exv10w7



 







Exhibit 10.7




LICENSE AGREEMENT




     THIS LICENSE AGREEMENT (“Agreement”) is entered into and effective this 1st day of
October, 2000, by and between sutura, Inc., a Delaware corporation having a place of business at
17080 Newhope Street, Fountain Valley, California 92708 (“Sutura”) and Sucor, Inc., a
California corporation having a place of business at 3520 W. Warner Avenue, Santa Ana,
California 92704 (“Sucor”).



RECITALS




     A. WHEREAS, Sutura has acquired certain intellectual property rights relating to
suturing devices and suturing accessories, which are defined below as “Sutura Rights”;



     B. WHEREAS, the Sutura Rights include certain rights owned by Sterilis, Inc., a
California corporation, which have been exclusively licensed to Sutura for making, having
made, using, selling (or otherwise disposing of), offering for sale and importing Licensed
Products solely within Sutura’s Field of Use;



     C. WHEREAS, Sucor desires to obtain an exclusive, worldwide license under the Sutura
Rights to make, have made, use, sell, offer for sale, and import suturing devices and
suturing accessories solely for closing varicose veins, and Sutura is willing to grant
such a license to Sucor; and



     D. WHEREAS,
prior to its execution, this Agreement was reviewed by each
party’s
attorneys and approved by each party’s Board of Directors.



     NOW, THEREFORE, in consideration of the premises, mutual promises and covenants contained herein,
the parties agree as follows:



I. DEFINITIONS




     For purposes of this Agreement, the following terms shall have the meanings set forth
below:



     A. “Licensed Products” shall mean suturing devices capable of passing one or
more sutures through tissue, and suturing accessories which aid the suturing process,
such as, but not limited to, knot pushers, suture cutters, and suture ties or clips.



     B. “Sucor’s Field of Use” shall mean solely venous occlusion, including varicose
vein closure.



     C. “Sutura’s Field of Use” shall mean the vascular suturing field or market,
excluding the field or market of suturing in obstetrics, gynecology and urology.



     D. “Sutura/Sterilis Agreement” shall mean that certain agreement between Sutura,
Inc. and Sterilis, Inc. dated May 25, 2000, entitled “Cross-License Agreement.”



     E. “Sutura Patents” shall mean (1) the patent applications listed on Schedule A,
(2) all patent applications claiming priority therefrom, including all divisionals,
continuations



 









 




and continuations-in-part thereof, and in connection with provisional applications, all regular
patent applications claiming the benefit thereof, (3) all patents which may be granted on the
foregoing patent applications, and (4) all reissues, re-examinations, and extensions thereof.




     F. “Sutura Licensed Patents” shall mean (1) the patent applications listed on
Schedule B, (2) all regular patent applications claiming the benefit of the
applications listed on Schedule B and which are licensed to Sutura under the
Sutura/Sterilis Agreement, (3) all patents which may be granted on the foregoing
patent applications and which are licensed to Sutura under the
Sutura/Sterilis Agreement, and (4) all reissues, re-examinations, and extensions
thereof which are licensed to Sutura under the Sutura/Sterilis Agreement.



     G. “Sutura Information” shall mean all of Sutura’s trade secrets, proprietary
and/or confidential information, know-how, and other technology and information
relating to the Licensed Products which is in existence as of the effective date of
this agreement.



     H. “Sutura Licensed Information” shall mean all of the Sterilis’ trade secrets,
proprietary and/or confidential information, know-how, and other technology and
information relating to the Licensed Products which is in existence as of the
effective date of this Agreement, and which Sterilis has licensed to Sutura under the
Sutura/Sterilis Agreement.



     I. “Sutura Rights” shall mean the combination of Sutura Patents, Sutura Licensed
Patents, Sutura Information, and Sutura Licensed Information, or any one of them.



II. GRANT OF RIGHTS




     A. Sutura hereby grants to Sucor, and Sucor accepts an exclusive, worldwide license
under the Sutura Patents and Sutura Information to make, have made, use, sell (or
otherwise dispose of), offer for sale and import Licensed Products solely within Sucor’s
Field of Use.



     B. Sutura hereby grants to Sucor, and Sucor accepts an exclusive, worldwide sublicense
under the Sutura Licensed Patents and Sutura Licensed Information to make, have made, use,
sell (or otherwise dispose of), offer for sale and import Licensed Products solely within
Sucor’s Field of Use.



     C. Sucor shall have the right sublicense any of the rights granted to Sucor in this
Agreement.



 









 





III. PAYMENT




     A. As consideration for the license and sublicense granted herein, Sucor shall provide
the following to Sutura upon execution of this Agreement:




	 	1.	 	a non-refundable license fee of One Hundred Thousand Dollars
($100,000); and
	 
	 	2.	 	117,647 shares of common stock of Sucor.





