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Exhibit 10.20
Dated 28 February 2002
BIOCOMPATIBLES LIMITED
- and -
COOPERVISION INTERNATIONAL HOLDING COMPANY LP
- and -
THE COOPER COMPANIES, INC.
----------
PATENT AND TRADE MARK LICENCE
----------
TAYLOR JOYNSON GARRETT
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y 0DX
T:+44(0)20 7300 7000
F:+44(0)20 7300 7100
DX 41 London
Ref:JWR/DVP
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Index
<TABLE>
<CAPTION>
Clause No.
<S>
<C>
<C>
1.
Definitions and interpretation................................
3
2.
Grant.........................................................
5
3.
Term..........................................................
6
4.
Marking.......................................................
6
5.
Maintenance of Licensed Patents and Trade Marks...............
8
6.
Improvements..................................................
9
7.
Infringement..................................................
10
8.
Disclaimer of representations and warranties..................
11
9.
Indemnity.....................................................
12
10.
Confidentiality and disclosure of Confidential Information....
12
11.
Termination...................................................
13
12.
Effects of termination........................................
14
13.
Force majeure.................................................
15
14.
Severability..................................................
15
15.
Variation.....................................................
15
16.
Assignment....................................................
15
17.
Relationship between the parties..............................
16
18. Entire
agreement..............................................
16
19.
Notices.......................................................
16
20.
Waiver........................................................
17
21.
Cumulative remedies...........................................
17
22.
Rights of third parties.......................................
18
23.
Publicity.....................................................
18
24.
Precedence....................................................
18
25.
Counterparts..................................................
18
26.
Governing law and jurisdiction................................
18
SCHEDULE
1.................................................................
21
Patents being licensed........................................
22
SCHEDULE
2.................................................................
23
Trade Marks...................................................
23
SCHEDULE
3.................................................................
24
Existing Agreements...........................................
24
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THIS LICENCE is made on 28 February
2002
BETWEEN
(1) BIOCOMPATIBLES LIMITED an English
registered company number 1833264 whose
registered
office is at Chapman House, Farnham Business Park, Weydon Lane,
Farnham, Surrey,
GD9 8QL ("Licensor"); and
(2) COOPERVISION INTERNATIONAL HOLDING
COMPANY LP whose registered office is at
c/o The Cooper
Companies, Inc., 6140 Stoneridge Mall Road, Suite 590,
Pleasanton, CA
94588, United States of America ("Licensee"); and
(3) THE COOPER COMPANIES, INC. whose
principal office is at 6140 Stoneridge
Mall Road, Suite
590, Pleasanton, CA 94588, United States of America
("Cooper").
INTRODUCTION
(A) Licensor is registered as the
proprietor of the patents and the applicant
in respect of
the patent applications short particulars of which are set
out in schedule
1. In addition, Licensor is the registered proprietor of
the trade marks
and the applicant in respect of the trade mark applications
which are set
out in schedule 2.
(B) The parties are willing to enter
into a licence under such licensed patents
and trade marks
on the terms as set out in this agreement.
AGREED TERMS
1. Definitions and
interpretation
1.1 In this agreement the following
words and expressions have the following
meanings:
(a) "Confidential Information" means
any and all technical information,
data, materials and other information relating to the business
of
either of the parties, which one party (the "Disclosing Party")
provides to the other party (the "Receiving Party") hereunder
orally,
in writing or in any other tangible form, but shall not include
any
portion thereof which:
(i) is known to the
Receiving Party, as evidenced by the Receiving
Party's written records, before receipt thereof under this
agreement;
(ii) is disclosed to
the Receiving Party by a Third Party having a
right to make such disclosure;
(iii) is or becomes patented, published or otherwise part of
the
public domain through no fault of the Receiving Party; or
(iv) is independently
developed by or on behalf of the Receiving
Party, as evidenced by
the Receiving Party's written records,
without recourse to such Confidential Information disclosed
under this agreement.
(b) "Existing Agreements" means the
agreements referred to in schedule 3
and which shall refer to the Existing Agreements in their form as
at
the date of this agreement.
