1
EXHIBIT 10.3
(EXHIBIT "A")
DISTRIBUTOR AGREEMENT
THIS AGREEMENT, is made this 7th day of March, 1997, between
HealthTronics, Incorporated, a corporation created and existing under the laws
of the State of Georgia, with its corporate address at 00 Xxxx Xxxx Xxxxxx,
Xxxxx X, Xxxxxxxx, Xxxxxxx 00000 (hereinafter "HI"), and U.S. Lithotripsy, LP
or it's assigns, a Limited Partnership created and existing under the laws of
the State of Texas, with its corporate address at 000 Xxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx 00000 (hereinafter "USL").
RECITALS:
A. HI distributes urological equipment including extracorporeal shock
wave lithotripters and other high technology medical devices as well as
accessories, supplies, consumable, and renewal parts.
B. USL is in the business of providing equipment for use in the
treatment of renal lithiasis patients within the guidelines of the approved FDA
protocol for the Equipment as defined in paragraph 2(d) below.
C. HI desires to increase its potential for sales of Equipment in
various territories.
D. HI desires to assure proper service of Equipment sold by USL.
E. HI and USL desire that USL promote and increase the sales and use
of HI Equipment in the Licensed Area.
F. HI owns all of the Proprietary Rights to distribute and sell the
Equipment within the United States of America.
G. USL has agreed to obtain from HI and HI has agreed to grant to USL
an exclusive license to sell, distribute, use, lease, rent, and franchise the
Equipment in the Licensed Area.
NOW, THEREFORE, in consideration of the terms, conditions, agreements
and covenants set forth herein and for good and valuable consideration, the
receipt, adequacy and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, HI and USL agree as follows:
1. RECITALS. The above Recitals are true and correct and are
incorporated herein by reference.
2. DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the definitions set forth below:
1
2
a. "HI" shall mean HealthTronics, Incorporated, a corporation created
and existing under the laws of the State of Georgia, with its corporate address
at 00 Xxxx Xxxx Xxxxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000.
b. "USL" shall mean U.S. Lithotripsy, LP, a limited partnership
created and existing under the laws of the State of Texas, with its corporate
address at 000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx 00000.
c. "HMT" shall mean High Medical Technologies, the manufacturer of the
Equipment and a foreign corporation created and existing under the laws of
Switzerland, with its corporate address at Xxxxxxxxxxx 0, XX-0000 Xxxxxxxxxxx,
Xxxxxxxxxxx.
d. "Equipment" shall mean shock wave lithotripters that perform
extracorporeal urological lithotripsy treatment for renal lithiasis patients,
currently called the LithoTron(TM), which includes a shock wave system, a
multi-functional 3-axis treatment table, compatible C-arm, five (5) electrodes,
currently called NewTrode(TM), parts and components, accessories for stone
focusing and patient positioning and all future models, upgrades, improvements,
versions, designs, alterations.
e. "Improvements" shall mean all improvements or alterations related
to the Equipment, as defined in paragraph 2(d) above, or the design,
manufacture, use or sale thereof, which may be conceived, acquired or developed
and which will be brought to the market of the United States of America.
f. "Defective Parts" shall mean any part or component of the Equipment
that breaks or fails to function properly within a period of three hundred and
sixty five (365) days after the date of installation. Equipment purchased by
USL may be tested, at USL's option, at the HI facility.
g. "Proprietary Rights" shall mean all patents, patent applications,
patentable ideas, trade secrets, Confidential Information, know-how, and other
proprietary or valuable information relating to the design, manufacture and use
of the Equipment including all rights that HI has with respect to the Equipment
under license from a third party, and including similar additional rights
hereafter generated or acquired by HI, including all rights and patents, patent
applications, and patentable information for improvements in the Equipment.
h. "License" shall mean the licenses granted by HI to USL, including
the license granted by this Agreement for the Licensed Area, as well as the
licenses granted subsequently by written agreement between the parties for other
Licensed Areas.
i. "Licensed Area" shall mean the states of Texas, Arkansas, Oklahoma,
New Mexico, Colorado, Kansas, Nebraska, Missouri, Alaska, Arizona, California,
Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming in the
United States of America and all other territories subsequently licensed by HI
to USL pursuant to a written agreement.
