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EVLT MARKETING AND PROMOTION AGREEMENT
EVLT Marketing and Promotion Agreement entered into as of August 29,
2001 between Diomed, Inc., a Delaware corporation having its principal offices
at 0 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("Diomed"), Dr. Xxxxxx Min of New York, New
York (the "Doctor"), and Endovenous Laser Associates, L.L.C., a New York limited
liability company with a principal office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "LLC").
RECITALS
WHEREAS, Diomed is in the business of developing, marketing,
manufacturing and selling laser systems for medical applications;
WHEREAS, the Doctor is a named co-inventor and co-owner under a process
patent, application number 09/374,280, entitled "Endovascular Laser Device and
Treatment of Varicose Veins" (the "Process Patent Rights");
WHEREAS, the Doctor is the named inventor under a patent application
covering design and function of optical fibers, filed by Diomed, application
number 85.70.75122 15 June 2001, entitled medical laser device (such patent
application, together with all inventions, discoveries or improvements authored,
conceived, developed, reduced to practice, or otherwise obtained by the Doctor
that are referenced therein are referred to collectively as the "Fiber Patent").
WHEREAS: the Doctor is willing to grant to Diomed a nonexclusive
license to use of the Process Patent Rights and to assign to Diomed all rights
he has or may have in the Fiber Patent
WHEREAS, the Doctor is trained and knowledgeable in the use of lasers
for the endovenous treatment of varicose veins ("EVLT") (EVLT is a Diomed
Trademark);
WHEREAS, the Doctor has formed a single member LLC for the purpose of
conducting the activities contemplated by this Agreement;
WHEREAS, Diomed desires to market and sell lasers worldwide for use in
EVLT and is in the process of obtaining FDA approval for the use of its lasers
to perform EVLT;
WHEREAS, the Doctor, acting through the LLC, is willing to train other
physicians in the use of the Diomed laser for EVLT and is otherwise willing to
promote the use of the Diomed laser for EVLT all as more specifically set forth
in this Agreement;
WHEREAS, Diomed wishes to engage the Doctor, acting through his LLC, to
help maximize Diomed's sales worldwide of lasers for EVLT and the Doctor and the
LLC, wish to provide assistance to Diomed in connection with the marketing and
promotion of the lasers for EVLT, all on the terms and conditions herein set
forth;
WHEREAS, For the purpose of this contract EVLT is defined as any
internal Varicose Vein Treatment performed with a laser and a optical fiber;
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NOW, THEREFORE, the parties hereby agree as follows:
MARKETING OBLIGATIONS OF THE PARTIES
1.1 COVENANT TO PROMOTE THE PRODUCT FOR EVLT. Subject to the terms and
conditions of this Agreement, Diomed, the Doctor and the LLC shall work
together and use their respective best efforts to promote the use of
the Diomed lasers for EVLT throughout the world during the Term (as
hereinafter defined).
1.2 EXCLUSIVE PROMOTION. The Doctor and the LLC each agrees that, during
the Term (and thereafter as provided in Section 5.7), he and it shall
not actively promote to third parties any product for EVLT other than
Diomed lasers, optical fibers and associated EVLT kits.
1.3 PATENT RIGHTS.
1.3.1 The Doctor and the LLC warrant and covenant that they have not
and will not license the Process Patent Rights to any third
party during the Term and that they have not licensed the
Fiber Patent to any third party. The Doctor and the LLC
further covenant that they shall not become a party to any
agreement or arrangement (written or oral) with any other
co-inventor of the Process Patent Rights or any third party
that would adversely affect the rights of Diomed under the
license granted hereunder.
1.3.2 The Doctor hereby grants to Diomed, to the full extent that he
has authority to do so, a royalty-free, perpetual, worldwide,
non-exclusive license to use and to sublicense to others the
right to use the Process Patent Rights if and when such patent
issues._Notwithstanding the foregoing, the rights and license
granted by the Doctor hereunder shall terminate in the event
this Agreement is terminated due to Diomed's breach.
