INVESTMENT AGREEMENT
EXHIBIT 10.54
EXECUTION
COPY
This
INVESTMENT AGREEMENT (this “Agreement”)
is made and effective as of the 31st day of
March, 2008 (the “Effective
Date”), by and between MiMedx Group, Inc., a Florida
corporation (the “Company”),
and SaluMedica, LLC, a Georgia limited liability company (“SaluMedica”).
RECITALS
A.
The Company desires to sell and issue, and SaluMedica desires
to subscribe and purchase, shares of the Company’s Common Stock, par value
$0.001 per share (the “Common
Stock”), on
the terms and conditions contained herein;
B.
In connection with the transactions contemplated by this Agreement,
the Company’s wholly-owned subsidiary, MiMedx, Inc. (the “Subsidiary”), and
SaluMedica are entering into (i) that certain Technology License Agreement of
even date herewith (the “License
Agreement”) concerning “Licensed Technology” (as defined therein) for all
uses of “surgical sheets” (as further defined therein) and (ii) that certain
Trademark License Agreement of even date herewith (the “Trademark
Agreement”) related to the License Agreement; and
C.
All capitalized terms used herein but not defined herein shall have the
meanings given to them in the License Agreement.
AGREEMENT
NOW
THEREFORE, in consideration of the premises, which are incorporated herein by
this reference, the mutual promises and covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, mutually agree as follows:
1.
Issuance of Common
Stock.
1.1. Issuance of Closing
Shares. Subject to the terms and conditions of this Agreement,
the Company shall and does hereby sell and issue to SaluMedica, and SaluMedica
shall and does hereby subscribe and purchase from the Company, Four Hundred
Thousand (400,000) shares of Common Stock
(the “Closing
Shares”) for a total consideration of the license and other rights
granted by SaluMedica to the Company and the Subsidiary under the License
Agreement and the Trademark Agreement (the “SaluMedica
Consideration”).
1.2. Issuance of Additional
Shares upon Certain Milestones. In addition to the Closing
Shares provided for in Section 1.1, the Company shall issue to SaluMedica, if
and only if SaluMedica is entitled thereto under the terms and conditions
contained herein, up to an additional Six Hundred Thousand (600,000) shares of
Common Stock (the “Additional
Shares”) determined and issuable as follows:
(a) First Sale of Licensed
Product Milestone. If and when the Company or any of its
Affiliates (as defined in the License Agreement”) makes its first (1st)
commercial sale (as contrasted to sales of prototypes, test products and the
like) to a Third Party of any Licensed Product, then the Company shall issue to
SaluMedica an additional One Hundred Thousand (100,000) shares of Common Stock
within thirty (30) days after the Company or any of its Affiliates has delivered
such Licensed Product to the purchaser.
(b) First Revenue
Milestone. If and when the Company and its Affiliates in the
aggregate collect Net Revenues (as hereinafter defined) for any period of twelve
(12) consecutive months equal to or greater than twenty million U.S. Dollars
($20,000,000), then the Company shall issue to SaluMedica an additional One
Hundred Thousand (100,000) shares of Common Stock within thirty (30) days after
the Company has collected such Net Revenues.
(c) Second Revenue
Milestone. If and when the Company and its Affiliates in the
aggregate collect Net Revenues for any period of twelve (12) consecutive months
equal to or greater than forty million U.S. Dollars ($40,000,000), then the
Company shall issue to SaluMedica an additional Two Hundred Thousand (200,000)
shares of Common Stock within thirty (30) days after the Company has collected
such Net Revenues.
(d) Third Revenue
Milestone. If and when the Company and its Affiliates in the
aggregate collect Net Revenues for any period of twelve (12) consecutive months
equal to or greater than fifty million U.S. Dollars ($50,000,000), then the
Company shall issue to SaluMedica an additional Two Hundred Thousand (200,000)
shares of Common Stock within thirty (30) days after the Company has collected
such Net Revenues.
