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
1
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
