1
FINAL
EXHIBIT 10.31
JOINT VENTURE AGREEMENT
BETWEEN
RADIANCE MEDICAL SYSTEMS, INC.
AND
GLOBE CO., LTD.
2
JOINT VENTURE AGREEMENT
This Agreement (this "Agreement") made and entered into this 15th day of June,
1999 by and between Radiance Medical Systems, Inc. ("RADIANCE"), a corporation
organized and existing under the laws of Delaware and having its principal
office of business at 00000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx, X.X.X.
and Globe Co., Ltd. ("GLOBE"), a corporation organized and existing under the
laws of Japan and having its principal office of business at #000, 0-00-00,
Xxxxxxxx-xxx, Xxxxxxxxxx-xx, Xxxxx, Xxxxx.
WHEREAS, RADIANCE has sophisticated technology in the field of catheters for
intravascular radiation therapy, energy emitting radiation sources, angioplasty,
and the like;
WHEREAS, GLOBE has extensive knowledge and experience in medical supply in the
field of cardiovascular applications;
WHEREAS, RADIANCE and GLOBE, companies with experience and expertise in the
manufacture and marketing of cardiovascular medical equipment, wish to further
enhance the mutual relationship and establish a joint venture company for its
supply of such medical equipment.
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, the Parties hereto agree as follows:
SECTION 1. DEFINITIONS
When used in this Agreement, each of the terms set forth in this Section 1 shall
have the meaning indicated below:
1.1 "RADIATEC" shall mean a joint-stock corporation (Kabushiki Kaisha) to be
incorporated under the laws of Japan by joint venture investment by
RADIANCE and GLOBE in the manner provided for in Section 2 and whose
corporate name shall be Radiatec Kabushiki Kaisha in Japanese and
Radiatec, Inc. in English.
1.2 "PARTIES" and "PARTY" shall mean the parties hereto, and either of them,
respectively.
1.3 "PRODUCT(S)" Shall mean the radiation delivery balloon catheter
irradiated for radiation on therapy for the prevention of restenosis and
any other products to be added from time to time by mutual agreement
between the Parties.
1.4 "GOVERNMENTAL APPROVAL(S)" shall mean the approval, authorization and
permit by Japanese government and quasi-government authorities such as
the Ministry of Health and Welfare and the Agency of Science and
Technology for the commercial sale of the Products in Japan and such
approval includes approval and establishment of the health reimbursement
price with respect to the Products.
3
SECTION 2. FORMATION OF RADIATEC
2.1 ORGANIZATION AND REGISTRATION
The Parties shall, as soon as possible after the date hereof, cause RADIATEC as
described in this Agreement, to be organized and registered under the laws of
Japan. All costs necessary therefor shall be borne by RADIATEC. The registered
head office of RADIATEC shall be located at #306, 0-00-00, Xxxxxxxxxxx,
Xxxxxxxxxx-xx, Xxxxx, Xxxxx. The Parties shall closely cooperate and consult
with each other with respect to the procedures for and particulars relating to
the organization and registration of RADIATEC.
2.2 ASSETS OF RADIATEC
RADIATEC shall utilize the facilities from the existing facilities of GLOBE at
no cost to RADIATEC. RADIATEC shall own the Japanese rights in the Governmental
Approval(s) for the Products, provided however, that in the event of any
termination for whatever reason of this Agreement, all such rights shall revert
to RADIANCE or its designee and the parties shall cooperate in such transfer.
2.3 BUSINESS PURPOSES OF RADIATEC
The main business activities of RADIATEC shall be to import and distribute the
Product(s). At the time of the organization and registration of RADIATEC
pursuant to this Section 2.1, the Articles of Incorporation of RADIATEC shall
contain the following business objectives and purposes:
(i) To engage in the business of importing and distributing the
Product(s); and
(ii) To do any and all things related or incidental to the business
mentioned above.
2.4 RIGHT OF FIRST REFUSAL FOR THE PRODUCT(S)
RADIATEC shall have the right of first refusal for all variations of the
Product(s) for other medical applications to be developed by RADIANCE.