(e) For
purposes of this Section 1.2, “Net
Revenues” means all payments collected by the Company or its Affiliates
from the commercial sale of Licensed Products (which for the avoidance of doubt
includes sales of Licensed Products that are permitted under either of the Prior
Agreements), less: (a) sales, use, turnover, excise, value added, and all other
foreign, federal, state, or local taxes (except income tax); (b) custom duties
or consular fees; (c) transportation, freight, and handling charges and
insurance on shipments to customers; (d) ordinary and reasonable trade, cash, or
quantity discounts or rebates to the extent actually granted; and (e) refunds
and credits for any damaged, spoiled, rejected, or returned Licensed Products or
because of retroactive price reductions, rebates, or charge backs; in each case
as determined under generally accepted accounting principles in effect from time
to time in the United States of America. “Net Revenues” shall also
include any cash (including royalties), and the fair market value of any
non-cash property or rights of any kind, received by the Company or its
Affiliates, directly or indirectly, from the sale, assignment, license,
sublicense or any other assignment or transfer to a third party, of the License
Agreement (or Trademark Agreement), or any rights under the License Agreement
(or the Trademark Agreement). If any Licensed Products
are incorporated in any other product, device, equipment, or apparatus sold by
the Company or its Affiliates as a combined product, device, equipment, or
apparatus, then the Net Revenues for the purpose of determining whether or not
SaluMedica is entitled to any Additional Shares hereunder shall that proportion
of the Net Revenues of that combined product, device, equipment, or apparatus
which is fairly attributable to such Licensed Products based on the extent of
functionality and performance contributed by such Licensed Products to that
combined product, device, equipment, or apparatus.
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(f)
Expiration
Date. The right to receive Additional Shares upon the
satisfaction of the conditions precedent related thereto as set forth in this
Section 1.2 shall expire as to any Additional Shares not then earned, if such
conditions precedent have not been satisfied by June 30, 2013 (the “Expiration
Date”).
(g)
Adjustments to
Additional Shares. The number of Additional Shares to be
issued pursuant to this Section 1.2 shall be adjusted appropriately, and
automatically, from time to time as applicable, without any action by the
parties, to reflect any stock split, stock dividend, reverse-split,
recapitalization and the like affecting the outstanding shares of Company common
stock, that occur prior to the date of issuance of any applicable Additional
Shares. These adjustment(s) shall also be made with respect to
similar capitalization changes in shares of any successor entity to the Company
(by merger, consolidation or otherwise) in connection with, or following, any
Sale of the Company (as defined below).
(h)
Rule 144
Obligations. The
Company shall take all actions necessary (including but not limited to complying
with all filing requirements under the Securities Exchange Act of 1934, as
amended) to allow SaluMedica to sell the Closing Shares and the Additional
Shares immediately upon SaluMedica’s holding the applicable shares for the
requisite holding periods as prescribed for non-affiliates under Rule 144__
under the Securities Act.
1.3. Sale of the
Company. In the event of a Sale of the Company (as hereinafter
defined) on or before the Expiration Date, the parties hereto agree and
acknowledge that the acquirer in such transaction shall be required to assume
any remaining obligations of the Company owed to SaluMedica with respect to the
issuance of Additional Shares pursuant to Section 1.2. For purposes
of this Section 1.3, “Sale of
the Company” means the consummation of any of the following events in
one, or two or more related, transactions: (i) A complete liquidation of the
Company; (ii) a sale, transfer, or other disposition of all or substantially all
of the Company’s assets or capital interests; or (iii) a merger, consolidation,
or reorganization of the Company with or involving any other entity other than a
merger, consolidation, or reorganization that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the combined
voting power of the voting securities of the Company (or such surviving entity)
outstanding immediately after such merger, consolidation, or
reorganization.
1.4. Deliveries. Upon
the execution of this Agreement:
(a) The
Company shall deliver to SaluMedica a stock certificate representing the Closing
Shares against SaluMedica’s execution and delivery of the License Agreement and
the Trademark Agreement;
(b) The
Company and SaluMedica shall execute and deliver the License Agreement, the form
of which is attached hereto as Exhibit
A; and
(c) The
Company and SaluMedica shall execute and deliver the Trademark Agreement, the
form of which is attached hereto as Exhibit
B.
