**Exhibit10.24.1**

 

**FIRST AMENDMENT TO**

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**LICENSE TRANSFER AND TRANSITION SERVICES AGREEMENT**

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

 

**RECITALS**

 

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

 

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

 

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

 

**AGREEMENT**

 

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

 

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

 

1.             Subsection 1 ofSection D of the License Transfer Agreement is deleted in its entirety andreplaced with the following:

 

“1.           Ascompensation for the termination of the License Agreement, the forgiveness ofany and all royalties paid under the License Agreement, and the services to beperformed under this Agreement by Licensee, CIBA and their respectiveaffiliates, and in consideration for the other promises and covenants of Licensee,CIBA and their respective affiliates, Licensor shall pay to CIBA, in lawfulmoney 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 CIBAshall  

 

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have receivedRoyalty 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 toCIBA hereunder shall be $3,250,000.  All Royaltiesearned under this Agreement during a calendar quarter in the Royalty Term shallbe paid by Licensor to CIBA within 45 days of the last day of such calendarquarter.  At the written request of CIBA,Licensor will provide a reasonable accounting of all Royalties earned by CIBAhereunder during the prior calendar quarter within 15 days following Licensor’sreceipt of such request.  The ChiefFinancial Officer of Refocus will certify that such accounting is complete andaccurate in all material respects.  Inthe event that the aggregate amount of Royalties paid to CIBA for the RoyaltyTerm is less than $3,250,000, Licensor shall pay to CIBA, on or prior toFebruary 15, 2010, the difference between the aggregate amount of Royaltiespaid to CIBA under this Agreement and $3,250,000.  Notwithstanding anything to the contraryherein, Licensor may terminate its obligation to pay Royalties hereunder bypaying to CIBA, on or before January 1, 2006, the amount of $2,000,000, lessthe amount of Royalties previously paid to CIBA as of such date, and such paymentshall constitute full and final payment of any and all amounts due and payableto CIBA or Licensee by Licensor or Refocus pursuant to this Section D.

 

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

 

B.            Waiverand Liquidated Damages.

 

1.             Refocus and Licensorhereby forever waive any and all defaults under Section C of the LicenseTransfer Agreement with respect to the non-performance of the Services by CIBA,Licensee and their respective affiliates, including, but not limited to, anyfailure to finalize and issue, or cause to be finalized and issued, on a timelybasis appropriate CE Mark certifications on the implant and blade;  provided, however, Refocus andLicensor do not waive any default under Section C of the License TransferAgreement with respect to the performance or nonperformance of the Services inviolation of any applicable codes, ordinances or other requirements ofgovernmental or regulatory authorities having jurisdiction over the servicesand work performed pursuant to the License Transfer Agreement (the “Non-WaivedServices”).  Notwithstanding anythingto the contrary herein, Refocus and Licensor shall be entitled to continue torely on the certifications, test results, conformance to Quality SystemRegulations and other 

 

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representationsmade with respect to the Products by CIBA, Licensee or their respectiveaffiliates (“Reliance Provisions,” and together with the Non-WaivedServices, collectively, the “Non-Waived Provisions”).

 

2.             In the event that Licensee,CIBA or their respective affiliates shall default in their respective obligationspursuant to Non-Waived Provisions or materially breach the Non-WaivedProvisions, Licensor’s and Refocus’ sole and exclusive remedy will be thepayment by Licensee or CIBA to Licensor or Refocus of an amount equal to TenThousand and No/100 Dollars ($10,000.00), as liquidated damages.  Licensor, Refocus, Licensee and CIBA herebyacknowledge and agree that Licensor’s and Refocus’ damages relating to Licensee’s,CIBA’s or their respective affiliates’ default of the Non-Waived Provisions aredifficult 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 maximumtotal liability to Licensor and Refocus pursuant to the License TransferAgreement and this Amendment shall be Ten Thousand and No/100 Dollars($10,000.00), regardless of the number of instances of default or whether suchinstances of default relate to the same or different Non-Waived Provisions.

 

C.            Miscellaneous.

 

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

 

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

 

3.             This Amendment shallbe 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 beexecuted 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 specificallyprovided herein, the License Transfer Agreement shall remain in full force andeffect.

 

IN WITNESSWHEREOF, 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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