EX-10.9
License Agreement dated November 24, 1999
185
<PAGE>
EXHIBIT 10.9
LICENSE AGREEMENT
(AXENORL)
THIS LICENSE AGREEMENT ("Agreement") is made this 24`" day of November
1999, by and between NVID International, Inc., a corporation ("Licensor") and
Innovative Medical Services, a California corporation ("Licensee").
WHEREAS, Licensor holds all rights to the product known AXENOHL or the "Licensed
Product"), being patented pending products for the killing of bacterial and
other biological contaminants from a water system as more particularly described
in the attached Exhibit A: PATENT PENDING; and
WHEREAS, Licensor desires to license certain marketing and distribution rights
to the Licensed Products to the Licensee on the terms and conditions set forth
herein.
THEREFORE, Licensor and Licensee agree as follows:
1. Representations And Warranties Of Licensee
As an inducement to, and to obtain the reliance of Licensor, Licensee
represents and warrants as follows:
1.1. Organization, Good Standing, Power, Etc. Licensee (i) is a
corporation duly organized, validly existing and in good standing under the law
of the State of California; (ii) is qualified or authorized to do business as a
foreign corporation and is in good standing in all jurisdictions in which
qualification or authorization may be required; and (iii) has all requisite
corporate power and authority, licenses and permits to own or lease and operate
its properties and carry on its business as presently being conducted and to
execute, deliver and perform this Agreement and consummate the transactions
contemplated hereby.
1.2. Capitalization. The authorized capital stock of Licensee consists
solely of 20,000,000 shares of Common Stock, no par value, (the "Licensee Common
Stock"), of which, on the date hereof 4,562,242 shares are issued and
outstanding and no shares are held in the treasury of Licensee. In addition the
Company has 5,000,000 shares of Preferred Stock authorized, none of which are
presently outstanding. All of such issued and outstanding shares of the Licensee
Common Stock have been duly authorized and validly issued and are fully paid and
non-assessable with no personal liability attaching to the ownership thereof and
were not issued in violation of the preemptive or other rights of any person.
1.3. Authorization of Agreement. This Agreement has been or will
be at Closing duly and validly authorized, executed and delivered by Licensee.
1.4. Compliance with Applicable Laws, The conduct by Licensee of their
business does not violate or infringe on any domestic (federal, state or local)
or foreign law, statute, ordinance or regulation now in effect, or, to the
knowledge of Licensee proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its properties or
assets.
1.5. Exchange Art Filings and Financial Statements. Licensee has filed
all reports required of it with the United States Securities and Exchange
Commission (the SEC) pursuant to Section 12(g) of the Securities Exchange Act of
1934 (the 1934 Act) including without limitation, registration statements,
l0.KSB's, 10QSB's, Form 8's, etc. for each of the annual, quarterly or other
fiscal periods from the first to latest such filings since Licensee first so
registered as a public company.
1.6. Recognition of Licensor Trade Secrets,
1.6.1. Licensee agrees that during the term of this Agreement,
or following its termination and for all times thereafter, it will keep
secret and confidential all Licensor Trade Secrets which it knows or
may hereafter come to blow as a result of the relationship established
by this Agreement. The Licensor Trade Secrets shall not be disclosed by
Licensee to third parties and shall be kept secret and confidential
except (i) to the extent that the same have entered into the public
domain by means other than improper actions by Licensee or (ii) to the
extent that the disclosure thereof may be required pursuant to the
order of any court or other governmental body,
186
<PAGE>
1.6.2. It is understood and recognized by Licensee that in the
event of any violation by Licensee of the provisions of subparagraph
1.6.2 above, Licensor's remedy at law will be inadequate and Licensor
will suffer Irreparable injury. Accordingly, Licensee consents to
injunctive and other appropriate equitable relief upon the institution
of legal proceedings therefor by Licensor in order to protect the
Licensor Trade Secrets. Such relief shall be in addition to any other
relief to which Licensor may be entitled at law or in equity.
1.6.3. Licensee shall cause their employees who shall have
access to Licensor Trade Secrets hereof, to sign appropriate Trade
Secrecy Agreements in the form of Exhibit B annexed hereto and made a
part hereof.