1.3.2 The Doctor hereby assigns, grants, conveys and transfers to
Diomed any and all right, title and interest he has or may
have in and to the Fiber Patent. The Doctor will from time to
time execute and deliver to Diomed such documentation and take
such other reasonable action, at Diomed's expense, which
Diomed may request in order to effectively carry out this
Section and invest in Diomed the Fiber Patent and title
thereto. The Doctor will assist Diomed in every proper way
(but at Diomed's expense) to obtain and from time to time
enforce rights with respect to the Fiber Patent in any and all
countries, and will execute all documents reasonably necessary
or appropriate for this purpose. In the event that Diomed is
unable for any reason whatsoever to secure the Doctor's
consent to any document reasonably necessary or appropriate
for any of the foregoing purposes, (including renewals,
extensions, continuations, divisions or continuations in
part), the Doctor hereby irrevocably designate and appoint
Diomed and its duly authorized officers and agents, as his
agents and attorneys-in-fact to act for and on his behalf and
instead of him, for the purpose of executing and filing any
such
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document and doing all other lawfully permitted acts to
accomplish the foregoing purposes with the same legal force
and effect as if executed by him.
1.3.4 The Doctor and LLC hereby acknowledge that "EVLT" is a
trademark of Diomed, and that neither the Doctor nor the LLC
has any rights therein. The Doctor and the LLC understand that
Diomed intends to register such trademark with the U.S. Patent
and Trademark Office, and agree to reasonably cooperate with
Diomed so as to permit Diomed to obtain such registration,
DUTIES OF THE DOCTOR
Subject to the terms and conditions of this Agreement, during the Term:
2.1 EVLT TRAINING OF OTHER PHYSICIANS. The Doctor, acting through the LLC,
agrees to use his best efforts to personally train other qualified
physicians, as set forth in EXHIBIT B, and identified and approved by
the President or the Director of Marketing of Diomed in the use of
Diomed lasers for EVLT. The Doctor will provide Diomed with a
certification in the form attached hereto as EXHIBIT A when each
physician's training is complete.
2.2 PROMOTIONAL ACTIVITIES. The Doctor, acting through his LLC, will use
his best efforts to perform the promotional activities set forth in
EXHIBIT B, as EXHIBIT B may be amended from time to time by written
consent of Diomed and the Doctor.
2.3 CONFIDENTIALITY. The Doctor and the LLC each acknowledge that
information about Product sales to be provided by Diomed to the Doctor
and the LLC hereunder and any other information provided to the Doctor
or the LLC and designated as confidential by Diomed at the time of
disclosure constitute confidential and proprietary information of
Diomed and the Doctor and the LLC each agree that he and it will not
use such information except in furtherance of the purposes of this
Agreement and will hold such information in strict confidence. The
obligations of the Doctor and the LLC under this Section 2.3 shall be
limited to a period of three years from the date of expiration or
earlier termination of this Agreement. Neither the Doctor nor the LLC
shall have any obligation of confidentiality with respect to any
information (a) in the public domain, other than by a breach of this
Section 2.3 by either of them, (b) rightfully received from a third
party without any obligation of confidentiality, or (c) generally made
available to third parties by Diomed without restriction on disclosure.
2.4 PERSONAL OBLIGATION Notwithstanding the Doctor's use of the LLC to
hold patent rights and provide services under this Agreement, all
obligations of the Doctor and the LLC under this Agreement shall be
joint and several and such obligations may be fully enforced by Diomed
against either the Doctor or the LLC should the other party breach
this Agreement. Notwithstanding anything to the contrary contained in
this Agreement, in no event shall the total liability of the Doctor
and/or the LLC for damages arising out of this Agreement exceed the
aggregate amount of consideration received by the Doctor and/or the
LLC
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(whether in cash, or exercised options or shares of capital stock)
under this Agreement (it being understood that such limitation on
liability for damages shall not limit Diomed's ability to seek
injunctive or other equitable relief against either the Doctor or
the LLC in the event the Doctor breaches his obligations under
Sections 1.2, 1.3.1, 1.3.3, 1.3.4 or 2.3).
