Exhibit
10.3


 


DEVELOPMENT AND COMMERCIALIZATION AGREEMENT


 


THIS DEVELOPMENT AND COMMERCIALIZATION AGREEMENT (the “Agreement”) is
made and entered into the 25th day of July, 2008 to be effective as of the
effective date (the “Effective Date”), between Artann Laboratories, Inc.,
(“Artann”) a Delaware corporation, and ProUroCare Medical Inc., (“ProUroCare”)
a Nevada corporation.


 


WITNESSETH:


 


WHEREAS, ProUroCare has expertise and intellectual property in the
field of urologic products and applications; and


 


WHEREAS, Artann has developed expertise and intellectual property in
the area of a prostate mechanical imaging system; and


 


WHEREAS,  ProUroCare and Artann
desire to enter into (i) this Agreement and (ii) a License Agreement
of even date herewith (the “License Agreement”) whereby Artann grants certain
patent, trade secret and technology license rights to ProUroCare with respect
to various prostate mechanical imaging systems (the “PMI System”); and


 


WHEREAS, Artann and ProUroCare desire to work together pursuant to the
terms of this Agreement to develop and commercialize PMI Systems.


 


AGREEMENTS:


 


NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, and for other valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties mutually agree as follows:


 


ARTICLE 1

DEFINITIONS


 


1.1           Specific
Definitions.  As used in this
Agreement, the following terms shall have the meanings set forth or as
referenced below:


 


“2008
ProUroCare Offering” means one or more public or private equity offerings
that raises at least Four Million Dollars ($4,000,000.00) by ProUroCare after
the date of signing of this Agreement.


 


“2008 Offering
Price” means the weighted average price that ProUroCare shares have traded
over the forty five (45) day period prior to the date of the closing of the
2008 ProUroCare Offering.


 


“510K” means an application filed with FDA pursuant to § 510(k) of
the Medical Device Amendments of 1976 to the Federal Food, Drug and Cosmetic
Act to initiate marketing and sales in the U.S.


 


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“Agreement” means this Agreement and all Exhibits hereto.


 


“Artann” means Artann Laboratories, Inc.


 


“Artann Trade Secrets” means the Confidential Information of
Artann (e.g., software source code) that are used or useful in the use,
manufacture or sale of a PMI System and which provide a sustainable competitive
technology and which qualify fully as trade secret information within the
normal and common meaning of that term under the laws of the State of New
Jersey.


 


“Confidential Information” means know-how, trade secrets, and
unpublished information disclosed (whether before or during the term of this
Agreement) by one of the parties (the “disclosing party”) to the other party
(the “receiving party”) or generated under this Agreement, excluding
information which:


 


(a)           was already in the
possession of receiving party prior to its receipt from the disclosing party
(provided that the receiving party is able to provide the disclosing party with
reasonable documentary proof thereof);


 


(b)           is or becomes part
of the public domain by reason of acts not attributable to the receiving party;


 


(c)           is or becomes
available to receiving party from a source other than the disclosing party
which source, to the best of receiving party’s knowledge, has rightfully
obtained such information and has no obligation of non-disclosure or
confidentiality to the disclosing party with respect thereto;


 


(d)           is made available by
the disclosing party to a third party unaffiliated with the disclosing party on
an unrestricted basis;


 


(e)           has been
independently developed by the receiving party without breach of this Agreement
or use of any Confidential Information of the other party; or


 


(f)            has been or must be
publicly disclosed by reason of legal, accounting or regulatory requirements
beyond the reasonable control, and despite the reasonable efforts of the
receiving party.


 


All Confidential Information disclosed by one party to the other under
this Agreement with the exception of PMI Documentation and Artann Trade Secrets
shall be in writing and bear a legend “Company Proprietary” or words of similar
import or, if disclosed in any manner other than writing, shall be preceded or
followed by an oral statement indicating that the information is Company
proprietary or confidential, with an identification of the particular
information that is Company proprietary or confidential.  PMI Documentation and Artann Trade Secrets
will be considered Confidential Information by default.


 


“Effective Date” means ten (10) days after close of the
2008 ProUroCare Offering or November 30, 2008, whichever is first to
occur.


 


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“FDA” means the United States Food and Drug Administration or
any successor entity thereto.


 


“FDA Approval” means approval by the FDA of a 510K or PMA to
commercially sell a Product.


 


“Field of Use” means diagnosis or treatment of urologic
disorders of the prostate, kidney or liver.