2. Representations And Warranties Of Licensor
As an inducement to, and to obtain the reliance of LICENSEE, LICENSOR
represents and warrants as follows:
2.1. Organization, Good Standing, Power, Etc. Licenser (i.) is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and (ii) has all requisite corporate power and authority, licenses,
permits and franchises to own or lease and operate its properties arid carry on
its business as presently being conducted and to execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby.
2.2. Authorization of Agreement, This Agreement has been or will be
at Closing duly and validly authorized, executed and delivered by Licensor,
2.3. Material Contracts There has not occurred any default by Licensor
or any event which with the lapse of time or the election of ally person other
than Licensor will become a default, except defaults, if any, which will not
result in any material loss to or liability of Licensor.
2.4. Permits, Licenses, Etc. Licenser has all permits, licenses,
orders and approvals of federal, state, local or foreign governmental or
regulatory bodies that are required in order to permit it to carry an their
business as presently conducted.
2.5. Compliance with Applicable Laws. The conduct by Licensor of its
business does not violate or infringe upon any domestic (federal, state or
local) or foreign law, statute, ordinance or regulation now in effect, or, to
the knowledge of Licensor proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its properties or
assets.
2.6. Litigation. There is no material claim, action, suit, proceeding,
arbitration, investigation or inquiry pending before any federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any private arbitration tribunal, or to the knowledge of Licensor
threatened, against, relating to or affecting Licensor or any of its properties
or business, or the transactions contemplated by this Agreement; nor to the
knowledge of Licensor is there any basis for any such commercial claim, action,
suit, proceeding, arbitration, Investigation or inquiry which may have any
adverse effect upon, the assets, properties or business of Licensor, or the
187
<PAGE>
transactions contemplated by this Agreement. Neither Licensor nor any officer,
director, partner or employee of Licensor, has been permanently or temporarily
enjoined by order, judgment or decree of any court or other tribunal or any
agency from engaging in or continuing any conduct or practice in connection with
the business engaged to by Licensor. There is not in existence at present any
order, judgment or decree of any court or other tribunal or any agency enjoining
or requiring Licensor to take any material action of any kind or to Licensor and
its business, properties or assets are subject or bound, Licensor is not in
default under any order, license, regulation or demand of any federal, state or
municipal or other governmental agency or with respect to any order, writ,
Injunction or decree of any court which would have a materially adverse impact
upon Licensor's operations or affairs.
2.7. Other Information. None of the information and documents which
have been furnished or made available by LICENSOR, or any of its representatives
to LICENSEE or any of their representatives in connection with the transactions
contemplated by this Agreement is materially false or misleading or contains any
material misstatements of fact or omits any material fact necessary to be stated
in order to make the statements therein not misleading.
2,8. Covenant to Refrain from trading in Licensee Securities, The
Licensor, its executive officers and directors represent and warrant that since
August 1, 1999 they have not engaged in trading of Licensee securities and until
such time that Licensee has announced the Closing of this Agreement, the
Licensor, its executive officers and directors will not engage in trading of
Licensee securities.
2.9. Authority to Grant a License. Pursuant to the Licensor as
the holder of the patents for the Licensed Products and the knowledge and
consent thereof, the Licensor has the right and authority to grant the license
set forth in this Agreement to the Licensor.
2.10. Compliance with Environmental Laws Licensor has not caused or
permitted its business, properties, or assets to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce, or process any Hazardous Substance (as such term is defined herein)
except in compliance with ' all applicable laws, rules, regulations, orders,
judgments, and decrees, and has not caused or permitted the Release of any
Hazardous Substance on or off the site of any property of Licensor. The term
'Hazardous Substance' shall mean any hazardous waste, as defined by 42 U.S.C.'
6903(5), any hazardous substance, to defined by 42 U.S.C. ' 601(14), any
pollutant or contaminant, as defined by 42 U.S.C. ' 9601(33), and all toxic
substances, hazardous materials, or other chemical substances regulated by any
other law, rule, or regulation. The term 'Release' shall have the meaning set
forth in 42 U.S.C.' 9601(22).
3. Marketing And Distribution Licenses
3.1 Grant of License for AXENOHL, Subject to Closing of this Agreement
as set forth below, Licensor grants to the Licensee a three year, license to
market and distribute AXENOHL for the below described markets where geographic
exclusivity is detailed. (EXCLUSIVITY IS MARKET SPECIFIC ...See markets below
for exclusivity) Provided there has been no breach of this Agreement by the
Licensee which has not been cured within thirty days of written notice of such
breach, this geographic license shall automatically renew on terms herein for an
additional three year terms. This license does not grant the specific right to
manufacture AXENOHL for the first six months from the date of closing. However,
if after 6 (six) months alternative means of manufacturing becomes desirable or
necessary based on market conditions, IMS will have the right or option to
manufacture the AXENOHL formulations adhering strictly to NVID specifications.
