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MEDICAL DEVICE ALLIANCE INC.
EXHIBIT 10.23
CO-MARKETING AGREEMENT
BETWEEN
MDA CAPITAL INCORPORATED
AND
XxXXXX MEDICAL CORPORATION
AND
LySONIX INCORPORATED
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CO-MARKETING AGREEMENT
This CO-MARKETING AGREEMENT (this "Agreement"), dated as of January 1,
1998, is made and by and among XxXxxx Medical Corporation, a California
corporation ("MMC"), LySonix, Inc., a Nevada corporation ("LySonix") and MDA
Capital, Inc., a Nevada corporation ("MDA Capital") with reference to the
following:
A. To meet competition in their respective markets, MMC and LySonix
have agreed to co-market their products to certain of their customers under
terms which will involve LySonix selling its equipment and related products
("LySonix Products") to customers who will commit to purchase a specified number
of MMC implant products ("MMC Products") over a set period of time (the
"Commitment Period").
B. Prior hereto, and pursuant to an agreement (as amended and in
effect from time to time, the "Master Agreement") between MDA Capital and
LySonix, MDA Capital has agreed to acquire from LySonix LySonix Products and
provide financing directly to purchasers of such LySonix Products ("Customer
Financing") pursuant to the terms and conditions set forth in the Master
Agreement.
C. MMC, LySonix and MDA Capital now desire to provide for certain
agreements that will permit MMC and LySonix to co-market their products with the
financial participation of MDA Capital under circumstances where each of MMC and
LySonix (or MDA Capital) will be the seller of their respective products, MDA
Capital will provide Customer Financing, and MMC will act as collecting agent
from the purchasers of MMC Products and LySonix Products, on its own behalf and
on behalf of MDA Capital, all on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Definitions. The following terms shall have the respective
meanings as used in this Agreement or the Schedule or Exhibits hereto:
"Co-Marketed Products" shall mean MMC Products and LySonix Products
when co-marketed by MMC and LySonix to a customer pursuant to the terms of
this Agreement.
"Co-Marketing Funds Transfer Agreement" shall have the meaning
ascribed to such term in Section 3(b) of this Agreement.
"Commitment Period" shall have the meaning ascribed to such term in
the recitals to this Agreement.
"Customer Financing" shall have the meaning ascribed to such term in
the recitals to this Agreement.
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"Customer Financing Documents" shall mean secured transaction documents
entered into among MMC, LySonix and MDA Capital on one part and the customer for
Co-Marketed Products or another part and comprising part of the Sale Documents.
"Financing Payments" shall have the meaning ascribed to such term in
Section 3(b) of this Agreement.
"Funds Transfer Fee" shall mean the Funds Transfer Fee as described in
Section 8(a) of this Agreement.
"Gross Revenues" shall have the meaning ascribed to such term in Section
6(b) of this Agreement.
"LySonix" shall have the meaning ascribed to such term in the first
paragraph of this Agreement.
"LySonix Products" shall have the meaning ascribed to such term in the
recitals to this Agreement.
"LySonix Purchase Credit" shall have the meaning ascribed to such term in
Section 2(c) of this Agreement.
"LySonix Terms" shall have the meaning ascribed to such term in Section
2(b) of this Agreement.
"Master Agreement" shall have the meaning ascribed to such term in the
recitals to this Agreement.
"MDA Capital" shall have the meaning ascribed to such term in the first
paragraph of this Agreement and shall include any assignee of any rights or
obligations of MDA Capital hereunder.
"MMC" shall have the meaning ascribed to such term in the first paragraph
of this Agreement.
"MMC Products" shall have the meaning ascribed to such term in the
recitals to this Agreement.
"Sale Documents" shall mean all documents entered into with a customer in
connection with a sale of Co-Marketed Products.
2. Co-Marketing.
(a) MMC and LySonix shall, in order to meet competition, co-market
their respective products on the terms and conditions set forth in this
Agreement.
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(b) In the event MMC or LySonix determines that it is reasonably
necessary to meet competition for a customer or potential customer of MMC
Products or LySonix Products, respectively, to be offered the opportunity to
acquire LySonix Products or MMC Products, respectively, then LySonix and MMC
shall co-market LySonix Products and MMC Products, respectively, to such
customer or potential customer at the rates and on the terms set forth on
Schedule 2(b) hereto as amended and in effect from time to time (the "LySonix
Terms").