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2. Representations and
Warranties of the Company. The Company hereby represents and
warrants to SaluMedica that the statements in the following paragraphs of this
Section 2 are all true and complete immediately prior to the Effective Date, and
shall also be true, to the extent applicable, at such times as Additional Shares
are issued by the Company:
2.1. Organization, Good Standing,
and Qualification.
(a) The
Company is a corporation duly incorporated, validly existing, and in good
standing under the laws of the State of Florida. Each of the Company
and its Affiliates has all requisite corporate or company power and authority to
own and operate its properties and assets, to carry on its business as currently
conducted and as it is currently planned to be conducted, and to enter into and
carry out the provisions of this Agreement, the License Agreement, and the
Trademark Agreement.
(b) Each
of the Company and its Affiliates is duly qualified to transact business and is
in good standing in each jurisdiction in which the nature of the business
conducted by it, or its ownership or leasing of property, or its employment of
employees or consultants therein, makes such qualification necessary and where
any statutory fines or penalties, or any corporate disability imposed for this
failure to qualify, would materially and adversely affect the Company’s or its
Affiliates’ business, properties, assets, or financial condition.
2.2. Subsidiaries. Except
for SpineMedica, LLC (a successor by merger to SpineMedica,
Corp), MiMedx, Inc., and LeveL Orthopedics, LLC, the Company does not
own or control, directly or indirectly, any capital stock or other direct or
indirect ownership interest in any corporation, limited liability company,
partnership, association, or other business entity.
2.3. Authorization. All
corporate action on the part of the Company and its officers, directors, and
stockholders necessary for the authorization, execution, and delivery of this
Agreement, the License Agreement, and the Trademark Agreement, the performance
of all obligations of the Company hereunder and thereunder, and the
authorization, issuance, sale, and delivery of the Closing Shares and the
Additional Shares being sold and issued hereunder has been taken and this
Agreement, the License Agreement, and the Trademark Agreement, when executed and
delivered, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject to: (i) laws
limiting the availability of specific performance, injunctive relief, and other
equitable remedies; (ii) bankruptcy, insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect generally relating to or affecting
creditors’ rights generally; and (iii) limitations on the enforceability of any
indemnification provisions. This Agreement, the License Agreement,
and the Trademark Agreement have been or will be duly executed and delivered by
the Company.
2.4. Valid Issuance of Closing
Shares and Additional Shares. The Closing Shares, when issued
and delivered and paid for in compliance with the provisions of this Agreement,
will be duly authorized and validly issued, fully paid, and nonassessable; the
Additional Shares have been duly and validly reserved and, when issued and
delivered and paid for in compliance with the provisions of this Agreement, will
be duly authorized and validly issued, fully paid, and nonassessable; and the
Closing Shares and the Additional Shares will be free of any liens or
encumbrances or restrictions on transfer other than restrictions on transfer
under this Agreement, any agreement in place between the Company and all of its
holders of Common Stock, and applicable state and federal securities
laws.
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2.5. No
Broker. No finder, broker, agent, financial advisor, or other
intermediary has acted on behalf of the Company in connection with the offering
or sale of the Closing Shares or the Additional Shares or the negotiation or
consummation of this Agreement, the License Agreement, the Trademark Agreement,
or any of the transactions contemplated hereby or thereby.
3.
Representations
and Warranties of SaluMedica. SaluMedica hereby represents and
warrants to the Company that the statements in the following paragraphs of this
Section 3 are all true and complete immediately prior to the Effective
Date:
3.1. Experience. SaluMedica
experienced in evaluating and investing in private placement transactions of
securities of companies such as the Company, and has either individually or
through its current officers such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
prospective investment in the Company, and has the ability to bear the economic
risks of the investment.