If NVID cannot supply AXENOHL for any reason within the first six months from
the closing date, IMS will have the right to manufacture AXENOHL prior to the
end of the six-month period. IMS will bear the complete cost associated with
manufacturing set-up and will offer to provide NVID the AXENOHL product at
manufacturer cost. In such instance, NVID will provide the manufacturing know
how to assist IMS in setting up a manufacturing operation for the AXENOHL
product for their respective markets. (This does not include the price of the
manufacturing equipment or the price of ETI H20 to set-up the operation.)
188
<PAGE>
3.1.1. Manufactured Price
3.1.1:1. The term "Manufactured Price" as used in
this agreement shall mean the actual cost to NVID to produce
AXENOHL per gallon as of the fate supplied to It by NVID's
supplier thereof.
3.1.2. Point-of-Use System Market. The Point-of-Use or
Point-of-Entry System Market shall be water purification
and disinfectant systems for consumer and commercial use. The
point-of-use market for water purification shall consist of
faucet-mount, countertop and under-the-counter models designed
by or marketed by IMS for residential or commercial water
disinfections usage. (Exclusive geographical area; Worldwide)
3.1.3. Healthcare Market. The Healthcare Market shall be all
water purification and disinfections systems for hospitals, clinics,
surgical centers, doctors' offices or other similar medical or health
related facilities, including military medical and health facilities.
Exclusive, license for Australia, North, Central and South America and
a non-exclusive license for, Costa Rica and other World markets.
3.1.3.1. IMS will grant back to NVID a non-exclusive
right to distribute for this market in Mexico.
3.1.4. AXENOHL Licensing Fee. Commencing one month after
Licensee sells AXENOHL in the Point of Use System Market or Healthcare
market, Licensee shall pay a Licensing Fee of S70,000 payable at the
rate of$10,000 per month for (7) seven consecutive months.
3.1.5. AXENOHL, EPA Testing Payments. Licensee shall
be responsible for the fees associated with EPA
certification as provided by EPL-Bio-Analytical. Said fees for EPA
Certification not to exceed $70,000.
3.1.5.1. Fees Disbursement
3.1.5.1.1.520,000 will be paid to NVID
International, Inc. upon closing of this Agreement
as partial repayment of invoices already paid to
EPL-Bio-Analytical by NVID.
3.1.5.1.2. The remaining balance of up to
$50,000 shall be paid to EPL-Bio-Analytical at the
rate of work actually performed monthly commencing
ten (10) days following the closing, and shall not
exceed the actual invoice cost of EPL-Bio-Analytical.
3.1.5.1.3. Royalty. Subject to Closing of
this Agreement asset forth below, the Licensee shall
pay to Licensor, a royalty in the amount of fifteen
percent (15%) of the actual manufactured price of
AXENOHL sold by or through the Licensee during a
calendar quarter in the Point-of-Use Market. The
Royalty shall be paid on or before the thirtieth (30)
day after the close of each calendar quarter for all
AXENOHL for which the Licensee has been paid during
each calendar quarter adjusted solely for returned or
credited product.
3.1.5.1.3.1. Buyer agrees to furnish
Seller with an annual accounting setting
forth the number of units sold in the prior
year concurrently with the filing of it's
form 10-SBK.
3.1.6. Food Processing Market. The Food Processing Market
shall be water purification and disinfectant systems
for commercial human or animal food preparation or processing
operations. Exclusive, license for Australia. North,
Central and South America and a non-exclusive license for, Costa Rica
and other World markets.
3.1.6.1. AXENOHL, USDA Research Agreement Payment.
Win ten (10 days following the Closing of this Agreement,
Licensee shall pay the U.S. Department of Agriculture, 529,500
for a one year research and testing agreement to determine if
AXENOHL may be approved for use in preparation and processing
of food for human or animal consumption.