Accordingly, if at any time RADIANCE proposes to offer a third party rights to
distribute such Products for other medical applications in Japan, it shall first
offer such rights to RADIATEC. Any such first offer shall set forth the terms
and other conditions of such offer, and shall be made in writing by registered
airmail postage prepaid, and shall state that the offer shall remain effective
until whichever of the following events shall first occur:
(i) Dispatch of a notice of refusal in writing by RADIATEC to whom
such first offer has been made; or
(ii) The lapse of thirty (30) days after the date of receipt of such
first offer.
Acceptance of any such first offer which has been made pursuant to this Section
2.4 shall be effective upon dispatch by RADIATEC of acceptance thereof by
registered airmail, postage prepaid, if such dispatch occurs within thirty (30)
days after the date of receipt of such offer.
2
4
If, after a first offer has been extended pursuant to this Section 2.4, RADIATEC
refuses or fails to accept such offer, RADIANCE shall have the right to offer
rights to any person, natural or juridical, who is not a Party to this
Agreement, if the terms offered to such person as aforesaid are no more
favorable to such person than the terms on which such rights were first offered
to RADIATEC pursuant to this Section 2.4.
2.5 ARTICLES OF INCORPORATION OF RADIATEC
The Articles of Incorporation of RADIATEC shall be drafted substantially in
accordance with the draft Articles of Incorporation in English attached hereto
as ANNEX I, and shall be separately agreed upon by the Parties.
2.6 CAPITAL OF RADIATEC AND CAPITAL CONTRIBUTION BY EACH OF THE PARTIES
The authorized capital of RADIATEC shall be four thousand (4,000) shares of
common stock, with par value of fifty thousand yen (Yen50,000) per share. At the
time of incorporation of RADIATEC, RADIATEC shall issue one thousand (1,000)
shares of common stock, with par value of fifty thousand yen (Yen50,000) per
share and with aggregate par value of fifty million yen (Yen50,000,000), and all
of such shares shall be subscribed for by the Parties. The number of shares to
be subscribed for and the amount to be paid in cash for such subscription by the
Parties shall be as follows:
NAME NUMBER OF SHARES AMOUNT TO BE PAID
---- ---------------- -----------------
GLOBE 490 Yen24,500,000
RADIANCE 510 Yen25,500,000
2.7 ADDITIONAL CONTRIBUTION BY RADIANCE AND GLOBE
The Parties shall take appropriate measures to fund the costs and expenses for
obtaining the Government Approval(s), in proportion to their relative interests
in RADIATEC.
2.8 INTELLECTUAL PROPERTY
RADIANCE and GLOBE each agree to grant a license, free of charge, to RADIATEC to
use any and all intellectual property of the parties relevant to the marketing
of the Product(s) whether presently owned or hereinafter created; provided,
however, that with respect to the use of any intellectual property of RADIANCE,
RADIATEC shall be subject to any restrictions under the Supply Agreement to be
entered into by and between RADIANCE and RADIATEC. Such licenses will terminate
on termination of this Agreement.
2.9 MARKETS AND NON-COMPETITION
Each of the Parties intends that RADIATEC shall engage in the importation and
sale of the Product(s) in order for Cosmotec Co., Ltd. to distribute such
Product(s) in Japan. To that end, except as otherwise agreed by the Parties,
GLOBE hereto covenants and agrees not to sell products similar to or competitive
with the Product(s) in Japan, and RADIANCE covenants and agrees not to sell
within Japan, directly or indirectly, any radiation delivery balloon catheters
except through RADIATEC.
2.10 FISCAL YEAR
3
5
The fiscal year of RADIATEC shall commence on the first day of January each year
and end on the thirty first day of December of such year.
2.11 SUPPLY AGREEMENT AND INTERNATIONAL DISTRIBUTOR AGREEMENT
In addition to the incorporation of RADIATEC, the Parties shall have RADIATEC
enter into (i) the Supply Agreement with RADIANCE in the form attached hereto as
ANNEX II (the "Supply Agreement") and (ii) the International Distributor
Agreement in the form attached hereto as ANNEX III (the "International
Distributor Agreement").