 


“Generation V PMI System” means the most current PMI System
existing as of the Effective Date of the Agreement.


 


“Intellectual Property” means U.S. and foreign patents and
patent applications, know-how, trade secrets, Inventions, discoveries and
technical information including but not limited to information embodied in
drawings, designs, mask works, mask work applications, copyrights, copyright
applications, trademarks and trademark applications, material specifications,
processing instructions, formulas, equipment specifications, product
specifications, confidential data, computer software, electronic files,
research notebooks, invention disclosures, research and development reports and
the like related thereto and all amendments, modifications and improvements to
any of the foregoing.


 


“Invention” means any invention, whether or not patented or
patentable, and whether or not memorialized in writing.


 


“PMA” means a pre-market approval application filed with the FDA
as more fully defined under 21 U.S.C. Section 360(e), to obtain permission
to initiate marketing and sales in the U.S.


 


“PMI System” means the Artann’s prostate mechanical imaging
system consisting of a 1) transrectal probe with pressure sensor arrays, 2)
positioning system, 3) data processing unit, 4) real time imaging display, and
5) operating system, as generally outlined in the journal article entitled “Prostate
Mechanical Imaging:  A New Method for
Quantitative Prostate Assessment” by Weiss, et al.


 


“PMI Documentation” means software and software source code (if,
and to the extent such code is not maintained as an Artann Trade Secret); any
and all drawings, schematics, assembly information, methods, specifications,
know how, procedures, processes, designs, technical data and engineering
reports necessary and/or useful in the development, use and manufacture of a
PMI System.


 


“Product” means a PMI System including all improvements and
modifications applicable thereto, except for improvements and modifications
that are developed for a different medical device which have only tangential
application to a PMI System and which were developed independently of any
activities conducted under this Agreement and/or the Development and
Commercialization Agreement.


 


“ProUroCare” means ProUroCare Medical, Inc.


 


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“Territory” means anywhere and everywhere in the world.


 


1.2           Definitional
Provisions.


 


(a)           The words “hereof,” “herein,”
and “hereunder” and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole and not to any particular provisions of this
Agreement.


 


(b)           Terms defined in the
singular shall have a comparable meaning when used in the plural, and
vice-versa.


 


(c)           References to an “Exhibit”
or to a “Schedule” are, unless otherwise specified, to one of the Exhibits or
Schedules attached to or referenced in this Agreement, and references to an “Article”
or a “Section” are, unless otherwise specified, to one of the Articles or
Sections of this Agreement.


 


(d)           The term “person”
includes any individual, partnership, joint venture, corporation, trust,
unincorporated organization or government or any department or agency thereof.


 


ARTICLE 2

DEVELOPMENT ACTIVITIES


 


2.1           Purpose.   Artann and ProUroCare intend to collaborate
together to develop, commercialize and market PMI Systems.  Toward that end, clinical testing regulatory
approval and product refinement of the PMI System is indicated.  Each party shall perform its respective
obligations pursuant to the process set forth in this Agreement.


 


2.2           Clinical Testing and IDE
Submission.


 


(a)           Unless otherwise specified, Artann
shall conduct and complete all pre-clinical activities and testing on the
Generation V PMI System.


 


(b)           Unless otherwise specified, Artann
shall be responsible for obtaining all necessary FDA regulatory approval for
tests of the Generation V PMI System pursuant to an IDE including specification
of the scope of IDE clinical study, selection of investigational sites,
preparation of investigator brochures, instruction and training of clinical
investigators, data collection and analysis reporting of adverse IDE events and
overall preparation and prosecution of FDA approved IDE clinical studies.  It is understood that all chosen
investigational sites shall be acceptable to Artann, shall not conflict with
the NIH grant objectives and shall be subject to the inventory and
accountability requirements as specified by the Department of Health and Human
Services.


 


(c)           Artann may solicit, accept and
utilize NIH grant monies for the conduct of such pre-clinical and clinical
studies, as, if, and to the extent permitted in any such grants.


 


(d)           Artann shall share information with
ProUroCare necessary to facilitate a mutual understanding of the status of the
clinical studies and the decision-making in connection 


 


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therewith.  Without limiting the foregoing, Artann shall
provide ProUroCare with a summary of the clinical activities and developments
as reasonably requested by ProUroCare. 
Such report shall encompass data, records and reports generated by or
for hospitals, clinics and health care groups and all reports and information
on the IDE clinical study provided to the FDA and all information and reports
received from the FDA.  ProUroCare shall
be provided a copy of the NIH grant.