(c) MMC and LySonix shall document any transaction with a customer
using Sales Documents substantially in the form of Exhibit 2(c) hereto, such
Sale Documents to make clear that MMC is the seller of MMC Products and LySonix
(or MDA Capital) is the seller of LySonix Products to such customer. In
addition, each such purchase form shall provide that (i) payments made to MMC
for the purchase of Co-Marketed Products shall be received and accounted for by
MMC as payment for each of (A) the MMC Products purchased and sold, (B) the
LySonix Products purchased and sold and (C) applicable sales tax and (ii) a
specified amount of each such payment shall be credited to the purchase of the
LySonix Products (the "LySonix Purchase Credit").
(d) MMC and LySonix hereby covenant and agree to use their
respective best efforts in the control and distribution of their inventory to
maintain at all times a first priority allocation of their respective
inventories to supply commitments of Co-Marketed Products resulting from
transactions entered into pursuant to this Agreement.
3. Financing; Payments and Collection.
(a) In connection with the sale of Co-Marketed Products pursuant to
Section 2 of this Agreement, MDA Capital shall provide Customer Financing,
subject to (i) the purchaser of LySonix Products satisfying the credit and other
qualifications established by MDA Capital and applicable from time to time and
(ii) there not having occurred and then continuing any default by MMC or LySonix
under this Agreement or any other document or instrument executed and delivered
by LySonix or MMC pursuant to this Agreement.
(b) The terms of any Customer Financing shall be as set forth in an
addendum to this Agreement and the Master Agreement in substantially the form of
Exhibit 3(b) hereto (a "Co-Marketing Funds Transfer Agreement"). Pursuant to
the terms of such Co-Marketing Funds Transfer Agreement, (i) MDA Capital shall
acquire from LySonix the Lysonix Products specified therein, (ii) the amount of
the LySonix Purchase Credit for each payment to MMC shall be established and
(iii) MMC shall agree to receive specified amounts of the agreed payments by the
customer over the Commitment Period in consideration of the purchase and sale of
the Co-Marketed Products (A) as agent for MDA Capital for (1) payment of the
principal obligation of the customer under the Customer Financing Documents and
(2) agreed sums payable to MDA Capital under the terms of the Co-Marketing Funds
Transfer Agreement for (a) MDA Capital's services under this Agreement and the
Co-Marketing Funds Transfer Agreement and (b) taxes attributable to the sale of
the LySonix Products (collectively, the "Financing Payments") and (B) on account
of the Funds Transfer Fee. The parties agree and acknowledge that the aggregate
amount of the Financing Payments payable under clauses (iii)(A)(1) and
(iii)(A)(2) will not equal the LySonix Purchase Credit. Sums not payable to MDA
Capital,
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LySonix or MMC as Financing Payments or Funds Transfer Fees under clauses
(iii)(A)(1), (iii)(A)(2) and (iii)(B) above shall be the property of MMC.
(c) LySonix hereby agrees to sell to MDA Capital and MDA Capital
hereby agrees to purchase from LySonix the LySonix Products identified in each
Co-Marketing Funds Transfer Agreement in a manner and at such time as shall be
reasonably necessary to effect the sale of the Co-Marketed Products described in
such Co-Marketing Funds Transfer Agreement in accordance with this Agreement and
the LySonix Terms.
4. Appointment; Scope of Duties; and Standard of Responsibility.
(a) Appointment of Collecting Agent. MDA Capital hereby appoints
MMC as, and MMC agrees to act as, collecting agent for MDA Capital under the
Customer Financing Documents entered into pursuant to the terms of the
Co-Marketing Funds Transfer Agreements, for the account of MDA Capital and as
MDA Capital's exclusive representative and agent.
(b) Scope of Collecting Agent Duties. MMC shall receive and hold
in trust for the benefit of MDA Capital from each payment received under any
Sale Documents an amount equal to the Financing Payments due with respect to
such payment received. MMC shall separate and hold apart such amounts and shall
account to MDA Capital with respect to all amounts received as provided in
Section 6(a) of this Agreement. MMC shall transfer to MDA Capital all Financing
Payments in its possession or under its control periodically pursuant to Section
5(b).