OBLIGATIONS OF DIOMED
Subject to the terms and conditions of this Agreement, during the Term
Diomed agrees as follows:
3.1 INITIAL PAYMENT. With in 60 days of execution of this Agreement, Diomed
will pay the LLC the sum of **CONFIDENTIAL TREATMENT REQUESTED**
3.2 PAYMENT FOR TRAINING. Within thirty (30) days of receipt of certification
in the form of EXHIBIT A from the Doctor that training of physicians
pursuant to Section 2.1 has been completed, Diomed will pay the LLC
**CONFIDENTIAL TREATMENT REQUESTED** for each such approved training
session per licensed physician. Within thirty (30) days of submission of
receipts, Diomed will reimburse up to **CONFIDENTIAL TREATMENT REQUESTED**
for foreign travel and **CONFIDENTIAL TREATMENT REQUESTED** for domestic
travel for pre-approved lectures/workshops where discussion or presentation
on EVLT is on the agenda .
3.3 PAYMENTS BASED ON PRODUCT SALES.
3.3.1 From the Effective Date until termination of this Agreement (by
expiration or earlier termination) or until total payments
hereunder reach **CONFIDENTIAL TREATMENT REQUESTED**, whichever
first occurs, and except as described in Section 3.3.2 below,
Diomed will pay the LLC **CONFIDENTIAL TREATMENT REQUESTED** for
each Product (as hereinafter defined, and other than OEM Sales)
sold in North America (defined as Canada and the United States)
and **CONFIDENTIAL TREATMENT REQUESTED** for each Product (other
than OEM Sales) sold in the rest of the world. Payment shall be
made within thirty (30) days of the end of each calendar quarter
following the Effective Date. In the case of OEM Sales (as defined
below), Diomed will pay to the LLC **CONFIDENTIAL TREATMENT
REQUESTED** for each Product sold in North America and
**CONFIDENTIAL TREATMENT REQUESTED** for each Product sold in the
rest of the world. An "OEM Sale" shall mean any sale of a Product
to a purchaser under an agreement where the Product is delivered
without a Diomed logo and the purchaser has the rights to
separately brand the Product. Reductions shall be allowed for
returned Products and uncollected accounts. Each payment will be
accompanied by a report as set forth in Section 3.8.
3.3.2 Notwithstanding the payments provided under Section 3.3.1 above,
the parties agree that Diomed may reduce such specified payments
should Diomed earn an overall **CONFIDENTIAL TREATMENT REQUESTED**
on the Products of less that **CONFIDENTIAL TREATMENT REQUESTED**.
Should on a quarterly basis, Diomed's **CONFIDENTIAL TREATMENT
REQUESTED** fall below **CONFIDENTIAL TREATMENT REQUESTED** then
the payments specified in Section 3.3.1 above shall be adjusted as
follows:
**CONFIDENTIAL TREATMENT REQUESTED**
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In no case shall the reduction exceed **CONFIDENTIAL TREATMENT
REQUESTED**. For purposes of this Section, Gross Margin shall be
determined quarterly under generally accepted accounting principles
in the United States, with the payments under this Agreement
included in cost of sales. **CONFIDENTIAL TREATMENT REQUESTED**.
Should a reduction under this Section apply in any quarter, Diomed
will provide documentation for the reduction and the LLC may
request that Diomed's independent auditors (at Diomed's expense)
and as part of the annual audit, certify such computation. Such a
request must be made in writing within 45 days of year end.
3.3.3 In addition to payments for Products as provided for above, Diomed
shall pay the LLC **CONFIDENTIAL TREATMENT REQUESTED** for each
optical fiber manufactured and sold by Diomed utilizing the unique
fiber design components of the Fiber Patent (a "Qualified Fiber").
Where a Qualified Fiber is included in a disposable Kit which
contains other components the amount paid shall be **CONFIDENTIAL
TREATMENT REQUESTED** for each kit which includes a Qualified
Fiber.
3.4 CERTAIN DEFINITIONS. For purposes of this Agreement, "Product" or
"Products" means the Diomed D15 plus and D30 plus lasers (and equivalents)
that are sold with an EVLT application box and excludes all fibers,
disposables and related services.