 


(e)           ProUroCare shall provide clinical
study advice and assistance, at no charge to Artann, including but not limited
to suggestions on the selection of investigators, the scope and content of
clinical study protocol and IDE submissions, the preparation of investigator
brochures, the claims to be addressed and supported in the study, and the
overall conduct of the clinical studies. 
Although not bound to follow such ProUroCare advice and suggestions,
Artann shall give it due consideration and preference whenever feasible.


 


2.3           510K/PMA Regulatory Submission.


 


(a)           Unless otherwise specified, Artann
shall be responsible for preparing all necessary regulatory approvals for the
Generation V PMI System via a 510K or PMA application to FDA in accordance with
the NIH grant funding even though the 510K or PMA application may be drafted or
prepared in significant part by Hogan & Hartson and/or other
regulatory and consulting groups.


 


(b)           Artann may solicit, accept and
utilize NIH grant monies for such 510K or PMA submission, as, if and to the
extent permitted in any such grants.


 


( c)          Artann shall share information with
ProUroCare on the proposed 510K or PMA application strategy, including but not
limited to details on the proposed claims, warnings, contradictions and use
instructions for which approval is to be sought.  Without limiting the foregoing, Artann shall
allow ProUroCare to review and comment upon any and all draft 510(K) or
PMA submissions and shall modify any such 510(K) or PMA submission as
requested by ProUroCare, unless such ProUroCare requested modification would
delay the date that the 510(K) or PMA is filed with and/or approved by
FDA.


 


(d)           The 510(K) or PMA application
shall be submitted in the name of Artann, but application shall be made to FDA
to have the name on the application changed from Artann to ProUroCare upon the
first commercial sale of the Generation V PMI System.


 


2.4           Product Refinement.


 


(a)           Artann shall provide Product hardware
and software development, refinement and debugging services to ready the
Generation V PMI System for commercial sale. 
Such development, refinement and debugging services shall, among other
things, address issues, concerns and deficiencies identified in IDE clinical
testing and satisfy FDA concerns.


 


(b)           Artann may solicit, accept and
utilize NIH grant monies for such Product refinement, as, if, and to the extent
permitted in any such grants.


 


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ARTICLE 3


PAYMENT FOR DEVELOPMENT
ACTIVITIES


 


3.1           In consideration for the development
activities undertaken by Artann hereunder, ProUroCare shall provide Artann; 1)
the equity set forth in Section 3.2; 2) the milestone payments set forth
in Section 3.3, and 3) the retainer fee set forth in Section 3.4.


 


3.2           Equity.


 


ProUroCare shall
provide equity (i.e., shares of stock) in ProUroCare having a value of
approximately One Million Dollars ($1,000,000.00) upon completion of the FDA
approved IDE clinical studies more fully described in Section 2.2 and
submission of a 510(K) or PMA as outlined in Section 2.3 on the
Generation V PMI System.  The exact
number of shares of stock in ProUroCare shall equal $1,000,000.00 divided by
the fair market value price per share of ProUroCare stock, with that price
being the weighted average price that ProUroCare shares have traded over the
forty five (45) day period prior to the date of the 510(K) or PMA
submission.  In no event shall the fair
market price per share used for this computation be less than eighty percent
(80%) of the 2008 Offering Price.


 


3.3           Milestone Payments.


 


ProUroCare shall
make the following milestone payments to Artann:


 


(a)           Two Hundred Fifty Thousand Dollars
($250,000.00) upon initiation of an FDA approved IDE clinical study (i.e., upon
first actual use of a Generation V PMI System on a patient enrolled in the IDE
clinical study) on the Generation V PMI System as more fully described in Section 2.2;


 


(b)           Two Hundred Fifty Thousand Dollars
($250,000.00) upon completion of that FDA approved IDE clinical study and
submission of a 510(K) or PMA on the Generation V PMI System; as more
fully described in Section 2.3; and


 


(c)           Seven Hundred Fifty Thousand Dollars
($750,000.00) upon FDA approval of a 510(K) or PMA to allow the Generation
V PMI System to be commercially sold.