3.1.6.2. Exclusive License Fees. IMS will pay to
NVID any up-front licensing fees generated by any
third parties for rights to AXENOHL that 1MS may grant in the
food Processing Market in the following manner:
Year One: 15% of fee; Year Two 18.5(degree)/a of fee, Year
Three 20% of fee, Year Four and thereafter 20"/0.
189
<PAGE>
3.1.6.3. Royalty. Subject to Closing of this
Agreement as set forth below, the Licensee shall pay to
Licensor, a royalty in the amount of fifteen percent (15%) of
the manufactured price of AXENOHL sold by or through the
Licensee during a calendar quarter in the Food Processing
Market. The Royalty shall be paid on or before the thirtieth
(30) day after the close of each calendar quarter for all
AXENOHL for which the Licensee has been paid during each
calendar quarter adjusted solely for returned or credited
product.
3.1.7. Dental Market, The Dental Market shall be water
purification and disinfectant systems for use by Dentists
and Oral Surgeons. (Exclusive geographical area; Worldwide)
3.1.7.1. AXENOHL, IDS and RMS Dental Research
Agreement payment. Upon Closing of this Agreement, Licensee
shall pay the actual cost, not to exceed $17,000 to Dr.
Richard Karpay for beginning the research and testing
agreement to determine the efficacy of AXENOHL, IDS and RMS
for dental disinfection and bioofilm removal and an additional
payment not to exceed S 17,000 upon completion of Dr. Karpay's
research.
3.1.7.2. Royalty. Subject to Closing of this
Agreement as set forth below, the Licensee shall pay to
Licensor, a royalty in the amount of fifteen percent (15%) of
the manufactured price of AXENOHL sold by or through the
Licensee during a calendar quarter In the Dental Market. The
Royalty shall be paid on or before the thirtieth (30) day after
the close of each calendar quarter for all AXENOHL for which
the Licensee has been paid during each calendar quarter
adjusted solely for returned product.
4. Closing
4.1. Closing. The Closing of this Agreement shall take place on or
before the thirtieth calendar date following execution of this Agreement or such
date as may be agreed upon by the parties, (herein called the "Closing Date"),
at the offices of the Licensee. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby.
5. Special Covenants
5.1. Due Diligence. The patties hereto shall have up to and including
the date prior to Closing within which to complete their due diligence
investigations on the other party and the transaction contemplated hereunder. In
the event either party hereto decides, in its sole discretion, not to proceed
with the Closing based on its due diligence investigation, it shall notify the
other in writing of such decision and this Agreement, hall terminate without
obligation to the other party except as to the confidentiality provisions.
5.2. Exchange of Information. Each party shall cooperate fully by
exchanging information requested by the other party in a timely manner. Without
in any manner reducing or otherwise mitigating the representations contained
herein, each party and/or its attorneys shall have the opportunity to meet with
the accountants and attorneys of the other party to discuss its respective legal
and financial condition and this transaction. If this transaction is not
completed, all documents received by each party and/or its attorney shall be
returned to the other party and all such information so received shall be
treated as confidential in accordance with Section x.
6. Conditions Precedent to Obligations of Parties
190
<PAGE>
6.1. Licensor's Closing Conditions. The obligations of Licensor
hereunder are subject to fulfillment prior to or at
the Closing of each of the following conditions:
6.1.1. Representations and Warranties, The representations and
warranties of Licensee made pursuant to Paragraph l above, shall be
true and accurate in all material respects as of the Closing Date.
6.1.2. Performance, Licensee shall have performed and complied
with all agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
6.1.2.1. Licensee will use reasonable commercial
marketing efforts in Licensees representations of all market
niches covered in this agreement.
6.1.3. No Adverse Changes. There shall not have been, since
the date of the latest audited financial statements
of Licensee, any materially adverse change in Licensee's financial
condition, assets. Liabilities or business.
