THE LOAN OF MONEY, EXTENSION OF CREDIT, PROVISION OF SERVICES, OR
SALE OR LEASE OF GOODS.
3.4.
TO THE EXTENT THAT IT MAY APPLY TO AGREEMENT, THE PARTIES WAIVE
ANY AND ALL RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542 (AS WELL AS ANY SIMILAR
STATUTE OR LAW IN ANY OTHER JURISDICTION), WHICH SECTION HAS BEEN DULY EXPLAINED
TO EACH OF THE PARTIES BY THEIR RESPECTIVE COUNSEL, AND WHICH READS AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
3.5.
ACUS, FOR ITSELF AND ITS CURRENT AND FUTURE AFFILIATES, COVENANTS
NOT TO SUE GEHC OR ITS AFFILIATES FOR INFRINGEMENT OF ANY PATENT ON ACCOUNT OF
GEHC OR ITS AFFILIATES' MANUFACTURE, USE, SALE, OR OFFER TO SELL OF OPTISON OR
SONAZOID IN THE TERRITORY FOR USE IN THE FIELD.
THIS COVENANT SHALL EXTEND TO
GEHC'S DISTRIBUTORS AND CUSTOMERS ON ACCOUNT OF THEIR PURCHASE, SALE, OR USE OF
SONAZOID OR OPTISON IN THE TERRITORY FOR USE IN THE FIELD.
3.6
GEHC, for itself and its current and future Affiliates, covenants
not to sue ACUS or its Affiliates for infringement of any patent on account of
ACUS or its Affiliates' manufacture, use, sale, or offer to sell AI-700 in the
Territory for use in the Field.
This covenant shall extend to ACUS's
distributors and customers on account of their purchase, sale, or use of AI-700
in the Territory for use in the Field.
3
3.7
IT IS THE INTENTION OF THE PARTIES TO SETTLE CURRENT AND POTENTIAL
INTELLECTUAL PROPERTY DISPUTES PERTAINING TO THE GEHC LICENSED PATENTS AND
PATENTS THAT ACUS HAS IN THE FIELD. IN THAT CONNECTION, THE PARTIES SHALL:
3.7.1.
WITHDRAW ALL CURRENT OPPOSITIONS BROUGHT AGAINST THE
OTHER'S PATENTS FOR THE FIELD IN COUNTRIES FOREIGN TO THE UNITED STATES;
3.7.2.
REFRAIN FROM FILING ANY FUTURE OPPOSITION OR OTHER
CHALLENGE AGAINST THE CLAIMS OF EACH OTHER'S PATENTS RELATING TO OPTISON,
SONAZOID OR AI-700
IN COUNTRIES FOREIGN TO THE UNITED STATES; AND
3.7.3.
REFRAIN FROM FILING ANY REQUESTS FOR INTERFERENCE,
REEXAMINATION, PROTEST OR OTHER CHALLENGE AGAINST THE CLAIMS OF EACH OTHER'S
PATENTS RELATING OPTISON, SONAZOID OR AI-700
IN THE UNITED STATES.
ARTICLE IV.
FEES, PAYMENTS, WARRANTIES, INDEMNIFICATION
4.1.
IN CONSIDERATION OF THE LICENSES AND RELEASE GRANTED IN SECTION 3,
ACUS SHALL MAKE THE FOLLOWING PAYMENTS TO GEHC:
4.1.1.
AN UPFRONT LICENSE FEE OF $10,000,000 PAID IN TWO
INSTALLMENTS OF:
A)
$5,000,000 WITHIN FIVE BUSINESS DAYS AFTER EXECUTION OF THIS AGREEMENT.
B)
$5,000,000 ON THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE,
SAID FEES TO BE NON-CONTINGENT AND NON-RETURNABLE.
4.1.2.
A LICENSE FEE OF $10,000,000 PAID IN TWO INSTALLMENTS
OF:
A)
$5,000,000 WITHIN FIVE BUSINESS DAYS AFTER THE EARLIER OF (I) RECEIPT OF
REGULATORY APPROVAL BY THE U.S. FOOD AND DRUG ADMINISTRATION TO MARKET AI-700 OR
(II) THE APPROVAL OF A MARKETING AUTHORIZATION APPLICATION IN EUROPE RELATED TO
AI-700.
B)
$5,000,000