 


3.4           ProUroCare shall pay Artann a monthly
retainer fee for technical advice and training of ProUroCare representatives by
qualified Artann personnel, as may be most appropriate, to facilitate a
thorough understanding of the Generation V PMI System and the PMI
Documentation.  Although the exact number
of days that it will take Artann personnel to conduct such advice and training
is not now known, it is anticipated that it may take up to twenty-five (25)
days per month for the first six (6) months and twelve (12) days per month
for the following twelve (12) months. 
The monthly fee retainer shall be paid within ten (10) days from
the end of the month starting from the Effective Date of the Agreement and
shall be Thirty Thousand Dollars ($30,000.00) per month for each of the first
six (6) months from the Effective Date of the Agreement and Fifteen
Thousand Dollars ($15,000.00) per month for the next twelve (12) 


 


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months.  It is understood and agreed that any
intellectual property (e.g., any patentable invention) provided through or as a
part of this technical advice and training shall not be deemed to be work made
for hire and ProUroCare shall not obtain any property rights thereto.


 


3.5           Product Development Success Bonus.


 


ProUroCare shall
provide equity (i.e., shares of stock) in ProUroCare having a value of
approximately One Million Dollars ($1,000,000.00) as a bonus if FDA approval
for commercial sale of the Generation V PMI System is obtained within fifteen
(15) months of the Effective Date of the Agreement.  The exact number of shares of stock in
ProUroCare shall equal $1,000,000.00 divided by the fair market value price per
share of ProUroCare stock, with that price being the weighted average price
that ProUroCare shares have traded over the forty five (45) day period prior to
the date of the 510(K) or PMA approval for commercial sale.  Such equity shall be reduced by ten (10) percent
per month for each full month that such FDA approval is delayed beyond such
fifteen (15) month period.


 


ARTICLE 4


SCALE UP COMMERCIAL ACTIVITIES


 


4.1           Pre-Commercial Product.


 


Artann shall
supply to ProUroCare such quantities of Generation V PMI Systems as is
reasonably required by ProUroCare for pre-commercial test, evaluation,
marketing and clinical study and to facilitate having a third party
manufacturer produce the Generation V PMI Systems for commercial sale.  The number of such pre-commercial Generation
V PMI Systems to be supplied by Artann is anticipated to number approximately
twenty (20).


 


4.2           Commercial Product.


 


Artann may be
requested to provide Generation V PMI Systems for ProUroCare’s initial
commercial marketing.  Artann agrees to
use best reasonable efforts to provide such needed commercial Product to
ProUroCare and ProUroCare shall use best reasonable efforts to limit the number
of such Product to a number less than one hundred (100).


 


4.3           Pre-Commercial and Commercial
Product.


 


ProUroCare shall
pay Artann TBD Dollars for each requested pre-commercial Generation V PMI
System and TBD Dollars for each commercial system.  Payment for each such system shall be made as
follows:  fifty percent (50%) at the date
ProUroCare orders the Generation V PMI System and the remaining fifty percent
(50%) upon delivery to ProUroCare.


 


4.4           Scale-Up Service.


 


Artann shall
provide all reasonably requested Generation V PMI System manufacture and
scale-up services to ProUroCare or a third party manufacturer designated by
ProUroCare to facilitate the commercial manufacture of such Product.  Such services shall be provided by qualified
Artann personnel and ProUroCare shall pay Artann Twelve Hundred Dollars 


 


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($1,200.00) per
day per individual (based upon an eight (8) hour work day with partial
days being payable on a pro-rata basis) for such services.


 


ARTICLE 5


FUTURE
GENERATION PMI SYSTEMS


 


5.1           Future Agreements.


 


The parties
contemplate the development and marketing of further and additional versions
and generations of PMI Systems. 
ProUroCare shall solicit ideas and recommendations from Artann, but
ProUroCare shall be solely responsible for setting specifications and
outsourcing the manufacture of such further and additional versions and
generations of PMI Systems.  The specific
terms for development and marketing of such further and additional versions and
generations of PMI Systems shall be as specified in a separate agreement
entered into between the parties hereto.


 


5.2           Future NIH Grants.


 


ProUroCare shall
have a “right of first negotiation” with Artann regarding any future NIH grants
that Artann receives for the development of Products in the Field of Use.  The “right of first negotiation” means the
right of ProUroCare to negotiate exclusivity with Artann for a period of ninety
(90) days (the “period of exclusivity”) from the date of such NIH grant to
enter into a development and commercialization arrangement for such
Products.  If an agreement is not reached
during this “period of exclusivity”, Artann may enter into a development and
commercialization agreement with a third party, but only upon terms which are
no less favorable than those offered by ProUroCare during the “period of
exclusivity”.