6.1.4. Opinion of Licensee's Counsel. Licensee shall have
delivered to Licensor an opinion of Licensee's counsel, Dennis
Brovarone, Attorney at Law, dated the Closing Date to the effect that:
(i) Licensee is a corporation duly organized, validly existing and in
good standing under the laws of the State of California, has all
requisite power to carry on its business as now being conducted and to
execute, deliver and perform this Agreement and to perform its
obligations; (ii) Licensee is duly qualified to do business as a
foreign corporation and is good standing in each jurisdiction in which
the nature of the business conducted by it or the property owned,
operated or leased by it makes such qualification necessary; (iii) this
Agreement has been duly authorized by all necessary corporate action on
the part of Licensee, has been duly executed and delivered by IMS and
constitutes the legal, valid and binding obligation of Licensee
enforceable in accordance with its terms except as enforceability
thereof may be limited by the Insolvency or other laws affecting the
rights of creditors and the enforcement of remedies; (iv) Licensee has
prepared and filed with the SEC all periodic reports required of it
under the 1934 Act; (v) neither the execution, delivery and performance
by Licensee of this Agreement, nor compliance by Licensee with the
terms and provisions hereof, will conflict with, or result in a breach
of the terms, conditions or provisions of, or will constitute a default
under, the Articles of Incorporation or Bylaws of Licensee or any
agreement or instrument known to such counsel to which Licensee is a
party or by which IMS or any of its properties or assets are bound;
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of such counsel, threatened against Licensee before any court
or administrative agency, which have, in the opinion of such counsel,
if adversely decided, will have any material adverse effect on the
business or financial condition of Licensee or which questions the
validity of this Agreement. In rendering his, opinion, counsel shall be
allowed to rely on written representations of officers and directors of
the Licensee as to factual matters without independent verification
thereof
6.1.5. Current Status with Securities and Exchange
Commission,. Licensee shall have prepared arid filed with the SEC all
periodic reports required under the 1934 Act pursuant to Section 12(g)
thereof.
6.1.6. Due Diligence. Licenser shall have completed and be
satisfied with its due diligence investigation of Licensee pursuant
to Paragraph 5.1.
6.2. Licensee's Closing Conditions. The obligations of Licensee
hereunder are subject to fulfillment prior to or at the Closing of
each of the following conditions:
6.2.1. Representations and Warrant's, The representations and
warranties of Licensor made pursuant to paragraph 2 above, shall be
true and accurate in all material respects as of the Closing Date.
191
<PAGE>
6.2.2. No Adverse Changes. There shall not have been, since
the date of the latest audited financial statements of Licensor, any
materially adverse change in their financial condition, assets,
liabilities or business.
6.2.3. Opinion of Licensee's Counsel Licensor shall have
delivered to Licensee, an opinion of their counsel, Mr Curt Crecly,
Attorney at Law, respectively, dated the Closing Date to the effect
that: (i) Licensor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has all
requisite power to carry on its business as now being conducted and to
execute, deliver and perform this Agreement and to perform its
obligations; (ii) Licensor is duly qualified to do business and is in
good standing in each jurisdiction in which the nature of the business
conducted by it or the property owned, operated or leased by it makes
such qualification necessary; (iii) this Agreement has been duly
authorized by all necessary corporate action on the pan of Licensor,
has been duly executed and delivered by Licensor arid constitutes the
legal, valid and binding obligation of Licensor, enforceable in
accordance with its terms except as enforceability thereof may be
limited by the insolvency or other laws affecting the rights of
creditors and the enforcement of remedies; (iv) neither the execution,
delivery and performance by Licensor of this Agreement, nor compliance
by Licensor with the terms and provisions hereof, will conflict with,
or result in a breach of the terms, conditions or provisions of, or
will constitute a default under, the Articles of Incorporation or
Bylaws of Licensor or any agreement or Instrument known to such counsel
to which Licensor is a party or by which Licensor or any of its
properties or assets are bound; (v) there are no actions, suits or
proceedings pending or, to the knowledge of such counsel,. threatened
against Licensor before any court or administrative agency, which, in
the opinion of such counsel, if adversely decided, will have any
material adverse effect on the business or financial condition of
Licensor or which questions the validity of this Agreement. In
rendering their opinion, counsel shall be allowed to rely on written
representations of officers and directors of the Licensor as to factual
matters without independent verification thereof.
6.2.4. Due Diligence. Licensee shall have completed and be
satisfied with its due diligence investigation of Licensor pursuant
to paragraph 5.1.
7. Patent and Copyright Indemnity.
7.1. Licensor warrants that the use of the Licensed Products by the
Licensee pursuant to the terms hereof shall not constitute an infringement of
any existing patent, copyright or other right. Licensor hereby agrees to defend
or settle any suit, proceeding or claim brought against the Licensee based on a
claim that the use of the Licensed Products or any part thereof by the Licensee
constitutes an Infringement of any existing patent, copyright or other right.