3.5 INITIAL OPTION GRANT. In consideration of the undertakings by the Doctor
and the LLC herein, Diomed hereby grants to the LLC an option (the
"Initial Option") to purchase 30,000 shares of Diomed Common Stock at a
purchase price of $2.25 per share under the 2001 Stock Option Plan adopted
by Diomed (the "Plan"). The Initial Option shall be fully vested on
issuance and exercisable for a period of two (2) years from the date of
grant. The Initial Option will be non transferable and may only be
exercised on the condition that the Doctor executes the Stockholder
Agreement attached herewith as Exhibit C (as it may be amended from time
to time). The Initial Option (and shares issued on exercise thereof) shall
also be subject to all provisions of the Certificate of Incorporation and
Bylaws of Diomed, or successor entity, as from time to time revised or
amended or terms of any conversion of the options in connection with a
merger or acquisition with another company so long as the holder is
treated on a xxxx xxxxx basis.
3.6 PRODUCT OPTIONS. For each Product sold by Diomed beginning on the
Effective Date and ending November 15, 2005, Diomed will grant to the LLC
under the Plan an option (a "Product Option") to purchase twenty five (25)
shares of Common Stock of Diomed up to an aggregate maximum of 180,000
shares (which number is inclusive of shares subject to options granted
under Section 3.5). The Product Options shall be granted as of the end of
each calendar quarter in which Product sales were sold (subject to
adjustment for returns and uncollected accounts) and shall be fully vested
on grant. The Product Options issued hereunder shall be subject to the
same terms as the Initial Options issued under Section 3.5 except that the
exercise price of each quarterly grant shall be based on fair market value
of Diomed common stock at the time of grant as determined at the sole
discretion of the Board of Director and consistent with other Employee
options (if any) granted during the quarter.
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3.7 QUARTERLY REPORT. Diomed shall provide the Doctor with a report within
thirty (35) days of the end of each calendar quarter specifying the
number of Products sold for EVLT during the immediately prior calendar
quarter (and specifying sales in North America and sales in the rest
of the world), the number of stock options earned as a result of such
sales, the exercise price of the stock options, and the aggregate
number of stock options awarded the LLC to the date of the report. For
purposes of the Product Options, the number of Products sold in any
given quarter shall equal the number of Products for which Diomed is
obligated to make a payment under Section 3.3.
3.8 ANNUAL VERIFICATION. Within ninety (90) days of the close of each
calendar year, Diomed will provide the Doctor with an annual report of
the number of Products sold in the immediately preceding calendar
year, verified by Diomed's auditors. The Doctor and/or the LLC shall
have the right to audit Diomed's books and records related to the
transactions contemplated under this Agreement. In addition to any
other sums that may be owing to the Doctor and/or the LLC as a result
of such audit, Diomed shall be responsible for the cost of such audit
in the event a discrepancy of five percent (5%) of more is documented
by the Doctor's and/or LLC's auditor.
4 INVESTMENT REPRESENTATIONS
4.1 OPTION GRANTS SUBJECT TO PLAN. The Doctor and the LLC each
acknowledges that the options granted and to be granted to the LLC
hereunder are being granted under and are subject to the Plan. All
references to numbers of shares or price per share under this
Agreement shall be subject to adjustment in a number of circumstances
such as merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split, combination of shares,
exchange of shares, change in corporate structure or the like, as
provided in the Plan.
4.2 INVESTMENT INTENT. The Doctor and the LLC each agrees that the LLC is
acquiring and will acquire the Options and the shares of Common Stock
issuable thereunder for its own account and not with a view to, or
for sale in connection with, any "distribution" thereof within the
meaning of the Securities Act of 1933, as amended (the "Securities
Act").
4.3 ADEQUATE INVESTIGATION. The Doctor and the LLC each acknowledges that
Diomed has granted him and it the opportunity to make a thorough
investigation of the business affairs of Diomed and he and it has
availed himself and itself of such opportunity, either directly or
through his or its authorized representatives. In particular, Diomed
has made available to the Doctor and the LLC and their respective
representative, access to Diomed officers and employees for the
purpose of discussing and responding to questions concerning Diomed
and its business and Diomed has furnished to the Doctor and the LLC
all agreements, financial statements and other documents pertaining
to Diomed and its business requested by him or it. The Doctor and the
LLC each acknowledges that he and it has made an independent
investigation of Diomed and an independent evaluation of the risks
and merits of acquiring the Options and entering into this Agreement
and has received all the information that he or it has requested in
connection with deciding whether to accept the Options.
