EXHIBIT 10.53
EXCLUSIVE LICENSE AGREEMENT WITH DTLL, INC.
This
exclusive license agreement ("Agreement") is made and entered into
as
of the 9th day of November,
2004, by and between GelStat Corporation (the
"Shareholder"), and GS
Pharma, Inc., a Minnesota corporation (the "Company").
R E C I T A L S:
A.
The
Shareholder is the holder of certain patents,
provisional
patents
and patent applications listed on Schedule A ("Patents")
relating to certain pharmaceutical and/or homeopathic compounds
and
dosing and delivery systems intended for use by humans
(the
"Intellectual Property"); and
B.
The
Shareholder, in consideration of the issuance to it of shares
in
the Company, desires to grant to the Company an exclusive license
to
the Intellectual Property within the Field of Use, as defined
on
Schedule A, subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing Recitals and the
mutual
promises and agreements
contained herein, the parties agree as follows:
1. License
Grant. The Shareholder hereby grants to the Company an
exclusive, royalty-free,
perpetual, worldwide right and license to the
Intellectual Property for the
Field of Use (the "License"), with the right to
sublicense, to make, have
made, use, sell or otherwise dispose of products
covered by the License
("Products"). The License covers Patents and Patent
renewals, reissues,
divisions, substitutions, continuations,
continuations-in-part,
extensions or improvements. The License also covers any
and all patent applications
first filed with the United States Patent and
Trademark Office (USPTO) or
any appropriate international organization on or
before November 9, 2009. For
purposes of understanding and interpreting this
Agreement, the future patent
applications and filings shall be considered as
"Intellectual Property" and
any resulting patent a Patent covered hereby, along
with any subsequent renewals,
reissues, divisions, substitutions, continuations,
continuations-in-part,
extensions or improvements of such future filed patents.
The License granted hereby
precludes license of the Intellectual Property for
the Field of Use by the
Shareholder to any other person or commercial
exploitation of the
Intellectual Property in the Field of Use by the
Shareholder. The Shareholder
retains unrestricted rights to the Intellectual
Property outside of the Field
of Use and the right to use the Intellectual
Property within the Field of
Use for its own operations (e.g. for research and
development). This License
may be assigned, transferred or sold by the Company
only with the written, prior
consent of the Shareholder. This License, the
Patents, and the Intellectual
Property are freely transferable by the
Shareholder.
2.
Development and Commercialization. The Company shall be
solely
responsible for taking the
steps necessary or proper to develop and
commercialize the
Intellectual Property in the Field of Use and agrees to
use
its best efforts to do so as
quickly as possible.
3.
Improvements. All improvements to the Intellectual
Property
("Improvements") shall be the
sole property of the Shareholder, regardless of
the identity of the maker of
the Improvements. However, the Improvements
pertaining to the Field of
Use are hereby licensed to the Company as a part of
the License.
4.
Acknowledgments and Covenants. The Company acknowledges that
the
Shareholder is the sole and
exclusive owner of the Intellectual Property and
that nothing in this
Agreement shall be deemed to convey any rights or
proprietary interest in same
to the Company, other than the specific License
granted hereunder. The
Company and its officers, agents, servants, employees,
attorneys, subsidiaries,
successors, assigns and any person or entity in active
concert or participation with
the Company agrees not to challenge or cause to be
challenged, directly or
indirectly, the ownership, proper naming of inventors,
validity or enforceability of
any Patent rights of the Shareholder.
<PAGE>
5.
Infringement.
(a) The Company shall give notice to the Shareholder of
any
discovered
third party infringement of the Patents in the Field of Use.
In
the event
that the Company does not take appropriate action to stop
or
prevent
such infringement within sixty (60) days after giving such
notice
and diligently pursue such action,
the Shareholder has the right to take
appropriate action to stop and prevent the infringement, including
the
right to
file suit.
(b) In the event that the Shareholder files suit to stop
infringement or defends any action against the validity of any
Patents,
the
Company shall indemnify and hold the Shareholder harmless against
all
liability,
expense and costs, including attorneys' fees incurred as
a
result of
any such suit.
(c) The parties hereby agree to cooperate with each other in
the
prosecution of any such legal actions or settlement actions
undertaken
under this
section and each will provide to the other all pertinent
data
in its
possession which may be helpful in the prosecution of such
actions;
provided,
however, that the party in control of such action shall
reimburse
the other party for any and all costs and expenses in
providing
data and
other information necessary to the conduct of the
action.
(d) The party having filed such action shall be in control of
such
action and
shall have the right to dispose of such action in
whatever
reasonable
manner it determines to be the best interest of parties
hereto,
except
that any settlement which af