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(c) "Field" means vision correction,
soft contact lens care and cosmetic
applications.
(d) "Group" means in relation to a
party, its subsidiaries, its holding
company and any subsidiaries of such holding company. A company is
a
"subsidiary" of another company (its "holding company") if that
other
company, directly or indirectly, through one of its
subsidiaries:
(i) holds a
majority of the voting rights in it; or
(ii) is a member or
shareholder of it and has the right to appoint or
remove a majority of its board of directors or equivalent
managing body; or
(iii) is a member or shareholder of it and controls alone, pursuant
to
an agreement with other shareholders or members, a majority of
the voting rights in it; or
(iv) has the right to
exercise a dominant influence over it pursuant
to its constitutional documents or pursuant to a control
contract.
(e) "Improvement" means any
improvement, modification, adaptation or
alteration to the inventions the subject of the Licensed Patents
which
falls within a claim of the Licensed Patents which is developed
or
created within two years of the date of this agreement.
(f) "Infringer" means a third party
that infringes or makes unauthorised
use of any of the Licensed Patents or Trade Marks.
(g) "Infringement" means any
infringement or unauthorised use of any of
the Licensed Patents or Trade Marks by an Infringer within the
Field.
(h) "Licensed Patents" means the
patents and patents applications as
listed in Schedule 1 (which may be updated from time to time by
mutual
agreement of the parties) including any continuing
applications,
provisional applications, divisional applications or continuation
in
part applications relating to such patent applications and any
national or international patent applications claiming priority
from
such patent applications anywhere in the world and any reissue
or
renewals or re-examinations of such patents and any extensions of
the
exclusivity granted in connection with such patents.
(i) "Patent Licence Term" has the
meaning as specified in clause 3.1.
(j) "Product" means a soft contact
lens or a soft contact lens care
solution manufactured, marketed or sold for use within the
Field.
(k) "Share Sale Agreement" means the
International Share Sale Agreement
between Biocompatibles International plc, Aspect Vision
Holdings
Limited and The Cooper Companies, Inc. dated 15 January 2002.
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(l) "Trade Mark Licence Term" has the
meaning as specified in clause 4.1.
(m) "Trade Marks" means the trade
marks particulars of which are set out
in Schedule 2.
1.2 References to "this agreement"
include (exhaustively) this agreement and
any schedules to
it as may be varied from time to time in accordance with
its provisions.
The introduction forms part of this agreement but headings
are for ease of
reference only and shall not affect the meaning of this
agreement.
1.3 In this agreement, any reference
to:
(a) any statute or statutory provision
includes a reference to that
statute or statutory provision as amended, extended or re-enacted
and
to any regulation, order, instrument or subordinate legislation
under
the relevant statute or statutory provision;
(b) the singular includes a reference
to the plural and vice versa;
(c) any paragraph of the introduction,
clause, sub-clause or schedule is
to a paragraph of the introduction, clause, sub-clause or schedule
(as
the case may be) of or to this agreement;
(d) the word "include" or "including"
is, unless otherwise stated, to be
construed without limitation to the generality of the preceding
words;
and
(e) any person includes any reference
to a body corporate, unincorporated
association or a partnership and any reference to any party who is
an
individual is also deemed to include his respective legal
personal
representative(s).
1.4 In this agreement any reference to
a "law" includes common or customary law
and any
constitution, decree, judgment, legislation, order, ordinance,
regulation,
statute, treaty or other legislative measure, in each case of
any jurisdiction
whatsoever (and "lawful" and "unlawful" shall be construed
accordingly).
1.5 Except for the Existing
Agreements, each reference in this agreement to
this agreement
or any other agreement, document or deed shall be construed
as a reference
to this agreement or such other agreement, document or deed
as each of the
same may be amended, varied, novated or supplemented from
time to
time.
2. Grant
2.1 Licensor grants to Licensee, and
Licensee accepts, an exclusive, subject to
the rights
granted to third parties by virtue of the Existing Agreements,
royalty-free
licence under the Licensed Patents to research, develop,
manufacture,
use, supply, offer to supply, sell, dispose, import, keep and
otherwise
exploit Products for the Patent Licence Term in the
jurisdictions
covered by the
Licensed Patents.