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4.4 INVESTMENT SOPHISTICATION. The Doctor and the LLC each acknowledges
that he and it (a) is knowledgeable and experienced in business
matters, (b) is capable of independently evaluating the risks and
merits of accepting and exercising the Options granted hereunder, (c)
has independently determined that the investment is a suitable
investment for the LLC, and (d) has sufficient financial resources to
bear the loss of the LLC's investment in the Options.
4.5 RESTRICTED SECURITIES. The Doctor and the LLC each acknowledges and
understands that, because neither the Options nor the Common Stock to
be received upon exercise of the Options will be registered under the
Securities Act or applicable state securities laws (even after Diomed
becomes a public company), the LLC will not be able to dispose of the
Common Stock received upon exercise of the Options unless the sale of
the shares of Common Stock received by it is registered or exemptions
from such registration are available. The Doctor and the LLC each
further acknowledges and understands that neither he nor it has any
right to require Diomed to register the Common Stock the LLC receives
upon exercise of any Options granted hereunder under the Securities
Act or applicable state securities laws and that the Company may, as
a condition to the transfer of Common Stock received upon exercise of
the Options, require an opinion of counsel, in form and substance
reasonably satisfactory to Diomed to the effect that the proposed
transfer does not result in violation of the Securities Act or
applicable state securities laws, unless such transfer is covered by
an effective registration statement under the Securities Act and all
applicable state securities laws. In furtherance of the above, each
certificate representing shares of Common Stock received upon
exercise of Options will bear a legend to that effect as well as any
legend required by the Stockholder Agreement signed by the LLC.
4.6 DOMICILE. The legal domicile of each of the Doctor and the LLC is New
York.
4.7 ACCREDITED INVESTOR. The LLC and the Doctor are an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended, and was not formed for
the purpose of acquiring the Options.
TERM AND TERMINATION
5.1 TERM. The Agreement shall be effective as of August 29, 2001 (the
"Effective Date") and, unless earlier terminated as provided herein,
shall automatically terminate on November 16, 2010 (the period from
the Effective Date until expiration or earlier termination of this
Agreement being referred to herein as the "Term").
5.2 TERMINATION BY DIOMED. This Agreement may be terminated in its
entirety by Diomed effective upon the giving of notice of termination
to the Doctor no later than January 31 following the end of any
calendar year beginning with calendar year 2001 in which at least
**CONFIDENTIAL TREATMENT REQUESTED** Products are not sold worldwide
for EVLT.
5.3 TERMINATION BY THE DOCTOR AND THE LLC. This Agreement may be
terminated by the Doctor (on behalf of himself and the LLC) effective
upon the giving of notice of termination to Diomed no later than
January 31 following the end of any calendar year beginning with
calendar year 2001 in which at least **CONFIDENTIAL TREATMENT
REQUESTED** Products are not sold worldwide for EVLT. Also, this
Agreement may be terminated by the Doctor (on behalf of himself
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and the LLC) at any time after the **CONFIDENTIAL TREATMENT
REQUESTED** anniversary of the Effective Date effective upon the
giving of six (6) months prior written notice of termination.
5.4 TERMINATION FOR BREACH. Diomed, on the one hand, and the Doctor (on
behalf of himself and the LLC), on the other, may terminate this
Agreement if the other defaults in the performance of any agreement,
condition or covenant in this Agreement and this default is not
remedied within sixty (60) days after written demand to remedy the
same has been given to the other party. For purposes of this Section
5.4, failure by the Doctor to perform his agreed-upon duties as set
forth in EXHIBIT B shall constitute a breach of this Agreement. Upon
termination for default, the non-defaulting party shall be free to
pursue any and all remedies available to him or it. No remedy is
intended to be exclusive and each remedy shall be cumulative.
5.5 TERMINATION UPON DEATH OR DISCONTINUATION OF MEDICAL PRACTICE OF THE
DOCTOR.