(c) Standard of Responsibility. MMC further agrees to use all
necessary and reasonable measures and to exercise the care of a fiduciary in all
aspects of the receipt, possession and disposition of the Financing Payments.
5. Collection and Disbursement of Revenues.
(a) MMC shall collect all Gross Revenues of whatever nature from
Co-Marketed Products. In fulfilling its duties hereunder, MMC shall
(i) Deposit of Collections. Establish and maintain in a bank,
whose deposits are insured by the Federal Deposit Insurance Corporation and
which is reasonably acceptable to MDA Capital, an interest bearing account
in the name of MMC, as trustee, for the deposit of amounts equal to all
Financing Payments collected by MMC in connection with the sale of
Co-Marketed Products. MDA Capital and MMC agree and acknowledge that all
interest or other income earned on funds in such account shall be the
property of MDA Capital and shall be reported under MDA Capital's tax
identification number.
(ii) Required Transfers. From the funds deposited in such
account, MMC shall disburse Financing Payments transferable under Section
3(b) of this Agreement and the applicable Co-Marketing Funds Transfer
Agreement, plus all interest accrued in such account (in excess of any
balance required to maintain such account), for the account of MDA Capital
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on a monthly basis concurrent with the delivery of the report due pursuant
to Section 6(a) of this Agreement.
(b) MDA Capital shall establish and maintain with the bank
maintaining the account pursuant to Section 5(a)(i) an account to which the
transfers required pursuant to Section 5(a)(ii) may be made.
6. Financial Records and Reports. MMC shall keep and maintain accurate,
complete and separate records in connection with all sums received for the sale
of Co-Marketed Products. In fulfilling its duties, MMC shall:
(a) Monthly Statements. Prepare and deliver to MDA Capital (with a
copy of LySonix), within five business days of the end of the previous month, a
monthly statement (i) showing in detail the gross payments received in
connection with sales of Co-Marketed Products ("Gross Revenues") during such
month, (ii) indicating on which customers' and transactions' accounts such Gross
Revenues were received, (iii) identifying any delinquent accounts and (iv)
setting forth the transfers of Financing Payments for the previous month's
Gross Revenues (with copies of all payments received and transfers made if so
requested by MDA Capital).
(b) Monthly Reconciliation. Within five business days of receipt of
each monthly report delivered pursuant to Section 6(a), LySonix and MDA Capital
shall deliver to MMC a reconciliation to amounts reflected in the report
delivered pursuant to Section 6(a). Such reconciliation shall include an
identification of all delinquent accounts. To the extent any discrepancies
exist between the initial report and such reconciliation, the parties shall
meet and confer prior to the end of the month in which such reports were
delivered to agree on a final reconciliation.
(c) Records. Permit and accord MDA Capital the right to inspect,
during usual business hours or at any other reasonable time, all records
maintained in connection with the payments made in connection with sales of
Co-Marketed Products and to cause such audits as they consider appropriate to
be performed of all such accounting books and records. MMC's books and records
shall be maintained in accordance with generally accepted accounting principles
to be applied on a consistent basis. In the event that an annual audit is
requested by MDA Capital and the Gross Revenues or Financing Payments in
connection with sales of Co-Marketed Products are misstated by more than three
percent (3%) of the actual figure, all audit fees and related expenses will be
borne by MMC.
7. Taxes. Each of MMC and LySonix shall be responsible for timely
payment of all taxes and other charges due or claimed to be due from it by
federal, state or local taxing authorities (including, without limitation,
those due in respect to properties, income, franchises, licenses, sales or
payrolls) relating to the sale of their respective Co-Marketed Products. If MDA
Capital is deemed the seller of LySonix Products in a transaction subject to
tax, MDA Capital shall be responsible for the calculation and timely payment of
such tax with respect to such LySonix Products. Each party has the duty to
provide all information reasonably required by another party to file all tax
reports and tax returns required to be filed by such other party. Amounts
relating to taxes with respect to LySonix Products
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included in a transaction subject to a Co-Marketing Funds Transfer Agreement
shall be received and forwarded by MMC together with other Financing Payments
under Section 3(b).
8. Compensation.
(a) MMC. For services rendered pursuant to this Agreement, MMC
shall be entitled to receive from the Gross Revenues from the sale of
Co-Marketed Products a fee equal to the Funds Transfer Fee set forth in each
respective Co-Marketing Funds Transfer Agreement, such fee shall be calculated
by MMC and paid periodically by MMC to itself pursuant to this Agreement.