IV. CONFIDENTIALITY




     Sucor and its sublicensees, if any, shall maintain the confidentiality of the Sutura
Information and Sutura Licensed Information, and shall not disclose such information without the prior
written consent of Sutura, which shall not be unreasonably withheld. This obligation of
confidentiality shall not apply to (1) Sutura Information which is or becomes part of the public
domain through no fault of Sucor; (2) Sutura Licensed Information which is or becomes part of the
public domain through no fault of Sucor or Sutura; (3) Sutura Information which Sucor reasonably
demonstrates was already known to Sucor as of the effective date of this Agreement, as evidenced by
presently existing written documentation; or (4) Sutura Licensed Information which was known to
Sutura as of the effective date of the Sutura/Sterilis Agreement, as evidenced by written
documentation in existence as of the effective date of the Sutura/Sterilis Agreement.



V. TERM AND TERMINATION





	 	A.	 	This Agreement shall terminate upon expiration of all of the Sutura Rights.
	 
	 	B.	 	In order to carry out the intent of the parties, Sections V, VII, VIII, IX, X, and
XI shall survive the expiration of this Agreement.





VI. PATENT MARKING




     Sucor shall mark each Licensed Product that is made, used, sold or imported pursuant to the
provisions herein with a patent notice in compliance with the applicable statutory requirements.



VII. OWNERSHIP OF RIGHTS




     Sucor acknowledges that this Agreement does not convey to Sucor any interest in the Sutura
Rights, except as expressly provided herein.



VIII. ENFORCEMENT OF RIGHTS





	 	A.	 	Sucor, in its sole discretion and at its own expense, shall have the right,
but not the obligation, to enforce the Sutura Rights in Sucor’s Field of Use.
	 
	 	B.	 	Sutura, in its sole discretion and at its own expense, shall have the right, but not the obligation, to enforce the
Sutura Rights outside Sucor’s Field of Use.




 









 











     C. Each party agrees to cooperate with and assist the other party, at the expense of such
other party, in enforcing, protecting and defending the Sutura Rights to the extent
reasonably necessary, including but not limited to,  being joined as a necessary or
desirable party to any legal proceedings.



IX. WARRANTIES




     Sucor acknowledges that there are no representations, guarantees or warranties that any patent
claim that is being licensed, or that may be licensed, hereunder is valid or enforceable. In
addition, nothing in this Agreement shall be construed as a warranty or representation that
anything made, used, sold or otherwise disposed of under any license granted in this Agreement is
or will be free from infringement of patents of third parties.



X. INDEMNIFICATION




     Sucor hereby agrees to indemnify, defend, and hold Sutura harmless from and against any and all
claims, liability, loss, costs, damage or expense (including attorneys’ fees and costs) arising
from or in any matter connected with: (i) the infringement or alleged infringement of any third
party rights resulting from Sucor’s manufacture or sale of Licensed Products; or (ii) the operation
of Sucor’s business as it relates to this Agreement.



XI. GENERAL PROVISIONS




     A. The parties hereby agree that this Agreement merely constitutes a licensing
agreement, and that no agency, joint venture or partnership is created thereby, and
that neither party shall incur obligations in the name of the other party without said
other party’s prior written consent.



     B. This Agreement shall be governed and construed in accordance with the laws of
the State of California, and the parties agree that it is executed and delivered in
that state. In that event that any legal action becomes necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled, in
addition to its court costs, to such reasonable attorneys’ fees, expert witness fees
and legal expenses as may be fixed by a court of competent jurisdiction.



     C. Any notice, request, demand, statement or other writing required or permitted
by this Agreement shall be deemed sufficiently given to or made upon the parties
hereto when personally received, delivered by first class certified or registered
mail, postage prepaid, or delivered by overnight express courier to the addresses set
forth on the first page of this Agreement or such other address of which the parties
receive written notice.



     D. No failure or delay on the part of either party hereto in insisting upon or
enforcing or resorting to any of its powers, rights, remedies, or options hereunder,
and no partial or single exercise thereof, shall constitute a waiver of any such
powers, rights, remedies or options, unless such waiver is in writing. Such waiver shall not constitute a waiver as to any subsequent and/or similar
breach or default.



     E. If any provision of this Agreement should be held to be void or
unenforceable, in whole or in part, the court or tribunal so holding shall reform the
provision to make it enforceable while maintaining the spirit and goal of the
provision, and if the court or tribunal finds it cannot so




 










 






reform that provision, such provision or part thereof shall be treated as severable, leaving
valid the remainder of this Agreement.




     F. As to the subject matter hereof, this Agreement supersedes and cancels all previous
agreements between the parties hereto. This Agreement constitutes the entire understanding
and agreement of the parties, and there are no representations, warranties, promises, or
undertakings other than those contained herein. No course of conduct or dealing between
the parties shall act as a modification or waiver of any provision of this Agreement, and
no waiver or modification of any of the terms or provisions of this Agreement shall be
valid, unless contained in a single written document signed by both parties.