This Agreement shall terminate upon the death of the Doctor. Also,
Diomed, on the one hand, and the Doctor (on behalf of himself and the
LLC), on the other, may terminate this Agreement if the practice of
medicine ceases to be the Doctor's primary professional activity.
5.6 SURVIVAL OF PATENT RIGHTS ON TERMINATION. Unless this Agreement is
terminated due to Diomed's breach, the parties agree that Diomed's
rights under Section 1.3 (and the license and assignment of rights
contained therein) shall survive such termination without limitation.
With regards to the Process Patent, such retained rights shall be non
exclusive.
5.7 SURVIVAL. Notwithstanding termination of this Agreement, Diomed's
obligations under Sections 3.2, 3.3 and 3.6 shall survive with
respect to Product sales for EVLT prior to the date of termination,
and the obligations of the Doctor and the LLC under Section 1.2 shall
survive until November 16, 2010. Article IV, Sections 6.2 and 6.3 and
Sections 7.7 and 7.8 shall survive termination of this Agreement.
6 REPRESENTATIONS, WARRANTS AND INDEMNIFICATION
6.1 AUTHORITY AND ENFORCEMENT. Each party to this Agreement warrants that
he or it has full right, power and authority to enter into this
Agreement and to perform the covenants and agreements contemplated
hereby, that this Agreement has been duly executed and delivered by
him or it and that the Agreement is enforceable against him or it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other creditors' rights generally and the
availability of equitable remedies, including specific performance.
6.2 PATENT RIGHTS. The Doctor and the LLC represent and warrant that (i)
the Doctor is a named and actual co-inventor of the Process Patent
Rights, (ii) the Doctor has provided Diomed with an accurate and
complete copy of all written documents relating to the Process Patent
Rights that are in his possession or control and a written summary of
all other agreements and arrangements (whether written or oral)
relating to the Process Patent Rights of which he has knowledge, and
(iii) neither the Doctor nor the LLC is a party to any agreement or
arrangement (whether written or oral) with any other co-inventor of
the Process Patent Rights or any third party that would prohibit the
Doctor from granting the license to the Process Patent Rights granted
hereunder or require the
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approval or consent of any other co-inventor or any third party to
the grant of such license. The Doctor and the LLC further represent
and warrant that the Doctor is the inventor of the Fiber Patent
Rights and that he has the right to grant the rights to the Fiber
Patent hereunder. The Doctor and the LLC agree to indemnify and hold
Diomed harmless from any liability, loss or cost (including
reasonable attorney's fees) arising out of or resulting from any
breach of any representation or warranty in this Section 6.2.
6.3 LIMITATION ON LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN AND
IN ANY WARRANTY DELIVERED WITH THE PRODUCT, DIOMED GIVES NO
WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCT INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL DIOMED ON THE ONE HAND OR THE
DOCTOR AND/OR THE LLC ON THE OTHER BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES THAT THE OTHER MAY
SUFFER DIRECTLY OR INDIRECTLY AS A RESULT OF THE SALE OF THE PRODUCT
FOR EVLT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE DOCTOR AND/OR
THE LLC FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE
AGGREGATE AMOUNT OF CONSIDERATION RECEIVED BY THE DOCTOR AND/OR THE
LLC (WHETHER IN CASH, OR EXERCISED OPTIONS OR SHARES OF CAPITAL
STOCK) UNDER THIS AGREEMENT
MISCELLANEOUS
7.1 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties and to their respective successors, personal
representatives, executors or assigns. Neither this Agreement nor any
part of it shall be assignable by the Doctor or the LLC to any third
party. Diomed may assign this Agreement to a parent, subsidiary or
other affiliate and to any party that acquires the EVLT business from
Diomed, provided that such assignee assumes the obligations of Diomed
hereunder in a written instrument delivered to the Doctor and the
LLC.
7.2 NOTICES. Unless otherwise agreed in writing, all notices, requests
and other communications pursuant to this Agreement shall be in
writing and addressed as follows:
If to Diomed:
Diomed, Inc. 0
Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
If to the Doctor or the LLC:
Endovenous Laser Associates, L.L.C.
