THEREBY, AND TO DISTRIBUTE, PERFORM, DISPLAY, USE,
MODIFY, IMPROVE AND MAKE DERIVATIVE WORKS BASED UPON SUCH RIGHTS, IN EACH CASE,
SOLELY WITHIN THE VITAL IMAGES FIELD OF USE, IN CONSIDERATION OF WHICH LICENSE
(WHICH SHALL CONTAIN THE FOREGOING TERMS AND OTHER REASONABLE TERMS AND
CONDITIONS WHICH ARE AGREED IN GOOD FAITH BY THE PARTIES) TOSHIBA SHALL BE
ENTITLED TO THE AGREED ROYALTIES (THE "NON-EXCLUSIVE LICENSE").
THE TERMS OF
THE NON-EXCLUSIVE LICENSE MAY CONTAIN, AMONG OTHER THINGS, THE REQUIREMENT THAT
VITAL IMAGES IMPLEMENT REASONABLE POLICIES AND PROCEDURES TO PROTECT TOSHIBA'S
CONFIDENTIAL INFORMATION.
THE PURCHASE PRICE FOR THE OPTION RIGHTS (THE
"PURCHASE PRICE") SHALL BE EQUAL TO THE FAIR MARKET VALUE OF THE OPTION RIGHTS.
WITHIN THIRTY (30) DAYS AFTER THE DETERMINATION OF THE PURCHASE PRICE, TOSHIBA
SHALL ELECT WHETHER TO EXERCISE THE OPTION TO PURCHASE THE OPTION RIGHTS AND
WHETHER TO GRANT THE NON-EXCLUSIVE LICENSE, BY GIVING VITAL IMAGES WRITTEN
NOTICE OF ITS INTENT TO DO SO (THE "OPTION NOTICE").
B.
AS SOON AS PRACTICABLE AFTER THE DELIVERY OF
THE OPTION NOTICE BUT NO LATER THAN SIXTY (60) DAYS THEREAFTER, (I) VITAL IMAGES
SHALL SELL AND TRANSFER THE OPTION RIGHTS TO TOSHIBA, FREE AND CLEAR OF ANY
LIENS OR OTHER ENCUMBRANCES (OTHER THAN THE NON-EXCLUSIVE LICENSE), AND TOSHIBA
SHALL PAY THE PURCHASE PRICE TO VITAL IMAGES IN IMMEDIATELY AVAILABLE US
DOLLAR-DENOMINATED FUNDS, AND (II) IF TOSHIBA AND VITAL IMAGES HAVE ELECTED TO
DO SO, TOSHIBA SHALL GRANT THE NON-EXCLUSIVE LICENSE TO VITAL IMAGES, SUBJECT TO
THE TERMS OF SECTION 9(A)(II), PROVIDED THAT THE TIME PERIOD TO CONSUMMATE THE
FOREGOING TRANSACTIONS MAY BE EXTENDED FOR SUCH PERIOD OF TIME AS IS REQUIRED TO
OBTAIN ANY NECESSARY REGULATORY APPROVALS IN CONNECTION THEREWITH (WITHOUT
PREJUDICE TO THE PARTIES' OBLIGATIONS UNDER SECTION 9(C) BELOW).
C.
EACH PARTY HERETO SHALL, AND SHALL CAUSE ITS
AFFILIATES TO, USE ITS REASONABLE COMMERCIAL EFFORTS TO TAKE ALL ACTION
NECESSARY OR APPROPRIATE TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
SECTION 9, INCLUDING ACKNOWLEDGING, EXECUTING AND/OR DELIVERING, IN A TIMELY
MANNER AND IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE OTHER PARTY, ANY
INSTRUMENTS OF TRANSFER AND ALL OTHER DOCUMENTS, INSTRUMENTS OR ASSURANCES AS
MAY REASONABLY BE REQUESTED BY
15
THE OTHER PARTY AND MAKING ANY FILINGS WITH ANY GOVERNMENTAL AUTHORITY
NECESSARY, APPROPRIATE OR REASONABLY REQUESTED BY THE OTHER PARTY TO ENABLE SUCH
OTHER PARTY TO SATISFY ITS OBLIGATIONS OR TO OBTAIN THE BENEFITS OF THE
TRANSACTIONS CONTEMPLATED BY THIS SECTION 9.
10.
Confidentiality and Use.
A Party shall not
disclose to any person or issue any press release or otherwise publish any
Confidential Information of the other Party by any means or in any form other
than any disclosure expressly permitted by this Agreement.
A Party shall not
use any Confidential Information of the other Party for any purpose, including
taking measures that would avoid creating a premature bar to a US or foreign
patent application or any other use detrimental to the other Party, other than
any use that is expressly permitted by this Agreement or any use