2.2 Licensee may:
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(a) sub-license any of its rights
under this agreement to a member of its
Group; or
(b) sub-contract the manufacture of,
or other dealings in, the Products
under the licence granted in clause 2.1 to any third party
provided that
Licensee (1) ensures that there are included in the terms of
the sub-licence
or sub-contract obligations and undertakings on the part of
the sub-licensee
or subcontractors equivalent to those in this agreement
and (2) any
breach or other default by the sub-licensee or subcontractor
will be deemed
to be a breach or default by Licensee.
2.3 Save as expressly set out in this
agreement no licence under any patent or
other right is
granted.
3. Term
3.1 This agreement takes effect on the
date of this agreement and (unless
terminated under
clause 15) shall continue on a country by country basis in
respect of the
Licensed Patents until the later of the date of expiry of
the last to
expire of the Licensed Patents subsisting in each such country
respectively, on
which date it shall terminate (the "Patent Licence Term").
3.2 During the Patent Licence Term,
save with the prior written consent of
Licensee,
Licensor shall not make any use in relation to any Product of
any
materials
sourced from Seal Sands Chemicals Limited under the agreement
with that
company referred to in Schedule 3 herein where such use would
fall within any
claim of the Licensed Patents.
4. Marking
4.1 Licensee is hereby granted an
exclusive, subject to the rights granted to
third parties by
virtue of the Existing Agreements, royalty free licence to
use the Trade
Marks in relation to Products, which licence may be
terminated
immediately by notice:
(a) on the termination of this
agreement for any reason;
(b) in the event that Licensee is in
material and persistent breach of
clause 4.4
(the "Trade Mark
Licence Term").
4.2 Licensor shall not, during the
Trade Mark Licence Term, grant any licence
to use the Trade
Marks in relation to Products to any third party, except
with the prior
express written consent of Licensee.
4.3 During the Trade Mark Licence
Term, Licensee may at its option mark all
packaging and
advertising material relating to Products manufactured, sold
or disposed of
by it under this agreement with the Trade Marks and such
marking shall
be:
(a) accompanied by a notice stating
that the Trade Marks are the trade
marks of Licensor; and
6
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(b) used in accordance with this
clause 4.
4.4 In order to maintain the standards
which are essential for the protection
of the value of
the Trade Marks, during the Trade Mark Licence Term, where
Licensee
exercises the rights granted to it under clause 4.3 above,
Licensee shall
use (and shall ensure that permitted sub-licensees and
subcontractors
of Licensee use) the Trade Marks only in connection with the
supply,
disposal, advertising, distribution and promotion of Products
where
the Products
have been manufactured in accordance with good industry
practice and to
standards and procedures consistent with those used or
applied in
respect of the manufacture of Products prior to the date of
this
agreement by
Licensor.
4.5 During the Patent Licence Term, if
Licensee (or its permitted sub-licensees
and
subcontractors) makes any reference in any advertising, promotional
or
other materials
used for Products to the technology licensed herein under
the Licensed
Patents, Licensee shall (and shall ensure that its permitted
sub-licensees
and subcontractors) include with reasonable prominence a
notice in any
such advertising, promotional or other materials stating that
the technology
is licensed under patents owned by Licensor.
4.6 Licensee and its permitted
sub-licensees do not by virtue of this agreement
obtain or claim
any right, title or interest in or to the Trade Marks
except the
rights of use as are specifically set out in this agreement.
4.7 Licensee shall not (and shall
ensure that permitted sub-licensees and
subcontractors
of Licensee do not):
(a) adopt or use any trade mark,
symbol or device which incorporates or is
confusingly similar to, the Trade Marks or unfairly competes with
the
Trade Marks;
(b) at any time, whether during or
after termination of this Agreement,
use the Trade Marks as part of any corporate business or trading
name
or style of Licensee;
(c) use the Trade Marks in any way
which would tend to allow any of them
to become generic, lose their distinctiveness, become liable to
mislead the public, or be materially detrimental to or
inconsistent
with the good name, goodwill, reputation and image of Licensor;
(d) purport to be or represent to any
Third Party that Licensee is an
agent or representative of Licensor.
