock have brought such a situation
about through its own negligence, Teleray shall be entitled to ask Rodenstock to
provide this service without charge.
14. Processing
Save where otherwise specified in this contract, Rodenstock's terms and
conditions of sale (Annex 2) shall apply additionally; this shall likewise be
the case for order processing purposes.
15. Duration of the contract
15.1 This contract shall enter into force on the date when it is signed and
shall end on the expiry of three years after the commencement of series delivery
of CONTRACTUAL DEVICES. It shall be extended by two further years in each case,
save where notice of termination is given at the latest eighteen months before
its expiry date.
15.2 Each contracting party shall be entitled to terminate this agreement with
immediate effect by registered letter if the other contracting party infringes a
significant contractual obligation and if such infringement is not remedied
within sixty days despite a written warning to do so.
16. Validity
Should individual provisions of this agreement be or become legally invalid,
that shall not affect the validity of the other provisions. A provision which is
invalid shall be
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interpreted or supplemented in a manner which enables its intended purpose to be
achieved.
17. Amendments or additions
Amendments or additions to this agreement shall be valid only if they are made
in writing with the consent of both parties.
18. Place of performance, jurisdiction, law
The place of performance shall be the place of delivery in each instance.
The courts at the place where the contracting party against whom proceedings are
taken is situated shall have jurisdiction.
The law of the Federal Republic of Germany shall be deemed to apply to the
exclusion of UN commercial law.
Hitzkirch, Munich, 14 July 1995
TELERAY OPTISCHE WERKE G.RODENSTOCK
/Peter Uwaeghil/ /PPA Oehman/
- ---------------- ------------
Ruedi G. Laupper/ Manfred Schuch/
- ----------------- ---------------
The foregoing is a fair and accurate English translation of the original
contract.
September 29, 1997
SWISSRAY INTERNATIONAL, INC.
By: /s/ Josef Laupper
--------------------
Title: Secretary
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