     G. This Agreement may be assigned by either party without the consent of other party in
connection with the sale or transfer of substantially all or that party’s business
relating to Licensed Products, provided that prompt written notice of such assignment or
transfer is provided to the other party. This Agreement shall be binding upon the parties
hereto and their respective subsidiaries, affiliates, heirs, legal representatives,
successors and assigns.



     H. The headings in this Agreement are intended for convenience only, and shall not be
used to interpret the meaning of this Agreement or to determine the rights of the
parties.



     I. Each party shall perform any further acts and sign and deliver any further documents
that are reasonably necessary to effectuate the provisions of the
spirit of this Agreement.



[SIGNATURE PAGE FOLLOWS]




 









 








     IN WITNESS WHEREOF, the parties have caused this instrument to be executed, effective as of the day
and year first above written.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	SUTURA, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	Dated: OCTOBER 1, 2000

	 	 	 	By:
	 	/s/ B. Wayne Johnson	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	Printed Name: B. Wayne Johnson	 	 
	 	 	 	 	Title
: PRESIDENT /COO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	SUCOR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	Dated: OCTOBER 1, 2000

	 	 	 	By:
	 	/s/ Anthony Nobles	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	Printed Name: Anthony Nobles	 	 
	 	 	 	 	Title :
PRES. /CEZ	 	 






 









 






SCHEDULE A




Patent
Applications:




	 	 	 	 	 	 	 
	 	 	 	 	Application	 	 
	Title of Invention	 	Country	 	Number	 	Filing Date
	SUTURING DEVICE AND METHOD
	 	US	 	09/524,211	 	3/13/00
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING
AN OPENING IN A BOLOOD VESSEL
	 	AU	 	 	 	2/23/99
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING AN
OPENING IN A BLOOD VESSEL
	 	CA	 	 	 	2/23/99
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING AN
OPENING IN A BLOOD VESSEL
	 	CN	 	99803869.5	 	2/23/99
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING AN
OPENING IN A BLOOD VESSEL OR
OTHER BIOLOGICAL STRUCTURE
	 	EP	 	99301495.0	 	3/1/99
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING AN
OPENING IN A BLOOD VESSEL OR
OTHER BIOLOGICAL STRUCTURE
	 	JP	 	544795/99	 	2/23/99
	 
	 	 	 	 	 	 
	SUTURING DEVICE FOR SEALING AN
OPENING IN A BLOOD VESSEL
(AMEND PER PCT SEARCH REPT)
	 	 	 	PCTUS99/03904	 	2/23/99
	 
	 	 	 	 	 	 
	METHOD AND APPARATUS FOR
SUTURING
	 	 	 	PCTUS96/13666	 	8/23/96
	 
	 	 	 	 	 	 
	KNOT PUSHER
	 	US	 	09/571,759	 	5/15/00
	 
	 	 	 	 	 	 
	KNOT PUSHER
	 	US	 	60/134,141	 	5/14/99
	 
	 	 	 	 	 	 
	KNOT PUSHER
	 	 	 	PCTUS00/13254	 	5/15/00
	 
	 	 	 	 	 	 
	METHOD AND APPARATUS FOR TYING
SUTURE KNOTS
	 	US	 	60/223,196	 	8/4/00
	 
	 	 	 	 	 	 
	SUTURING
DEVICE AND METHOD FOR SEALING AN
OPENING IN A BLOOD VESSEL OR
OTHER BIOLOGICAL STRUCTURE
	 	US	 	09/471,866	 	12/23/99
	 
	 	 	 	 	 	 
	SUTURE CUTTER
	 	US	 	60/228,267	 	8/25/00






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SCHEDULE A (Cont’d)




Patents:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Application	 	 	 	Patent	 	 
	Title of Invention	 	Country	 	Number	 	Filing Date	 	Number	 	Issue Date
	METHOD AND
APPARATUS FOR
SUTURING
	 	US	 	08/702,315	 	8/23/96	 	5,860,990	 	1/19/99
	 
	 	 	 	 	 	 	 	 	 	 
	DEVICE AND METHOD
FOR SUTURING TISSUE
ADJACENT TO A BLOOD
VESSEL
	 	US	 	08/686,201	 	8/1/96	 	5,820,631	 	10/13/98
	 
	 	 	 	 	 	 	 	 	 	 
	SUTURING DEVICE AND
METHOD FOR SEALING
AN OPENING IN A
BLOOD VESSEL OR
OTHER BIOLOGICAL
STRUCTURE
	 	US	 	09/231,177	 	1/14/99	 	6,117,144	 	9/12/00






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SCHEDULE B




Patent Applications:




	 	 	 	 	 	 	 
	 	 	 	 	Application	 	 
	Title of Invention	 	Country	 	Number	 	Filing Date
	SUTURING METHOD AND
APPARATUS
	 	US	 	60/211,763	 	6/14/00
	 
	 	 	 	 	 	 
	CAVITY ENLARGER
	 	US	 	60/178,974	 	1/28/00









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