Licensor shall pay all damages or costs awarded against or expenses, including
attorneys' fees, incurred by the Licensee in such suit, proceeding or claim.
7.2. In the event the Licensed Products or any part thereof shall be in
Licensees opinion likely to or shall become the subject of a claim for patent,
copyright, or other Infringement, Licensor shall, at its option and expense,
procure for the Licensee the right to continue using such affected part of the
Licensed Products or modify such affected part to become non-infringing. Should
Licensor elect to remove or modify such infringing part of the Licensed
Products, Licensor shall forthwith replace such part with a functionally
equivalent non-infringing part or take other appropriate action to insure that
the Licensed Products conforms to the Specifications to the Licensee's
satisfaction, without cost to the Licensee.
7.3. In the event that Licensor shall refuse or shall be unable to
supply or shall be prevented from supplying the Licensed Products or any part
thereof to the Licensee, or in the event that the Licensee's continued use of
the Licensed Products shall be prohibited or enjoined at any time, Licensor
shall promptly replace all affected parts of the Licensed Products with
functionally equivalent non-infringing parts of shall take such other action to
insure that the Licensed products conforms to the Specifications to the
Licensee's satisfaction, without cost to the Licensee.
192
<PAGE>
7.4. Licensor warrants that the Licensee shall suffer ~o interruption
of its normal business activities or cycles as a result of any claimed
infringement, any litigation referred to in Paragraph 7 hereof or any
replacement of items contemplated in paragraph 7 hereof.
8. Miscellaneous
8.1. Expense and Further Assurance. The parties hereto shall each bear
their respective costs and expenses incurred In connection with the transactions
contemplated by this Agreement. Each party hereto will use its best efforts
provide any and all additional information, execute and deliver any and all
documents or other written material and perform any and all acts necessary to
carry out the intent of this Agreement and to comply with U.S. law.
8,2. Survival of Representations, Warranties and Covenants, All
of the representations, warranties and covenants made as of the date of this
Agreement and as of Closing, shall survive the closing of this transaction,
8.3, Successors and Assigns, All representations, warranties, covenants
and agreements In this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns whether so expressed or not,
8.4. Governing Law. This Agreement and the legal relations among the
Parties hereto shall be governed by and construed In accordance with the laws of
the State of California and that the State or Federal Courts of California shall
be the jurisdiction in which any legal proceedings relative to this Agreement,
shall be brought. The foregoing notwithstanding, the Parties agree that prior to
litigation, they will arbitrate arty disputes relative to this Agreement through
the services of the offices of the American Arbitration Association in and for
San Diego, California.
8.5. Attorney's Fees In any action brought to enforce the terms and
conditions of this Agreement, the prevailing party shall be entitled in addition
to any other remedies, its reasonable attorneys fees Incurred in the prosecution
or defense of the action.
8.6. Section and other Headings. The section and other headings
herein contained are for convenience only and shall not be construed as part
of this Agreement.
8.7. Counterparts. This Agreement may be executed in any number of
counterparts and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute but one and the same instrument.
8,8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements. oral or written, between the parties hereto
with respect to the subject matter hereof. This Agreement tray not be amended or
modified, except by a written agreement signed by all parties hereto.
8.9. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffectual to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction,
8.10. Confidentiality. Each party hereto agrees with the other parties
that, unless and until this Agreement has been consummated, or for a period of
one (1) year from the date of this Agreement if the transaction contemplated by
this Agreement is not consummated it and its representatives will hold in strict
confidence all data and information obtained with respect to the other patty
193
<PAGE>
from any representative, Officer, Director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except: (i) to the extent
such data or information has theretofore been publicly disclosed, is a matter of
public knowledge or Is required by law to be publicly disclosed; and (ii) to the
extent that such data or information must be used or disclosed in order to
consummate the transactions contemplated by this Agreement. The foregoing
notwithstanding, Licensee shall be authorized to publicly announce the execution
and closing of this Agreement, details thereof and a description of Licensor and
the business conducted thereby.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective Officers, hereunto duly authorized, as of the
date first above written.
NVID INTERNATIONAL, INC.
By: David J. Larson, President
By: Michael J. Redden, Secretary
INNOVATIVE MEDICAL SERVICES
By: Michael L. Krall, President
By: Dennis Atchley, Secretary
194
<PAGE>