3.2. Accredited
Investor. SaluMedica is an “accredited investor” within the
meaning of the Securities and Exchange Commission Rule 501 of Regulation D, as
presently in effect, under the Securities Act of 1933, as amended (the “Securities
Act”). SaluMedica is acquiring the Closing Shares and the
Additional Shares for investment for its own account, not as a nominee or agent,
and not with the view to, or for resale in connection with, any distribution
thereof, without prejudice, however, to its right at all times to sell or
otherwise dispose of all or any part of the Closing Shares or the Additional
Shares under a registration under the Securities Act or under an exemption from
said registration available under the Securities Act. SaluMedica
further represents that it does not have any contract, undertaking, agreement,
or arrangement with any person to sell, transfer, or grant participation to any
third person with respect to any of the Closing Shares or the Additional
Shares.
3.3. Restricted
Securities. SaluMedica acknowledges that the Closing Shares
and the Additional Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. It is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, including but not limited to the availability of current information
to the public about the Company.
3.4. Legends. SaluMedica
acknowledges that, to the extent applicable, each certificate evidencing the
Closing Shares and the Additional Shares shall be endorsed with the legends
substantially in the form set forth below, as well as any additional legend
imposed or required by the Company’s bylaws and/or shareholders’ agreements or
applicable state securities laws:
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THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) IN RELIANCE ON CERTAIN
EXEMPTIONS CONTAINED THEREIN, OR UNDER THE SECURITIES ACT OF ANY STATE (THE
“STATE ACTS”) IN RELIANCE ON CERTAIN EXEMPTIONS CONTAINED
THEREIN. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN A TRANSACTION (A) REGISTERED UNDER THE SECURITIES ACT OR
EXEMPT FROM REGISTRATION THEREUNDER AND REGISTERED UNDER THE APPLICABLE STATE
ACTS OR EXEMPT FROM REGISTRATION THEREUNDER, OR (B) OTHERWISE IN COMPLIANCE WITH
THE SECURITIES ACT AND THE APPLICABLE STATE ACTS. THE COMPANY MAY
REQUIRE AN OPINION OF COUNSEL ACCEPTABLE TO IT IN CONNECTION WITH ANY SUCH
TRANSACTION.
Our Board
of Directors is authorized to issue 5,000,000 shares of our Preferred Stock,
$0.001 par value, in one or more series as designated by the Board of Directors.
The Board has the power to designate the relative rights and preferences of our
Preferred Stock, which may include preferences as to dividends or amounts
payable upon liquidation. Information regarding our Common Stock and
Preferred Stock may be obtained from the Company upon request.
This
written statement is provided pursuant to Section 607.06026 of the Florida
Business Corporation Act.
3.5. Authorization. All
company action on the part of SaluMedica and its officers, managers, and members
necessary for the authorization, execution, and delivery of this Agreement, the
License Agreement, and the Trademark Agreement, and the performance of all
obligations of SaluMedica hereunder and thereunder, has been taken and this
Agreement, the License Agreement, and the Trademark Agreement, when executed and
delivered, will constitute valid and legally binding obligations of SaluMedica,
enforceable in accordance with their respective terms, subject to: (i) laws
limiting the availability of specific performance, injunctive relief, and other
equitable remedies; (ii) bankruptcy, insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect generally relating to or affecting
creditors’ rights generally; and (iii) limitations on the enforceability of any
indemnification provisions. This Agreement, the License Agreement,
and the Trademark Agreement have been or will be duly executed and delivered by
the Company.
3.6. Reliance Upon Investor’s
Representations. SaluMedica understands that the Closing
Shares have not been, and the Additional Shares will not be, registered under
the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment intent as expressed
herein. SaluMedica understands and acknowledges that the offering of
the Closing Shares and the Additional Shares pursuant to this Agreement will not
be registered under the Securities Act on the ground that the sale provided for
in this Agreement and the issuance of securities hereunder is exempt from the
registration requirements of the Securities Act.