 


ARTICLE 6


CERTAIN
REPRESENTATIONS, WARRANTIES AND INDEMNITIES


 


6.1           Representations and Warranties.


 


(a)           Artann represents
and warrants to ProUroCare that the execution and delivery by Artann of this
Agreement and the performance by Artann of its obligations hereunder have been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Articles of Incorporation or Bylaws of Artann, as amended, or any provision of
any indenture, agreement or other instrument to which Artann or any of its
properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge, restriction, claim or encumbrance of any nature
whatsoever upon any of the properties or assets of Artann and that this
Agreement has been duly executed and delivered by Artann and constitutes the
legal, valid and binding obligation of Artann, enforceable in accordance with
its terms, subject, as to the enforcement of remedies, to the discretion of the
courts in awarding 


 


8

















 


equitable
relief and to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally.


 


(b)           ProUroCare
represents and warrants to Artann that the execution and delivery by ProUroCare
of this Agreement and the performance by ProUroCare of its obligations
hereunder have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Articles of Incorporation or Bylaws of ProUroCare, as amended,
or any provision of any indenture, agreement or other instrument to which
ProUroCare or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or both)
a default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the properties or assets of
ProUroCare and that this Agreement has been duly executed and delivered by
ProUroCare and constitutes the legal, valid and binding obligation of
ProUroCare, enforceable in accordance with its terms, subject, as to the
enforcement of remedies, to the discretion of the courts in awarding equitable
relief and to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally.


 


Limitation of
Liability.  ARTANN
WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR COSTS OF PROCUREMENT OF SUBSTITUTE
PRODUCT OR SERVICES, OR OTHERWISE, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.


 


6.2           Indemnity.


 


(a)           Purposely left blank.


 


(b)           Subject to the terms and conditions of this Agreement,
ProUroCare shall indemnify and hold Artann, and each of its officers,
directors, employees, agents or consultants harmless from and against any
third-party liability, losses, damages, claims, costs and expenses (including
reasonable fees of attorneys and other professionals and court costs)
(collectively “Liabilities”) arising out of or connected with (a) any
breach of this Agreement by ProUroCare or 
(b) the use by or administration of the ProUroCare Product to any
person that arises out of the use, manufacture, sale, import or other
exploitation of a ProUroCare Product by ProUroCare or a ProUroCare sublicensee
(except to the extent such liability resulted from any gross negligence or
willful misconduct of Artann in the design, specification or manufacture of the
Product).  Additionally, ProUroCare shall
maintain commercially reasonable product liability insurance with such insurance
being effective as of a date no later than the date of first clinical use
independently directed by ProUroCare or commercial sale of Product and shall
have Artann listed as an additional insured party on such insurance.


 


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ARTICLE 7

INTELLECTUAL PROPERTY


 


7.1           Ownership of Intellectual Property.  All Intellectual Property of ProUroCare
existing on the Effective Date, and any Intellectual Property developed solely
by employees of, or consultants working for, ProUroCare in the course of the
Agreement, shall be and remain the property of ProUroCare.  All Intellectual Property of Artann existing
on the Effective Date, and any Intellectual Property, developed solely by
employees of, or consultants working for Artann in the course of the Agreement,
shall be the property of Artann and ProUroCare shall not acquire any rights
therein except pursuant to the License Agreement.  Any Intellectual Property developed jointly
by employees or consultants of Artann and ProUroCare in the course of work
performed under this Agreement shall be jointly owned by ProUroCare and Artann,
with each party having an undivided interest therein, subject to the License
Agreement.


 