2.12 RESPONSIBILITIES FOR OBTAINING GOVERNMENTAL APPROVAL(S)
GLOBE shall be responsible for assisting RADIATEC in obtaining Governmental
Approval(s), including assisting it in managing, at RADIATEC's expense, all
animal trials and human clinical trials required to obtain such Government
Approval(s). RADIANCE shall supply to RADIATEC sample Products for the said
animal trials and human clinical trials.
SECTION 3. GENERAL MEETING OF SHAREHOLDERS
3.1 MEETINGS OF SHAREHOLDERS
General meetings of shareholders shall be convened at the principal office of
RADIATEC, or at such other place as the shareholders may agree to in writing. A
notice of a general meeting of shareholders in the Japanese language together
with an English translation attached thereto shall be dispatched to each
shareholder at least two weeks prior to the day on which such meeting is to be
held. Such notice shall set forth the items of business to come before the
meeting and shall be furnished either by physical delivery, by mail or
facsimile.
The period of notice may be shortened by the unanimous written consent of the
shareholders.
3.2 RESOLUTIONS OF MEETINGS OF SHAREHOLDERS
Except as otherwise required by mandatory provisions of law, a quorum for a
general meeting of the shareholders of RADIATEC shall require the presence, in
person or by proxy, of shareholders of RADIATEC holding more than two-thirds
(2/3) of the total issued and outstanding shares of RADIATEC entitled to vote.
Except as otherwise required by mandatory provisions of law, resolutions of
general meetings of shareholders of RADIATEC shall be adopted by the affirmative
vote of a majority of the shares represented in person or by proxy at a meeting
at which a quorum is present.
SECTION 4. BOARD OF DIRECTORS
4.1 AUTHORIZATION OF THE BOARD OF DIRECTORS
Except as otherwise required by mandatory provisions of law or as provided for
in the Articles of Incorporation of RADIATEC, responsibility for the management,
direction and control of RADIATEC shall be vested in the Board of Directors of
RADIATEC. The number of directors shall, unless otherwise agreed between
RADIANCE and GLOBE, be four (4).
Any of the following matters shall require a resolution by the Board of
Directors adopted by an affirmative vote of a majority of the number of
directors authorized in accordance with the preceding sentence:
4
6
(a) approval of the proposals for any increase or decrease in the authorized
capital of RADIATEC;
(b) any increase or decrease in the issued capital of RADIATEC or the
issuance of any indebtedness or other claim capable of being converted into an
interest in the equity of RADIATEC;
(c) any purchase or lease of any capital equipment other than in the
ordinary course of business;
(d) any borrowing or assumption of debt, whether in one or more borrowings,
which would cause the total outstanding indebtedness of RADIATEC to be more than
Yen100,000,000;
(e) any increase in the number of Directors or Statutory Auditors or any
change with respect to the Board, (including the appointment of a replacement
Representative Director) in the event of any Representative Director's or other
Director's resignation, death, inability to act, or other incapacity;
(f) approval of the annual marketing and sales plan of Product(s);
(g) approval of the price at which Product(s) will be sold to Cosmotec Co.,
Ltd.; and
(h) approval of the proposals relating to the disposition of profits and
losses (including, but not limited to, the payment of dividends to the
shareholders).
4.2 ELECTION OF DIRECTORS
The directors of RADIATEC shall be elected at a general meeting of shareholders.
Two (2) of the directors shall be individuals nominated by RADIANCE, and two (2)
shall be individuals nominated by GLOBE. Each of the Parties hereby agrees to
vote its shares of RADIATEC at the general meeting so as to elect the directors
nominated by the other Party.
In the case of the death, resignation or other removal of a director prior to
the end of his term of office, each of the Parties agrees to vote its shares of
RADIATEC so as to appoint as his replacement a director nominated by the Party
who nominated the director whose death, resignation or removal was the cause of
such vacancy.
4.3 MEETINGS OF THE BOARD OF DIRECTORS
A notice calling a meeting of the Board of Directors in the Japanese language
together with an English translation attached thereto shall be issued to each
director not less than one week before the meeting. Such notice shall set forth
the items of business to come before the meeting and shall be dispatched either
by physical delivery, by mail, or by facsimile. The term requirement of such
notice period may be shortened or dispensed with by the written consent thereto
of all of the directors.
