term is defined herein);
WHEREAS, the Company and the Purchaser are interested in establishing a
licensing relationship pursuant to which the Company shall grant the Purchaser
certain rights and licenses under the Licensed Marks.
NOW, THEREFORE, the Purchaser and the Company agree as follows:
1.
DEFINITIONS.
WHEN USED IN THIS AGREEMENT, EACH OF THE FOLLOWING
TERMS SHALL HAVE THE MEANINGS SET FORTH IN THIS SECTION 1.
1.1.
"AFFILIATE" SHALL MEAN, WITH RESPECT TO A PARTY, ANY PERSON THAT
CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH SUCH PARTY.
FOR
PURPOSES OF THIS SECTION 1.1, "CONTROL" SHALL REFER TO (A) IN THE CASE OF A
PERSON THAT IS A CORPORATE ENTITY, DIRECT OR INDIRECT OWNERSHIP OF FIFTY PERCENT
(50%) OR MORE OF THE STOCK OR SHARES HAVING THE RIGHT TO VOTE FOR THE ELECTION
OF DIRECTORS OF SUCH PERSON AND (B) IN THE CASE OF A PERSON THAT IS NOT A
CORPORATE ENTITY, THE POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER TO
DIRECT, OR CAUSE THE DIRECTION OF, THE MANAGEMENT OR POLICIES OF SUCH PERSON,
WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES BY CONTRACT OR OTHERWISE.
1.2.
"CONFIDENTIAL INFORMATION" SHALL MEAN NON-PUBLIC INFORMATION
DISCLOSED BY THE COMPANY TO THE PURCHASER RELATING TO THE PRODUCTS AND LICENSED
MARKS.
1.3.
"LICENSED MARKS" SHALL MEAN THE TRADEMARKS SET FORTH IN SCHEDULE
A.
1.4.
"PARTIES" SHALL MEAN THE PURCHASER AND THE COMPANY.
1.5.
"PARTY" SHALL MEAN THE PURCHASER OR THE COMPANY, AS THE CONTEXT
MAY REQUIRE.
1.6.
"PATENT LICENSE AGREEMENT" SHALL MEAN THE LICENSE
E-2
AGREEMENT BETWEEN THE PARTIES DATED AS OF [**].
1.7.
"PERSON" SHALL MEAN ANY NATURAL PERSON OR ANY CORPORATION,
COMPANY, PARTNERSHIP, JOINT VENTURE, FIRM OR OTHER ENTITY, INCLUDING WITHOUT
LIMITATION A PARTY.
1.8.
"PRODUCT" AND COGNATES THEREOF SHALL MEAN IMAGIFYTM (PERFLUBUTANE
POLYMER MICROSPHERES) IN ALL DELIVERY METHODS, FORMULATIONS AND DOSAGES.
1.9.
"TERRITORY" SHALL MEAN WORLDWIDE, EXCEPT FOR ALBANIA, ANDORRA,
ARMENIA, AUSTRIA, AZERBAIJAN, BELARUS, BELGIUM, BOSNIA AND HERZEGOVINA,
BULGARIA, CROATIA, CYPRUS, CZECH REPUBLIC, DENMARK, ESTONIA, FINLAND, FRANCE,
GEORGIA, GERMANY, GREECE, HUNGARY, ICELAND, IRELAND, ITALY, KAZAKHSTAN,
KYRGYZSTAN, LATVIA, LIECHTENSTEIN, LITHUANIA, LUXEMBOURG, MALTA, MONACO,
NETHERLANDS, NORWAY, POLAND, PORTUGAL, REPUBLIC OF MOLDOVA, ROMANIA, RUSSIAN
FEDERATION, SLOVAKIA, SLOVENIA, SPAIN, SWEDEN, SWITZERLAND, THE FORMER YUGOSLAV
REPUBLIC OF MACEDONIA, TURKEY, TADZHIKISTAN, TURKMENISTAN, UKRAINE, UZBEKISTAN,
UNITED KINGDOM AND YUGOSLAVIA.
1.10.
"THIRD PARTY" SHALL MEAN ANY PERSON OR ENTITY OTHER THAN A PARTY OR
ANY OF ITS AFFILIATES.
2.
LICENSE.
2.1.
GRANT.
THE COMPANY GRANTS TO THE PURCHASER AN EXCLUSIVE,
ROYALTY-FREE, PERPETUAL, IRREVOCABLE LICENSE, TO USE THE LICENSED MARKS IN THE
APPLICABLE JURISDICTIONS FOR THE PURPOSE OF MANUFACTURING, ADVERTISING,
MARKETING, SALE, AND DISTRIBUTION OF THE PRODUCTS IN THE TERRITORY, IN
CONNECTION WITH THE EXERCISE OF PURCHASER'S RIGHTS UNDER THE PATENT LICENSE
AGREEMENT.
PURCHASER SHALL BE ENTITLED TO GRANT ONE OR MORE SUBLICENSES UNDER
THE LICENSE GRANTED PURSUANT TO THIS AGREEMENT AND IN CONNECTION WITH
SUBLICENSES GRANTED UNDER THE PATENT LICENSE AGREEMENT, PROVIDED, HOWEVER, THAT
THE PURCHASER SHALL NOT BE PERMITTED TO SUBLICENSE RIGHTS BROADER THAN THOSE
GRANTED HEREUNDER.
2.2.
ADDITIONAL JURISDICTIONS.
TO THE EXTENT THAT THE PURCHASER