3.7. Investment
Decision. SaluMedica’s investment decision with respect to the
Closing Shares and the Additional Shares was made at its offices located in
Atlanta, Georgia
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3.8. Full
Consideration. The Closing Shares and are fair, adequate, and
legally sufficient consideration for the License Agreement and the
Trademark Agreement. For the avoidance of doubt, the issuance or failure to
issue Additional Shares, and the breach by the Company of any representation,
warranty or covenant hereunder other than the issuance of the Closing Shares,
shall have no impact or effect on the License Agreement or the Trademark
Agreement. Nothing in this Section 3.8 shall limit SaluMedica’s
rights under Section 5.3 hereof.
3.9. Insolvency
Proceedings. Neither SaluMedica nor any of its properties or
assets are the subject of any pending, rendered, or threatened insolvency
proceedings of any character. SaluMedica has not made an assignment
for the benefit of creditors or taken any action with a view to, or that would
constitute a valid basis for the institution of, any such insolvency
proceedings. SaluMedica is not insolvent and nor will it become
insolvent as a result of entering into this Agreement, the License Agreement,
and/or the Trademark Agreement.
3.10. No
Violation. SaluMedica is not in violation or breach of, and
entering into this Agreement will not violate or breach, any agreement,
contract, order of any court or arbitral body binding on SaluMedica, and
SaluMedica and has the full unencumbered and unrestricted right, power and
authority (subject to the restrictions in the GTRC License) to enter
into this Agreement, the License Agreement and the Trademark Agreement, and no
Third Party has any right or claim to the rights granted to the Company
hereunder and thereunder, nor to the Closing Shares or Additional
Shares.
4.
Covenants.
4.1. General
Cooperation. In case at any time after the Effective Date any
further actions are necessary or desirable to carry out the purposes of this
Agreement and effect the transactions contemplated by this Agreement, including,
without limitation, the execution and delivery of any certificates, instruments,
or other documents, each of the parties hereto will take such further actions
(including, without limitation, the execution and delivery of such further
certificates, instruments, or other documents) as the other party hereto may
reasonably request, all at the sole cost and expense of the requesting
party.
4.2. Survival
Periods. All covenants and agreements and representations and
warranties contained in or made pursuant to this Agreement shall continue and
survive the execution of this Agreement.
5.
Miscellaneous.
5.1. Expenses. Each
party shall bear all of its own expenses, costs, and fees (including attorneys’,
auditors’, and financing fees, if any) incurred in connection with the
transactions contemplated hereby, including the preparation, execution, and
delivery of this Agreement and compliance herewith.
5.2. Governing
Law. This Agreement shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of Florida
applicable to agreements entered into and performed within such State, but
without reference to the conflicts of law rules of such State.
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5.3. Specific
Performance. Each party hereto acknowledges and agrees that,
in the event of any breach of this Agreement, the non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that each party hereto: (i) shall
be entitled, in addition to any other remedy to which it may be entitled at law
or in equity, to compel specific performance of this Agreement; and (ii) shall
waive, in any action for specific performance, the defense of the adequacy of a
remedy at law.
5.4. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other party, and any attempt to assign
this Agreement without such consent shall be void and of no
effect. Nothing in this Agreement, expressed or implied, is intended
or shall be construed to confer upon any person, other than the parties hereto
and the successors and assigns permitted by this Section, any right, remedy, or
claim under or by reason of this Agreement.
5.5. Entire Agreement; Amendment;
and Waiver. This Agreement, the License Agreement, and the
Trademark Agreement constitute the entire agreement between the parties hereto
with respect to the subject matter hereof, and this Agreement, the License
Agreement, and the Trademark Agreement supersedes and renders null
and void any and all other prior oral or written agreements, understandings, or
commitments pertaining to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged, or terminated
except by a written instrument signed by all the parties hereto. The
failure of any party to this Agreement to insist upon the strict performance of
any of the terms, conditions, or provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions, and provisions shall remain in full force and
effect.
5.6. Invalidity. Should
any part of this Agreement, for any reason whatsoever, be declared invalid,
illegal, or incapable of being enforced in whole or in part, such decision shall
not affect the validity of any remaining portion, which remaining portion shall
remain in full force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated, and it is hereby declared to be the
intention of the parties hereto that they would have executed the remaining
portion of this Agreement without including therein any portion which may for
any reason be declared invalid.