4.4 RESOLUTIONS OF THE BOARD OF DIRECTORS
Except as otherwise required by this Agreement or as provided for in the
Articles of Incorporation of RADIATEC resolutions of the Board of Directors
shall be adopted (i) at a
5
7
meeting at which a majority of the directors duly elected to office pursuant to
Section 4.2 are present and (ii) by an affirmative vote of a majority of the
directors present thereat.
SECTION 5. REPRESENTATIVE DIRECTOR, PRESIDENT AND OFFICERS
The number of representative directors of RADIATEC shall, unless otherwise
agreed between RADIANCE and GLOBE, be two (2). The representative directors of
RADIATEC shall be elected at a meeting of the Board of Directors. One (1) of the
representative directors shall be an individual nominated by RADIANCE, and one
shall be an individual nominated by GLOBE. Each of the Parties hereby agrees to
have the directors it nominated to exercise their vote at the meeting of the
Board of Directors so as to elect the representative director nominated by the
other Party.
The Parties shall jointly nominate the president of RADIATEC from among the
representative directors upon mutual agreement who shall manage the day to day
affairs of RADIATEC. Each of the Parties hereby agrees to have the directors it
nominated to exercise their vote at a meeting of the Board of Directors so as to
elect the president so nominated. Further, other officers may be elected by a
meeting of the Board of Directors in accordance with agreement between the
Parties.
SECTION 6. AUDITOR
RADIATEC shall have one (1) statutory auditor, jointly nominated by the Parties.
Each of the Parties hereby agrees to vote its shares of RADIATEC at its general
meeting of shareholders to elect the statutory auditor jointly nominated by the
Parties. In the case of the death, resignation or other removal of the Statutory
auditor prior to the end of his term of office, the Parties agree to vote their
shares so as to appoint a replacement jointly nominated by the Parties.
SECTION 7. TRANSFERS, ETC., OF SHARES
7.1 GENERAL RESTRICTIONS ON TRANSFERS, ETC.
Except as otherwise expressly provided for in this Agreement or as agreed upon
between the Parties, each of the Parties hereby covenants and agrees not to
sell, assign, pledge or in any other manner transfer title or rights to, or
otherwise encumber, any of the shares of RADIATEC held by it, or to take any
action leading to or likely to result in any of the foregoing.
7.2 PROVISION IN THE ARTICLES OF INCORPORATION
In implementation of the above Section 7.1, the Parties agree that the Articles
of Incorporation of RADIATEC shall at all times contain the following provision:
"Any transfer of shares of the Corporation shall require the approval of the
Board of Directors."
7.3 RIGHT OF FIRST REFUSAL
Each Party hereby extends to the other Party a right of first refusal with
respect to acquisition of the shares of RADIATEC held by it. Accordingly, if at
any time either Party desires to transfer all or some of the shares of RADIATEC
held by it (other than a transfer of the shares held by RADIANCE to be made in
connection with the sale or other transfer of substantially all the business of
RADIANCE relating to the Product(s), such Party shall first offer to sell said
shares to the other Party or its nominee. Any such first offer shall set forth
the price per share at which the relevant share(s) are offered, and shall be
made in writing by registered airmail postage
6
8
prepaid, and shall state that the offer shall remain effective until whichever
of the following events shall first occur:
(i) Dispatch of a notice of refusal in writing by the Party to whom
such first offer has been made; or
(ii) The lapse of thirty (30) days after the date of receipt of such
first offer.
Acceptance of any such first offer which has been made pursuant to this Section
7.3 shall be effective upon dispatch by the Party to whom such offer has been
made of written notice of acceptance thereof by registered airmail, postage
prepaid, if such dispatch occurs within thirty (30) days after the date of
receipt of such offer; provided, however, that acceptance with respect to part
of the shares offered to sell shall be deemed refusal of such offer.