(b) MDA Capital. For services rendered pursuant to this
Agreement and the Co-Marketing Funds Transfer Agreements, MDA Capital shall be
entitled to receive a fee equal to the Financing Fee set forth in each
respective Co-Marketing Purchase Agreement. Such fee shall be calculated by MMC
and paid as part of the Financing Payments transfer.
9. Customer Defaults.
(a) General. In the event the monthly report delivered by MMC
pursuant to Section 6(a) or the reconciliation delivered by MDA Capital or
LySonix pursuant to Section 6(b) shall initially indicate that a customer of
Co-Marketed Products is in default under its payment or purchase obligations,
MMC's sole responsibility shall be to contact, in consultation with MDA
Capital, such customer to seek timely payments; provided, however, that if MDA
Capital has notified MMC or MDA Capital's intent to exercise MDA Capital's
enforcement or collection rights under the Customer Financing Documents with
respect to a customer, then MMC shall cease collection efforts with respect to
such client until otherwise notified by MDA Capital. In the event MMC's efforts
to contact such customer do not result in a cure of the customer's default, MDA
Capital assumes full responsibility for enforcement and collection of the
Financing Payments.
(b) Customer Equipment Payoff. In the event a customer
determines to pay off in advance of the scheduled final payment date under the
Financing Documents such customer's purchase of the LySonics Products purchased,
MDA Capital and MMC agree that from such payoff proceeds MDA Capital shall be
entitled to receive and retain an amount equal to the amount that when added to
the amounts previously received by MDA Capital on account of such LySonix
Products equals the total MMC Funds Transfer Commitment as set forth on Annex A
hereto and MMC shall be entitled to receive and retain the balance of such
payoff proceeds.
10. Term and Termination.
(a) Term. This Agreement shall be effective as of the date hereof,
and shall continue until the termination by one of the parties hereto pursuant
to the term of this Agreement. Notwithstanding termination, the obligations of
MMC with respect to the receipt, maintenance and disposition of Financing
Payments shall not cease.
(b) Termination.
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(i) MDA Capital reserves the right to terminate this Agreement
immediately upon written notice in the event that MMC or LySonix is in breach
of any material obligation under this Agreement or any document or instrument
executed and delivered by MMC or LySonix pursuant to this Agreement.
(ii) Each party reserves the right to terminate this Agreement,
upon [ninety (90)] days' written notice to the other parties.
11. Miscellaneous Provisions.
(a) Notices. Notices, demands and requests of any kind which either
party may be required or desire to serve upon the other hereunder shall be in
writing and signed by the party so giving notice, and shall be effective when
personally delivered or telecopied with a mailed confirming copy or 24 hours
after dispatch by Federal Express or equivalent overnight delivery service,
carriage prepaid, or 72 hours after dispatch by regular mail, postage prepaid
addressed to:
MMC:
XxXxxx Medical Corporation
000 Xxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: C. Xxxxx Xxxxxxxx, Ph.D.
Facsimile: 000-000-0000
LySonix:
LySonix, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Glove
Facsimile: 000-000-0000
MDA Capital:
MDA Capital, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxx XxXxxx
Facsimile: 000-000-0000
or to such other address as any party may from time to time designate pursuant
to this Section 11(a).
(b) Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of California applicable to
contracts made and to be performed wholly within such State, and without to the
conflicts of laws principles thereof.
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(c) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument. In making
proof of this Agreement it shall not be necessary to produce or account for
more than one counterpart.
(d) Successors in Interest. Each and all of the covenants,
agreements, terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and, to the extent permitted by
this Agreement, their respective successors and assigns.
(e) Integration. This Agreement, together with the MDA Capital
Master Agreement, constitutes the entire agreement among the parties pertaining
to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of such parties in connection herewith. This
Agreement may not be changed, terminated or discharged orally.
(f) Severability. In the event that any provisions of the Agreement
or part thereof shall be held invalid, illegal or unenforceable in any respect
by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provisions or part hereof.
(g) Waivers. The failure of any party to seek redress for violation
of or to insist upon the strict performance of any covenant or condition of
this Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of any original violation.
(h) Headings. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
(i) Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
participant shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights at
law or in equity.
