Exhibit
10.24.1


 


FIRST AMENDMENT TO


 


LICENSE TRANSFER AND TRANSITION SERVICES AGREEMENT


 


THIS FIRST
AMENDMENT TO LICENSE TRANSFER AND TRANSITION SERVICES AGREEMENT (this “Amendment”)
is made and entered into this      day of February 2005, by
and among Refocus Group, Inc., a Delaware corporation (“Refocus”), Refocus
Ocular, Inc., a Delaware corporation that is a wholly-owned subsidiary of
Refocus (“Licensor”), CIBA Vision AG, a Swiss corporation (“Licensee”),
and CIBA Vision Corporation, a Delaware corporation (“CIBA”).  All initially capitalized terms not defined
herein shall have the meanings attributable to them in the License Transfer Agreement
(as defined herein).


 


RECITALS


 


WHEREAS, each
of Refocus, Licensor, Licensee and CIBA is a party to that certain License Transfer
and Transition Services Agreement, dated January 30, 2004 (the “License Transfer
Agreement”);


 


WHEREAS, Refocus,
Licensor, Licensee and CIBA desire to amend the License Transfer Agreement to
the extent provided in this Amendment; and


 


WHEREAS,
Refocus and Licensor desire to waive certain alleged defaults under the License
Transfer Agreement to the extent provided in this Amendment.


 


AGREEMENT


 


NOW THEREFORE,
in consideration of the mutual covenants and conditions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the execution and delivery hereof, the parties,
intending to be legally bound hereby, hereby agree as follows:


 


A.            Amendment
to the License Transfer Agreement. 
The License Transfer Agreement is hereby amended as follows:


 


1.             Subsection 1 of
Section D of the License Transfer Agreement is deleted in its entirety and
replaced with the following:


 


“1.           As
compensation for the termination of the License Agreement, the forgiveness of
any and all royalties paid under the License Agreement, and the services to be
performed under this Agreement by Licensee, CIBA and their respective
affiliates, and in consideration for the other promises and covenants of Licensee,
CIBA and their respective affiliates, Licensor shall pay to CIBA, in lawful
money of the United States of America, a royalty (“Royalty” or “Royalties”)
equal to four percent (4%) of Net Sales (as defined herein) from February    ,
2005, until the earlier of (i) December 31, 2009, and (ii) the date that CIBA
shall  


 


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have received
Royalty payments in the aggregate amount of $3,250,000 (the “Royalty Term”),
it being understood that the maximum amount of Royalties required to be paid to
CIBA hereunder shall be $3,250,000.  All Royalties
earned under this Agreement during a calendar quarter in the Royalty Term shall
be paid by Licensor to CIBA within 45 days of the last day of such calendar
quarter.  At the written request of CIBA,
Licensor will provide a reasonable accounting of all Royalties earned by CIBA
hereunder during the prior calendar quarter within 15 days following Licensor’s
receipt of such request.  The Chief
Financial Officer of Refocus will certify that such accounting is complete and
accurate in all material respects.  In
the event that the aggregate amount of Royalties paid to CIBA for the Royalty
Term is less than $3,250,000, Licensor shall pay to CIBA, on or prior to
February 15, 2010, the difference between the aggregate amount of Royalties
paid to CIBA under this Agreement and $3,250,000.  Notwithstanding anything to the contrary
herein, Licensor may terminate its obligation to pay Royalties hereunder by
paying to CIBA, on or before January 1, 2006, the amount of $2,000,000, less
the amount of Royalties previously paid to CIBA as of such date, and such payment
shall constitute full and final payment of any and all amounts due and payable
to CIBA or Licensee by Licensor or Refocus pursuant to this Section D.


 


For purposes
of this Agreement, “Net Sales” means the gross amount received by Licensor,
Refocus, their respective affiliates and approved sublicensees from third
parties for the sale or other disposition of the Products less (i) returns,
(ii) the cost of samples distributed, and (iii) discounts, credits or
allowances actually granted in the ordinary course of business and consistent
with Licensor’s or Refocus’ general practices. 
All non-U.S. sales shall be converted into U.S. Dollars using the
exchange rate quoted in the Wall Street Journal as of the last day of the
calendar quarter for which the calculation of Net Sales is made.”