7.4 REJECTION OF/FAILURE TO ACCEPT ETC., A FIRST OFFER
If, after a first offer has been extended pursuant to Section 7.3, the offeree
refuses such offer or fails to accept such offer with respect to all of the
shares of RADIATEC so offered, the offeror shall have the right to offer such
shares to any person, natural or juridical, who is not a Party to this
Agreement, if the transfer price of the shares offered to any such person as
aforesaid is equal to or greater than the price at which the same shares were
first offered to the other Party pursuant to Section 7.3, and further provided
that any transfer of shares of RADIATEC to a third party pursuant to this
Section 7.4 shall be conditional upon the full and unconditional assumption by
any such third party transferee of all of the obligations of the transferor
provided for in this Agreement.
SECTION 8. CONFIDENTIALITY OF INFORMATION
Each Party agrees to keep strictly secret and confidential and not to disclose
to any third party any information acquired from the other Party or from
RADIATEC, except to the extent that disclosure to RADIATEC may be required by
this Agreement, the Supply Agreement or the International Distributor Agreement
or to the extent that disclosure is expressly permitted by this Agreement, the
Supply Agreement or the International Distributor Agreement. Such secrecy
obligations shall not apply to any information obtained from the other Party or
from RADIATEC (i) which is or becomes published or otherwise generally available
to the public, other than through the willful or negligent act or omission of
either of the Parties or RADIATEC or any of their employees, or (ii) which is,
at the time of disclosure, in the possession of the party to which such
information is furnished. Such obligations, as so limited, shall survive
termination of this Agreement.
SECTION 9. DISPATCH OF PERSONNEL
9.1 To the extent approved by the Board of Directors, GLOBE shall dispatch
to RADIATEC personnel necessary for RADIATEC to conduct its business, by
seconding them to RADIATEC.
9.2 Salary or any other employment conditions of personnel as mentioned in
the preceding Section 9.1 and refund, etc. of the expenses relating
thereto shall be decided separately by mutual agreement between the
Parties.
SECTION 10. DEADLOCK PROVISIONS
7
9
If the Directors nominated by RADIANCE and the Directors nominated by GLOBE are
unable to pass an identical resolution at two successive board of directors'
meetings the Parties agree to negotiate for the sale of all of one Party's
shares of RADIATEC to the other Party. If negotiations fail, either Party may
demand the liquidation of RADIATEC, in which case each of the Parties shall vote
its shares of RADIATEC at its general meeting of shareholders to approve
liquidation of RADIATEC, so that RADIATEC will be liquidated in accordance with
Section 11 below.
SECTION 11. LIQUIDATION
If RADIATEC is liquidated whether by mutual consent, according to section 10 or
otherwise, the assets of RADIATEC shall, after payment to all creditors, except
applicable taxes, be distributed to GLOBE and RADIANCE in accordance with the
rate of each shareholding.
SECTION 12. PAYMENTS AND TAXES
12.1 MANNER AND PLACE OF PAYMENTS
All payments to be made to the Parties by RADIATEC and to RADIATEC by the
Parties relating to this Agreement shall be made in Japanese yen.
12.2 WITHHOLDING TAXES
Any sum required under the tax laws of Japan to be withheld by RADIATEC for the
account of RADIANCE from payments due to RADIANCE shall be withheld and promptly
paid by RADIATEC to the appropriate tax authorities, and the Parties shall cause
RADIATEC to furnish official tax receipts or other appropriate evidence issued
by the tax authorities sufficient to enable RADIANCE to support a claim for a
foreign income tax credit in respect of any sum withheld. In connection with the
payment of dividends by RADIATEC to RADIANCE, the Parties shall cause RADIATEC
to cooperate fully with RADIANCE so that the reduced withholding tax rate under
the Convention between Japan and the United States of America for the Avoidance
of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on
Income by applied to such payment.
SECTION 13. TERM AND TERMINATION
13.1 TERM OF AGREEMENT
This Agreement shall become effective on the date of execution hereof, and shall
remain in full force and effect for an indefinite period, unless earlier
terminated pursuant to the following articles in this Section.
13.2 TERMINATION OF AGREEMENT
This Agreement shall terminate:
(i) Upon the acquisition by a Party of all of the common stock of
RADIATEC held by the other Party;
(ii) At the election of RADIANCE upon a Change in Control of GLOBE in
accordance with Section 14.3 of this Agreement;
8
10
(iii) Upon the institution of any proceedings against either Party
under any bankruptcy, reorganization, insolvency, readjustment
of debt, dissolution or liquidation law of any jurisdiction,
which are not discharged within thirty (30) days of institution,
but only if the other Party elects to terminate this Agreement;
(iv) Upon the failure of either Party to satisfy its capital and
other contribution requirements as set forth in Sections 2.6 and
2.7, but only if the other Party elects to terminate this
Agreement;
(v) In accordance with Section 15 of this Agreement in the case of a
material breach of this Agreement by either Party.