000 Xxxx 00xx Xxxxxx Xxx Xxxx, X.X.
00000 Attn: Xxxxxx Min, M.D.
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Any notice or other communication under this Agreement shall be
deemed to be sufficiently given if made in writing addressed as above
and delivered (a) by hand or by recognized overnight delivery
service, (b) by first class registered or certified mail, return
receipt requested, or (c) by facsimile or electronic mail (with a
confirmation copy dispatched as provided in subsection (a) or (b)
above). Notice shall be deemed to have been given upon delivery if
delivered under subsection (a) or (c) and at the expiration of five
(5) business days after the date on which a notice is posted under
subsection (b).
7.3 ENTIRE AGREEMENT. This Agreement, together with the Exhibits attached
hereto, represents the entire agreement between the parties with
respect to the subject matter hereof and supersedes any other
agreement or understanding, written or oral, that the parties
heretofore may have had with respect thereto, including, without
limitation, that certain Term Sheet dated as of December 18, 2000.
7.4 AMENDMENT. No amendment or other variation of this Agreement will be
binding unless duly executed by an instrument in writing signed by
the parties hereto.
7.5 NO WAIVER. Failure by any party to enforce the performance of any of
the provisions of this Agreement against another party shall neither
constitute a waiver by it or him of its or his rights hereunder nor
affect the validity of this Agreement in any way. Any waiver by a
party hereto of a breach of this Agreement on the part of another
party shall not constitute a precedent as to any subsequent breach on
the part of such other party.
7.6 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby.
7.7 APPLICABLE LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without application of Massachusetts
law with respect to conflicts of law.
7.8 DISPUTE RESOLUTION. Any dispute that may arise between the parties in
connection with or arising out of this Agreement must first be
addressed by the President of Diomed and the Doctor who shall make a
good faith effort to resolve the dispute. If, within thirty (30) days
of written notice that a dispute exists there has been no resolution
of the dispute, then such dispute shall be resolved exclusively by
arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in force. The arbitration
shall take place in Boston, Massachusetts, or New York, New York, and
shall be final and binding on the parties, shall not be subject to
any appeal and shall address the question of costs of arbitration and
the matters relating thereto. Judgment upon the award rendered may be
entered in any court having jurisdiction, or application may be made
to such court for a judicial recognition of the award or any order of
enforcement thereof, as the case may be.
7.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which shall be considered one and the same instrument.
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7.10 HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not be used to interpret this Agreement or for any
other purpose.
IN WITNESS WHEREOF, the parties have executed his Agreement as of
the date first above written.
DIOMED, INC.
By; XXXXX XXXXX: Title: CEO /s/ DR. Xxxxxx Min
-------------------------- -----------------------------
XXXXX XXXXX DR. Xxxxxx Min
ENDOVENOUS
Title: CEO LASER ASSOCIATES, L.L.C.
By.
Print Name:
Title: Manager
EXHIBIT A
CERTIFICATION OF COMPLETION OF
EVLT TRAINING
EVLT TRAINING CERTIFICATE
This document certifies that Dr.
Street: City:
ZIP, State:
Phone:
e-mail:
has successfully completed a one day training session on performing an EVLT
procedure.
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The Training was performed by Dr. at the following location:
Street:
City:
ZIP, State:
Phone:
e-mail:
We thank you for your participation
This certificate merely certifies that the above named physician has completed
the training session described above, and does not certify that such
physician possesses any particular level of skill, competency
or experience with respect to an EVLT procedure.
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[Logo] DIOMED
EXHIBIT B
DUTIES OF DR. MIN
To train between 8 and 12 doctors per calendar year beginning with 2001, subject
to bona fide pre-existing commitments.
If requested by Diomed, to speak and lecture on the use of the Product for EVLT
at a minimum of two major medical meetings each year, at least one of which
shall be in an international forum.
To be available to answer questions from Diomed personnel related to EVLT for up
to five (5) hours per month during normal working hours as agreed upon by the
parties and further agrees to devote up to three (3) hours per month to
providing e-mail support with respect to EVLT as requested by Diomed.
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