4.8 Licensee acknowledges and agrees
that:
(a) ownership of the Trade Marks, and
of the goodwill connected with and
symbolised by the Trade Marks, remains the property of Licensor,
and
use of the Trade Marks by Licensee is use on behalf of
Licensor;
(b) the goodwill in the Trade Marks
which Licensee derives by use of the
Trade Marks, or by being connected with the Trade Marks in the
course
of trade (whether arising at common law or otherwise), shall accrue
to
Licensor, and Licensee shall (before or after
7
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termination of this agreement) at Licensor's request and expense
(as
to out-of-pocket expenses only) assign the same, with all rights
of
action then accrued, to Licensor without payment.
4.9 Licensee shall not (and shall
ensure that permitted sub-licensees and
subcontractors of
Licensee do not), while this agreement is in force or
subsequently for
so long as any registration of or application for the
Trade Marks is
in force or Licensor is applicant for or registered as
proprietor of
the Trade Marks or any substantially similar marks in any
part of the
world:
(a) challenge Licensor's ownership of
the Trade Marks in any part of the
world; nor
(b) apply for registration of the
Trade Marks (or any confusingly similar
mark) for any goods or services in any part of the world.
5. Maintenance of Licensed
Patents and Trade Marks
5.1 Subject to clause 5.2, Licensor
shall:
(a) pay all associated costs and
official fees and shall use all
reasonable endeavours to obtain patents on the applications listed
in
schedule 1, and after grant and during the Patent Licence Term to
keep
in force:
(i) any patents so
granted; and
(ii) the patents listed in schedule 1, (except that where a
European
patent has been or is about to be granted for any country any
national patent or application for the same country may be
surrendered or allowed to be revoked); and
(b) during the Patent Licence Term pay
all renewal fees.
5.2 Subject to clause 5.3, during the
Patent Licence Term Licensor may:
(a) abandon any of the Licensed
Patents; or
(b) allow any of the Licensed Patents
to lapse;
(c) amend the specification of any of
the Licensed Patents
provided that it
first gives Licensee at least 90 days' notice in writing
of its intention
to do so. Where Licensor intends to abandon or allow to
lapse a Licensed
Patent (an "Abandoned Patent") such notice shall operate
to grant
Licensee an exclusive option, exercisable any time during the
period of 90
days from receipt by Licensee of such notice by notice in
writing to
Licensor, to have the Abandoned Patent assigned to it by
Licensor for one
pound sterling, subject to Licensor being released from
any and all
obligations in respect of such Abandoned Patent (including
those in clause
5.1).
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5.3 Licensor may abandon any one or
more of the Licensed Patents within the BCP
123 designation
(namely, patent 2098823) (a "BCP 123 Patent") without prior
notice to
Licensee provided that, in any particular case, there is in
force
within the
relevant jurisdiction a Licensed Patent within the BCP 19
designation
which provides at least equivalent coverage of scope as the BCP
123 Patent
insofar as it relates to the Licensee's rights under this
agreement.
5.4 During the Trade Mark Licence
Term, Licensor shall pay all renewal fees for
all
registrations of the Trade Marks and shall pay all associated costs
and
official fees
and shall use all reasonable endeavours to obtain
registrations of
the trade mark applications within the Trade Marks and
Licensee shall
provide, at the reasonable request and expense of Licensor,
all necessary
assistance in maintaining such registrations or prosecuting
such
applications in respect of the Trade Marks.
5.5 During the Trade Mark Licence
Term, if Licensor no longer wishes to
maintain any of
the Trade Marks in respect of any particular territory
Licensor shall
give 90 days' prior written notice of this fact to Licensee
and Licensee
shall have an option to purchase such Trade Marks for (pound)1
consideration.
5.6 During the Trade Mark Licence
Term, at Licensee's reasonable request and at
Licensee's
expense, Licensor shall provide reasonable assistance to
Licensee in
making applications to the relevant registries for either the
registration of
this a