13.3 EFFECT OF TERMINATION
(i) Upon termination of this Agreement in accordance with Section
13.2 (ii), RADIANCE shall have the option, at its choice, (1) to
purchase all of GLOBE's shares in RADIATEC at a price per share
equal to the smaller of (a) fifty thousand yen (Yen50,000) and
(b) the net worth of RADIATEC appearing on the latest annual
balance sheet of RADIATEC divided by the total number of the
then issued and outstanding shares of RADIATEC or (2) to sell to
GLOBE all of RADIANCE's shares in RADIATEC at a price per share
equal to the greater of (a) fifty thousand yen (Yen50,000) and
(b) the net worth of RADIATEC appearing on the latest annual
balance sheet of RADIATEC divided by the total number of the
then issued and outstanding shares of RADIATEC.
(ii) Upon termination of this Agreement in accordance with Sections
13.2 (iii), (iv) and (v), the terminating Party shall have the
option, at its choice, (1) to purchase all of the other Party's
shares in RADIATEC at a price per share equal to the smaller of
(a) fifty thousand yen (Yen50,000) and (b) the net worth of
RADIATEC appearing on the latest annual balance sheet of
RADIATEC divided by the total number of the then issued and
outstanding shares of RADIATEC or (2) to sell to the other Party
all of the terminating Party's shares in RADIATEC at a price per
share equal to the greater of (a) fifty thousand yen (Yen50,000)
and (b) the net worth of RADIATEC appearing on the latest annual
balance sheet of RADIATEC divided by the total number of the
then issued and outstanding shares of RADIATEC.
SECTION 14. CHANGE OF CONTROL
14.1 CHANGE OF CONTROL OF RADIANCE PRIOR TO THE GOVERNMENTAL APPROVAL
Upon a Change of Control of RADIANCE prior to the Governmental Approval(s) of
RADIATEC's first Product for importation to and commercial sale in Japan,
RADIANCE shall have the option to purchase all of GLOBE's shares in RADIATEC in
consideration of the following:
(i) Reimbursement to GLOBE for all cash investments in the capital
of RADIATEC as well as repayment of an outstanding amount of any
loan made by GLOBE.
(ii) Performance of the Buyout obligations in Section 7 of the
International Distributor Agreement.
9
11
14.2 CHANGE OF CONTROL OF RADIANCE FOLLOWING THE GOVERNMENTAL APPROVAL
Upon a change of control of RADIANCE following the Governmental Approval(s) of
RADIATEC's first Product for importation to and commercial sale in Japan,
RADIANCE shall have the option to purchase all of GLOBE's shares in RADIATEC in
consideration of the following:
(i) Reimbursement to GLOBE for all cash investments in the capital of
RADIATEC as well as repayment of an outstanding amount of any
loan made by GLOBE; and
(ii) Causing RADIATEC to allow Cosmotec Co., Ltd. a one year
transition period to market, on an exclusive basis, any of the
Products under the Governmental Approval(s) within the Territory
under the International Distributor Agreement.
(iii) Performance of the Buyout obligations in Section 7 of the
International Distributor Agreement.
14.3 CHANGE OF CONTROL OF GLOBE
Upon a Change of Control of GLOBE in which the successor is engaged in business
which is competitive to the business of RADIATEC or RADIANCE, shall have the
right to terminate this Agreement, without penalty, within a twenty-four (24)
month period after such Change of Control, subject to a reasonable prior notice
period; provided, however, that a six (6) month prior notice period shall be
automatically deemed reasonable.
Upon a Change of Control of GLOBE in which the successor is not engaged in
business which is competitive to the business of RADIATEC or RADIANCE, this
Agreement shall remain in full force and effect.