7.2           Protection of Intellectual
Property.  If either Artann or
ProUroCare proposes to file for any U.S. or foreign patent, copyright and mask
work registration, or any continuation or modification thereof, with respect to
any Joint Invention, or proposes to prosecute any alleged infringement of any
Joint Invention, then such party proposing to file such registration or
prosecute such alleged infringement (“the first party”) shall notify the other
party (“the second party”) in writing and the second party shall have option of
joining in such action.  If the second
party elects to join in such action, the second party shall (i) pay
one-half of the total expenses incurred by ProUroCare and Artann therein, (ii) be
entitled to participate in all material steps in such action, and (iii) in
the event of prosecution of alleged infringement, be entitled to share in one-half
of all recoveries.  If the second party
elects not to join in such action, the first party shall be entitled to control
such action and retain all recoveries from the prosecution of alleged
infringement, but such failure to participate shall not affect the second party’s
ownership interest in the Joint Inventions or in any Intellectual Property
rights therein.  Whether or not the
second party elects to join in such action, the second party shall, upon the
request of the first party, cooperate with and assist the first party in such
action to the extent required by statute, regulation, or government agency,
including without limitation, executing and delivering all documents in
connection therewith and using its reasonable efforts to obtain such executions
from all appropriate employees and agents of the second party; provided that if
the second party has elected not to participate in such action, the first party
shall reimburse the second party for costs and expenses incurred by the second
party in connection with such cooperation, including any filing and attorneys
fees, but not including internal administrative or personnel expenses of the
second party.  Each party will treat
Joint Inventions as Confidential Information so long as they remain trade secrets
under applicable state statutes or common law except to the extent that such
Joint Invention are protected by federal copyright, patent or mask work
statutes.  Except as set forth in this Section 7.2
and the License Agreement, each party may freely license or assign Joint
Inventions (provided that any assignee agrees in writing to be bound by the
obligations of the licensing or assigning party hereto and obligations of
confidentiality as they apply to Confidential Information hereunder) and
neither party will have any obligation to account to the other with respect to
Joint Inventions.  The obligations of
this Section 7.2 shall survive any termination or expiration of this
Agreement.


 


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ARTICLE 8


TERM AND TERMINATION


 


8.1           Term.  Subject to earlier termination as provided in
Section 8.2 of this Agreement, this Agreement shall commence upon the
Effective Date and is for an initial term of three (3) years and may
thereafter be renewed for additional one (1) year terms upon mutual
agreement of the parties.


 


8.2           Termination.  Notwithstanding the provisions of Section 8.1
above, this Agreement may be terminated in accordance with the following
provisions:


 


(a)           A party may
terminate this Agreement by giving notice in writing to the other party if the
other party is in breach of any material obligation (e.g., obligation of
ProUroCare to make a payment as specified under Sections 3.1, 3.2 and 3.3
hereof and Sections 3.1 and 3.3 of the License Agreement), representation,
warranty or covenant of this Agreement and shall have failed to cure such
breach within sixty (60) days of receipt of written notice thereof from the
first party;


 


(b)           A party may terminate this agreement
at any time by giving notice in writing to the other party, which notice shall
be effective upon dispatch, should the other party become insolvent, make an
assignment for the benefit of creditors, go into liquidation or receivership or
otherwise lose legal control of its business.


 


8.3           Effect of Termination.


 


(a)           Upon termination of this Agreement for any reason, nothing
herein shall be construed to release either party from any obligation that
matured prior to the effective date of such termination.


 


(b)           The provisions of Article 6 (Certain Representations,
Warranties, and Indemnities); Article 5 (Intellectual Property); Section 9.1
(Non-Disclosure) and Section 9.12 (Arbitration) shall survive a
termination under Section 8.2.


 


ARTICLE 9


MISCELLANEOUS


 


9.1           Non-Disclosure.  Each party agrees not to disclose or use
(except as permitted or required for performance by the party receiving such
Confidential Information of its rights or duties hereunder or under the License
Agreement) any Confidential Information of the other party obtained during the
term of this Agreement until (i) the expiration of four (4) years
after the termination or expiration of this Agreement or (ii) the end of
2015, whichever is last to occur.  Each
party further agrees to take appropriate measures to prevent any such
prohibited disclosure by its present and future employees, officers, agents,
subsidiaries, or consultants during the term of this Agreement and for a period
of (i) four (4) years thereafter or (ii) the end of 2015,
whichever is last to occur.  Artann Trade
Secrets shall be kept confidential perpetually.


 


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9.2           Assignment.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the successors or assigns of the
parties hereto; provided, that (i) the rights and obligations of Artann
herein may not be assigned except to any person who succeeds to substantially
all of Artann’s business, and (ii) the rights and obligations of
ProUroCare herein may not be assigned except to any person who succeeds to all
or a substantial portion of ProUroCare’s business to which this Agreement
relates.  Any attempted assignment of
this Agreement in violation of this Section 9.2 shall be null and void.