5.7. Notices. All
notices, consents, waivers, requests, instructions, or other communications
required or permitted hereunder shall be in writing or by written electronic
transmission, and shall be deemed to have been duly given if (a) delivered
personally (effective upon delivery), (b) sent by a reputable, established
international courier service that guarantees delivery within three (3) business
days (effective upon receipt), (c) mailed by certified mail, return receipt
requested, postage prepaid (effective upon receipt), or (d) sent by facsimile or
e-mail with confirmation of transmission by the transmitting equipment
(effective upon receipt), addressed as follows (or to such other address as the
recipient may have furnished for the purpose pursuant to this
Section):
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If to the
Company:
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attention: Xxxxx Xxxxxx,
Chairman
Facsimile: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxxx.xxx
With a
copy (which shall not constitute notice) to:
G.
Xxxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxxx
& Xxxx, PLLC
0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
Email:
XXxxxxxx@xxxx.xxx
If to
SaluMedica:
SaluMedica,
LLC
0000
Xxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxx.xxx
With a
copy (which shall not constitute notice) to:
Xxxxxxx
X. Xxxxxxx, Esq.
Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, LLP
0000
Xxxxxxxxx Xxxxxx X.X.
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
Email:
xxxxxxxx@xxxxxx.xxx
5.8. Captions. The
captions contained in this Agreement are for convenience of reference only and
shall not control or affect the meaning or construction of any of the provisions
of this Agreement.
5.9. Counterparts. This
Agreement may be executed in one or more counterparts, all of which will be
considered one and the same agreement and will become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party, regardless of whether all of the parties have executed the same
counterpart. Counterparts may be delivered via facsimile, electronic
mail (including pdf), or other transmission method and any counterpart so
delivered shall be deemed to have been duly and validly delivered and be valid
and effective for all purposes.
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5.10. Arbitration. Any
dispute, claim, or controversy arising out of or in connection with this
Agreement, other than a claim for specific performance under Section 5.3
hereof, shall be finally determined by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
“Rules”). Unless
the Parties shall otherwise mutually agree, there shall be one (1)
arbitrator. Any judgment or award rendered by the arbitrator shall be
final, binding, and nonappealable. The place of arbitration shall be
Atlanta, Georgia. Neither of the Parties shall contest the choice of
Atlanta, Georgia as the proper forum for such dispute, and notice in accordance
with Section 5.7 shall be sufficient for the arbitrator to conduct such
proceedings. If the Parties are unable to agree on an arbitrator, the
arbitrator shall be selected in accordance with the Rules. In
resolving any dispute, the Parties intend that the arbitrator apply the
substantive laws of the State of Florida, without regard to the choice of law
principles thereof. The Parties intend that the provisions to
arbitrate set forth herein be valid, enforceable, and
irrevocable. The Parties agree to comply with any award made in any
such arbitration proceedings that has become final in accordance with the Rules
and agree to enforcement of, or entry of judgment upon such award, by any court
of competent jurisdiction. Without limiting the provisions of the
Rules, unless otherwise agreed in writing by the Parties or permitted by
this Agreement, the Parties shall keep confidential all matters
relating to the arbitration or the award, provided, such matters may be
disclosed (a) to the extent reasonably necessary in any proceeding brought to
enforce the award or for entry of a judgment upon the award and (b) to the
extent otherwise required by law. Notwithstanding any provision of
the Rules to the contrary, the Party other than the prevailing Party in the
arbitration shall be responsible for all of the costs of the arbitration,
including, without limitation, legal fees and other costs associated with such
arbitration incurred by either Party.
[SIGNATURES
FOLLOW ON THE NEXT PAGE]
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[SIGNATURES
TO INVESTMENT AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Investment Agreement to
be effective as of the Effective Date.
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SALUMEDICA,
LLC
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By:
/s/ Xxxxxx X.
Xxxxxx
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By:
/s/ Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X.
Xxxxxx
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Title:
President
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Title:
Executive Vice
President
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