14.4 DEFINITION OF CHANGE OF CONTROL
For the purpose of this Agreement, "Change of Control" means, with respect to
either Party, any transaction, or series of related transactions, in which
control of such Party, or substantially all of the business of such Party, is
acquired by any person, whether by merger, purchase or transfer of stock,
purchase of assets or otherwise.
SECTION 15. CANCELLATION
If a material breach of this Agreement by either Party shall occur, then,
regardless of whether such breach was intentional or accidental, this Agreement
may be terminated by the other Party by giving ninety (90) days prior written
notice to the Party in breach. Such termination shall become effective at the
end of said ninety (90)-day period unless the breach is cured during such
period.
SECTION 16. INTERPRETATION, DISPUTES AND GENERAL PROVISIONS
16.1 APPLICABLE LAW
The validity, construction and performance of this Agreement shall be governed
by and interpreted in accordance with the laws of Japan.
16.2 GOVERNING LANGUAGE
10
12
This Agreement is in the English language only, which language shall control in
all respects. No translation of this Agreement into any other language shall
have force or effect in the interpretation of this Agreement or in a
determination of the intent of either Party.
16.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties with respect
to the subject matter hereof and supersedes any prior written or oral agreements
or understandings between the Parties.
16.4 MODIFICATION, ETC. OF AGREEMENT
No oral statement by either of the Parties shall alter the meaning or
interpretation of this Agreement. No amendment or change hereof or addition
hereto shall be effective or binding on either Party unless in writing and
executed by the respective duly authorized representative of each Party.
16.5 NON-WAIVER
No omission or delay on the part of either Party in requiring due and punctual
fulfillment by the other Party of the obligations of such other Party hereunder
shall be deemed to constitute a waiver by the omitting or delaying Party of any
of its rights to require due and punctual fulfillment of any obligations
hereunder, similar or otherwise, or a waiver of any remedy it might have
hereunder.
16.6 FORCE MAJEURE
A failure or omission by either Party in the performance of any obligation of
this Agreement shall not be deemed a breach of this Agreement and shall not
create any liability if the same shall arise from any cause or causes beyond the
control of such Party, including, but not limited to, the following, which for
the purposes of this Agreement shall be regarded as beyond the control of the
Party in question:
(i) Acts of God or acts or omissions of any government or any agency
thereof, including compliance with requests, recommendations,
rules, regulations or orders of any government authority or any
officer, department, agency or instrumentality thereof; and
(ii) Fire, storm, flood, earthquake, accident, acts of a public
enemy, war, rebellion, insurrection, riot, invasion, strikes or
lockouts.
16.7 ASSIGNMENT
Unless otherwise provided for in this Agreement, neither this Agreement nor any
rights and obligations hereunder shall be assigned by either Party to any third
party without the prior written consent of the other Party.
16.8 NOTICES
Except as otherwise provided for in this Agreement, all notices required or
permitted to be given hereunder shall be in writing in the English language and
shall be valid and sufficient if
11
13
dispatched by registered airmail, postage prepaid, in any post office in the
United States of America in the case of such notices being dispatched from
RADIANCE or in Japan in the case of such notices being dispatched from GLOBE, as
the case may be, addressed to the other Party at the address first above
written. Either Party may change its address by notice given to the other Party
in the manner set forth above. Notices as herein provided for shall be
considered to have been given ten (10) days after the mailing thereof.
16.9 ARBITRATION
All disputes, controversies or differences which may arise between the Parties
in relation to this Agreement, or for the breach hereof, shall be settled
through bona fide negotiations between the Parties. Should such negotiations
fail to result in a settlement within three (3) months from the date such
negotiations began, the relevant dispute shall be finally settled by arbitration
pursuant to the Rules of Conciliation and Arbitration of the International
Chamber of Commerce, by which each Party agrees to be bound. The place of
arbitration shall be Tokyo, Japan if filed by RADIANCE or Los Angeles,
California if filed by GLOBE.
12
14
IN WITNESS WHEREOF this Agreement has been executed by the duly authorized
representatives of the Parties on the date first above written.
RADIANCE MEDICAL SYSTEMS, INC. GLOBE CO., LTD.
By By
------------------------------ --------------------------------------
Name: Name:
Title: Title:
13