 


9.3           Entire Agreement.  This Agreement and the Development and Commercialization
Agreement, and the agreements contemplated herein and therein constitute the
entire agreements of the parties with respect to the subject matter of such
agreements and supersede all previous proposals or agreements, oral or written,
and all negotiations, conversations or discussions heretofore had between the
parties related to the subject matter of such agreements.


 


9.4           Governing Law.  This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New
Jersey, without giving effect to principles of conflicts of laws.  The parties hereby agree to submit all
disputes arising hereunder to the jurisdiction of the Federal District Court
for New Jersey where Artann is resident.


 


9.5           Amendment, Waiver, Discharge, etc.  This Agreement may not be amended, released,
discharged, abandoned, changed or modified in any manner, except by an
instrument in writing signed on behalf of each of the parties to this Agreement
by their duly authorized representatives. 
The failure of either party to enforce at any time any of the provisions
of this Agreement shall in no way be construed to be a waiver of any such
provision, nor in any way to affect the validity of this Agreement or any part
of it or the right of either party after any such failure to enforce each and
every such provision.  No waiver of any
breach of this Agreement shall be held to be a waiver of any other or
subsequent breach.


 


9.6           Execution in Counterparts.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other party.


 


9.7           Titles and headings; Construction.  The titles and headings to Sections herein
are inserted for the convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.  This Agreement shall be construed without
regard to any presumption or other rule requiring construction hereof
against the party causing this Agreement to be drafted.


 


9.8           Benefit.  Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties to this
Agreement or their respective successors or permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.


 


9.9           Notices.  All notices or other communications to a
party required or permitted hereunder shall be in writing and shall be delivered
personally or by facsimile (receipt 


 


12

















 


confirmed) to such
party (or, in the case of an entity, to an executive officer of such party) or
shall be given by certified mail, postage prepaid with return receipt
requested, addressed as follows:


 


if to ProUroCare to:


 


ProUroCare Medical, Inc.


5500 Wayzata Boulevard, #310


Golden Valley, MN  55416


Attention: 
CEO


Phone: 
952-476-9093


Fax: 
763-591-5039


 


if
to Artann to:


 


Artann Laboratories, Inc.


1459 Lower Ferry Road


West Trenton, NJ 
08618-1414


Fax:  (609)
333-0710


Phone:  (609) 333-0712


 


Artann or ProUroCare may
change their respective above-specified recipient and/or mailing address by
notice to the other party given in the manner herein prescribed.  All notices shall be deemed given on the day
when actually delivered as provided above (if delivered personally or by
facsimile) or on the day shown on the return receipt (if delivered by mail).


 


9.10         Severability.  If any provision of this Agreement is held invalid
by a court of competent jurisdiction, such provision shall be enforced to the
maximum extent permissible and the remaining provisions shall nonetheless be
enforceable according to their terms.


 


9.11         Execution of Further Documents.  Each party agrees to execute and deliver
without further consideration any further applications, licenses, assignments
or other documents, and to perform such other lawful acts as the other party
may reasonably request to fully secure and/or evidence the rights or interests
herein.


 


9.12         Purposely Left Blank.


 


9.13.        Compliance with Laws.  The parties will, and ProUroCare shall cause
any permitted sublicensees of ProUroCare to, comply with all applicable
international, national, state, regional and local laws and regulations,
including all applicable import and export control laws, in exercising rights
or performing their duties under this Agreement.


 


9.14.        Force
Majeure.  Neither party shall be in
default because of any failure to perform this Agreement if such failure arises
from causes beyond the control of such party (“the first party”) and without
the fault or negligence of such first party, including without limitation, Acts
of God or of the public enemy, acts of the Government in either its sovereign
or contractual capacity, fires, floods, earthquakes, epidemics, quarantine
restrictions, strikes, freight embargoes 


 


13

















 


or unusually
severe weather.  In each instance, the
failure to perform must be beyond the reasonable control and without the fault
or negligence of the first party.


 


9.15.        Non-Solicitation.  ProUroCare agrees not to solicit any Artann
employee or agent for employment by ProUroCare, irrespective of whether the
proposed employment by ProUroCare shall be in a different capacity than the
capacity in which such person provided services to or for Artann.


 


IN WITNESS WHEREOF, each of the parties has caused this License
Agreement to be executed in the manner appropriate to each.


 


	
   

  	
  ARTANN LABORATORIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Noune Sarvazyan

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: 

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROUROCARE MEDICAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Richard C. Carlson

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: 

  	
  CEO

  



 


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