 


B.            Waiver
and Liquidated Damages.


 


1.             Refocus and Licensor
hereby forever waive any and all defaults under Section C of the License
Transfer Agreement with respect to the non-performance of the Services by CIBA,
Licensee and their respective affiliates, including, but not limited to, any
failure to finalize and issue, or cause to be finalized and issued, on a timely
basis appropriate CE Mark certifications on the implant and blade;  provided, however, Refocus and
Licensor do not waive any default under Section C of the License Transfer
Agreement with respect to the performance or nonperformance of the Services in
violation of any applicable codes, ordinances or other requirements of
governmental or regulatory authorities having jurisdiction over the services
and work performed pursuant to the License Transfer Agreement (the “Non-Waived
Services”).  Notwithstanding anything
to the contrary herein, Refocus and Licensor shall be entitled to continue to
rely on the certifications, test results, conformance to Quality System
Regulations and other 


 


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representations
made with respect to the Products by CIBA, Licensee or their respective
affiliates (“Reliance Provisions,” and together with the Non-Waived
Services, collectively, the “Non-Waived Provisions”).


 


2.             In the event that Licensee,
CIBA or their respective affiliates shall default in their respective obligations
pursuant to Non-Waived Provisions or materially breach the Non-Waived
Provisions, Licensor’s and Refocus’ sole and exclusive remedy will be the
payment by Licensee or CIBA to Licensor or Refocus of an amount equal to Ten
Thousand and No/100 Dollars ($10,000.00), as liquidated damages.  Licensor, Refocus, Licensee and CIBA hereby
acknowledge and agree that Licensor’s and Refocus’ damages relating to Licensee’s,
CIBA’s or their respective affiliates’ default of the Non-Waived Provisions are
difficult to ascertain with certainty, and therefore, Licensor, Refocus,
Licensee and CIBA hereby agree that Ten Thousand and No/100 Dollars
($10,000.00) is a fair estimate of Licensor’s and Refocus’ damages arising out of,
or caused by, the default of the Non-Waived Provisions and that CIBA’s maximum
total liability to Licensor and Refocus pursuant to the License Transfer
Agreement and this Amendment shall be Ten Thousand and No/100 Dollars
($10,000.00), regardless of the number of instances of default or whether such
instances of default relate to the same or different Non-Waived Provisions.


 


C.            Miscellaneous.


 


1.             This Amendment, the
License Transfer Agreement, the Secrecy Agreement and any other agreement
contemplated herein or therein, and the exhibits attached hereto or thereto,
constitute the entire agreement between the parties pertaining to the subject
matter hereof and thereof, and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions of the parties,
whether oral or written, and there are no warranties, representations or other
agreements among the parties in connection with the subject matter hereof or
thereof, except as specifically set forth herein or therein.  This Amendment may only be amended or
modified by an instrument in writing executed by Licensor, Refocus, Licensee
and CIBA.  No waiver of any of the
provisions of this Amendment shall be deemed, or shall constitute, a waiver of
any other provision of this Amendment, whether or not similar, nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.


 


2.             By executing this Amendment,
Licensor, Refocus, Licensee and CIBA, for themselves and their respective
Designees, represent and warrant that each of them has the right and authority
to enter into and accept the terms and covenants of this Amendment.


 


3.             This Amendment shall
be construed and interpreted according to the laws of the State of Texas,
without regard to the conflicts of law provisions thereof.


 


4.             This Amendment may be
executed in several counterparts, each of which shall be deemed an original,
but all such counterparts shall together constitute one and the same agreement.


 


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5.             Except as specifically
provided herein, the License Transfer Agreement shall remain in full force and
effect.


 


IN WITNESS
WHEREOF, the parties hereto have duly executed, sealed and delivered this Amendment,
formed by four (4) pages, on the day and year first above written.


 


	
   

  	
  REFOCUS:

  	
  REFOCUS GROUP,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Terence A. Walts

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LICENSOR:

  	
  REFOCUS OCULAR,
  INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Terence A. Walts

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LICENSEE:

  	
  CIBA VISION AG

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CIBA:

  	
  CIBA VISION
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


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