(j) Attorney's Fees. In any action or proceeding brought by either
party hereto to enforce any provision of this Agreement or to seek damages for
a breach of any provision hereof, or where any provision hereof is successfully
asserted as a defense, the prevailing party shall be entitled to recover
reasonable attorney's fees in addition to any other available remedy.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Co-Marketing
Agreement upon the date first written above.
XxXXXX MEDICAL CORPORATION,
a California corporation
By: /s/ [SIG]
------------------------------------
Its: PRESIDENT
--------------------------------
LYSONIX, INC.,
a Nevada corporation
By: /s/ XXXXXXX X. GIAVE
------------------------------------
Its: PRESIDENT
--------------------------------
MDA CAPITAL, INC.,
a Nevada corporation
By: /s/ XXXXX XXXXXXX
------------------------------------
Its: PRESIDENT
--------------------------------
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SCHEDULE 2(b)
LYSONIX TERMS
Sale Price: Equal to 60% of LySonix, Inc.'s transaction strike price
(stated price to customer).
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EXHIBIT 2(c)
CUSTOMER SALES FORMS
1. Breast implant and Upcharge Agreement.
2. Sales Worksheet.
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XxXXXX MEDICAL / LYSONIX
BREAST IMPLANT / ULTRASONIC SURGICAL SYSTEM COLLECTION AGREEMENT
This Agreement is established between XxXxxx Medical Corporation ("XxXxxx") and
----------------------------------------------------------------------
Name:
----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Phone:
----------------------------------------------------------------------
("Physician").
Physician has purchased a Lysonix System from Lysonix, Inc. / MDA Capital, Inc.
Physician wishes to satisfy the payment for the Lysonix System by purchasing
XxXxxx products with an added charge.
XxXxxx wishes to sell breast implants with an added charge and forward on
behalf of Physician the appropriate portion of the added charge for XxXxxx
products purchased by Physician to satisfy the payment terms associated with
Lysonix System.
XxXxxx and Physician also agree to the following:
Physician agrees to:
A. Purchase from XxXxxx a minimum of ______ of the XxXxxx Medical
Style ______ Breast Implants ("Implant") within a ______ year
period, commencing on ________________ (date) and ending on
___________________ (date).
B. Purchase a minimum of ______ Implants every six months.
C. Pay a price of $______ for each Implant; such price including a
base price of $______, an added charge of $______, and an
applicable sales tax on the purchase of the Lysonix System of
$______.
XxXxxx agrees to:
A. Collect a payment for the Implants from Physician and forward to
MDA Capital, Inc. a payment for the Lysonix System on behalf of
Physician.
B. Periodically, notify MDA Capital, Inc. of Physician's performance
under this Agreement.
In the event Physician wishes to satisfy this Agreement by purchasing a XxXxxx
implant other than that defined in Physician Section A of the Agreement, XxXxxx
will establish a standard price for the desired implant and Physician will pay
the standard price plus the added charge and sales tax increments as specified
in Physician Section C of this Agreement.
Should the Physician fail to fulfill any obligation of this Agreement, XxXxxx
will notify MDA Capital, Inc. of such failure to perform. Such notification
could result in MDA Capital, Inc. enforcing the purchasing agreement terms, and
may involve removal of the Lysonix System.
Physician understands the XxXxxx is not responsible to make any payments to MDA
Capital, Inc., which have not been paid to XxXxxx by Physician under this
Agreement.
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Surgeon Signature Date
--------------------------------------------------- ------------------------
XxXxxx Medical Representative Signature Date
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XxXXXX MEDICAL/LYSONIX
ULTRASONIC SURGICAL SYSTEM AND BREAST IMPLANT
UPCHARGE WORKSHEET
A. Breast Implant Style _____________________________________________
B. Number of Augmentations Per Year _________________________________
C. Breast Implant Price $___________________________________________
D. Desired LySonix System ___________________________________________
(Workstation, Generator only, or Generator with Irrigator)
E. Desired Payment Period: _______________________ yr(s)
(1 or 2 years)
F. Number of Implants to be Included in Payment Plan ________________
(B times 2 Implants times E)
G. LySonix System Price $____________________________________________
H. State Tax @ ___________% = $_________________
(G x % Tax)
I. Less LySonix System Down Payment (optional) < $___________________>
J. Net LySonix System Payment Balance $______________________________
(G plus H minus I)
K. Implant Upcharge for LySonix System: $____________________________
(J divided by F)
L. Total Implant Cost including LySonix System: $____________________
(C plus K)
________________________________ _________________________________
LySonix Regional Manager XxXxxx Medical Regional Manager
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EXHIBIT 3(b)
FORM OF CO-MARKETING FUNDS TRANSFER AGREEMENT
XxXXXX MEDICAL CORPORATION/MDA CAPITAL, INC.
This CO-MARKETING PURCHASE AGREEMENT is entered into as of the date set
forth below between MDA Capital, Inc., a Nevada corporation ("MDA Capital") and
XxXxxx Medical Corporation, a California corporation ("MMC") with reference to
the following facts:
WHEREAS MDA Capital, LySonix and MMC have entered into a Co-Marketing
Agreement dated as of January 1, 1998; capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Co-Marketing
Agreement.
WHEREAS LySonix and MMC have agreed to co-market their respective
products to the customer identified below (the "Customer") pursuant to the
terms of the Co-Marketing Agreement (the "Transaction").
WHEREAS in connection with the Transaction, LySonix and MMC have entered
into the Sale Documents identified in Annex B hereto.
WHEREAS MDA Capital has agreed to provided Customer Financing in
connection with the Transaction pursuant to the terms of this Co-Marketing
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements of the parties contained herein, the
parties agree as follows:
1. Purchase; Financing. MDA Capital is concurrently herewith
purchasing from LySonix and LySonix is concurrently transferring and conveying
to MDA Capital the equipment identified in the Sale Documents in consideration
of the payment by MDA Capital to LySonix of the purchase price set forth in an
invoice being concurrently delivered by LySonix to MDA Capital. MDA Capital
hereby agrees to provide financing to the Customer pursuant to the Customer
Financing Documents identified in Annex C hereto. MDA Capital interest rate
charged will be the higher of 10%, or the Prime Rate plus 1-1/2% annual simple
interest.
2. Payment and Collection of Gross Revenues and Financing Payments.
(a) The parties agree that MMC shall act as collecting agent with
respect to all Gross Revenues to be received in connection with the
Transaction and all Financing Payments to be included therein, which
Financing Payments shall be received, held and disposed of in accordance
with the Co-Marketing Agreement.
(b) The parties agree that the schedule included in Annex A hereto of
the (i) Customer, (ii) Purchase Price, (iii) Gross Revenues, (iv) Commitment
Period, (v) Financing Payments, (vi) Financing Fee, (vii) LySonix Purchase
Credit and (viii) MMC Sales Fee, the MMC
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Sales Fee accurately sets forth the terms of the transaction between the
parties hereto as contemplated hereby and by the Co-Marketing Agreement
with respect to the Transaction.
IN WITNESS WHEREOF, the parties hereto have executed this
Co-Marketing Purchasing Agreement as of the date set forth above.
XxXXXX MEDICAL CORPORATION,
a California corporation
By:
-------------------------------------
Its:
---------------------------------
MDA CAPITAL, INC.,
a Nevada corporation
By:
-------------------------------------
Its:
---------------------------------
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ANNEX A
TO CO-MARKETING FUNDS TRANSFER AGREEMENT
Terms of Financing and Payments
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A. Date:
B. Transaction Reference:
C. Customer:
D. Equipment:
E. MMC Style No.: Style No.______
F. Equipment Gross Price: $_______
G. Sales Tax (%/Total): _______%/______
H. Equipment Price to Customer: $_______
I. Less LySonix Agreed Discount Percent (%): _______%
J. MDA Capital/MMC Discounted Price: $_______
K. MDA Capital Financing Fee:
1. Total: $_______
2. Per Unit (K-1/L.1.a): $_______
L. Commitment Period:
1. MMC Implant Commitment (a. Units/b. Price/c. Price + a._______/b. $_______/
Tax/d. Period): c. $_______/d. _______
2. Periodic Commitment (a. Units/b. Period): a._______/b._______
M. LySonix Purchase Credit (Applicable Upcharge) (H/L.1.a): $_______
N. MMC Funds Transfer Commitment:
1. Total (G + J + K1): $_______
2. Unit (N/L.1.a): $_______
O. MMC Funds Transfer Fee:
1. Unit (M-N.2): $_______
2. Total (O.1 x L.1.a): $_______