2
3
j. "Confidential Information" shall mean any and all information
shared between the parties regarding the patents, improvements, know-how,
Proprietary Rights, technical or commercial matters derived from negotiation
and performance of this Agreement, including but not limited to software
programs, manuals, documentation, reports, business plans, finances, investors,
licensees, officers, directors, and other proprietary and business information,
except that no information shall be deemed confidential if (i) it is or,
through no fault of the receiving party, becomes available to the public and,
therefore, part of the public domain; (ii) is already known to, or has been
independently developed by, the receiving party as evidenced by its written
documents on hand; or (iii) becomes lawfully available to the receiving party
from an outside source.
k. "National Account" shall mean any company and/or lithotripsy
provider other than USL that own and/or operate four (4) or more lithotripters
in more than one (1) State.
l. "Effective Date" shall mean the day, month and year that the United
States Food and Drug Administration (FDA) grants to HI a full and unrestricted
approval for the sale and use of the Equipment within the boundaries of the
United States of America.
3. GRANT OF LICENSE.
a. Exclusive License. HI herein grants to USL or its assigns the
exclusive right to sell, lease, distribute and use the Equipment specified in
paragraph 2(d) of this Agreement, within the Licensed Area as described in
paragraph 2(i) of this Agreement and all Licensed Areas agreed upon in writing
in the future. Should HI become aware of a prospective customer in the Licensed
Area specified in paragraph 2(i), HI will advise customer to contact USL
directly. HI will also immediately notify USL of said prospective customer.
Should USL become aware of a prospective customer in a State that is not within
the Licensed Area specified in paragraph 2(i), USL will immediately advise said
prospective customer to contact HI directly. USL will also immediately notify
HI of any such prospective customer.
b. Non-exclusive License. HI hereby authorizes USL or its assigns the
right to sell, lease, distribute and use the Equipment, specified in paragraph
2(d) of this Agreement, in those States that are not within the Licensed Area,
as described in paragraph 2(i) of this Agreement, provided however that any
such sale, lease, distribution or use has the express written approval of HI's
President. HI and USL will keep each other appraised of any prospective
customer, contact and/or effort being made in those States that are not within
the Licensed Area in an effort to avoid conflicts and duplication. In any such
case of conflict, the ruling of HI will be binding and final.
c. Trademarks. HI hereby grants to USL the exclusive right to use HI's
name, trademarks, labels, and other advertising media in connection with the
marketing, sale, lease, sublicense, franchise and use of the Equipment in the
Licensed Area.
d. Franchise Rights. HI hereby grants to USL the exclusive right to
franchise and distribute the Equipment in the Licensed Area subject to the
terms and conditions of this Agreement.
3
4
e. Sublicenses. Upon the prior written approval of HI's President,
which approval may not be unreasonably withheld, USL may grant to third parties
sublicenses of the license and other rights obtained by USL hereunder, so long
as any such sublicensee agrees in writing to be bound by the terms of this
Agreement. Having given its prior written approval of any such sublicense, HI
agrees to honor any and all written agreements between USL and its sublicensees
in accordance with this Agreement.
f. Equipment Software and Information. HI hereby grants to USL a
nonexclusive license in such software, manuals and other documentation that HI
has in conjunction with the Equipment actually sold to USL and which are
incident to the use of the Equipment. This license is solely for the purpose of
providing and sublicensing said software materials to the ultimate user of the
Equipment for use with the Equipment; provided, however, that HI shall provide
to USL through this non-exclusive license all software, manuals and other
documentation with respect to the Equipment which HI generally provided to its
direct customers or similar distributors. Notwithstanding the foregoing, such
programs and materials shall remain the property of HI and USL shall not (i)
supply any such software or other materials without first obtaining a
sublicense agreement signed by the user of the software or materials, (ii) make
any changes in such software or materials, or (iii) authorize or otherwise
permit its customers or other third parties to infringe on HI's intellectual
property rights in software and materials.
g. Improvements. HI hereby grants USL an exclusive license to the
Improvements and for the Licensed Area. HI and USL each agree to disclose to
the other the Improvements of which they become aware. Each party grants to the
other the right to reasonable access to and inspection of its facilities and
that of its vendors and subcontractors, and will make all personnel involved
with the subject of the other's inquiries available to such other party for
cooperation, questioning, demonstration and explanation. Each party shall
cooperate fully and timely in providing and executing all documents and things
necessary to perfect the rights and licenses granted under this Agreement, and
to enforce those rights and licenses.
h. Service. HI hereby grants USL the exclusive right to provide
service for all Equipment actually sold, leased, franchised, sublicensed,
distributed, or used by within USL's Licensed Area.
4. HI'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Authority. HI hereby represents, warrants and covenants to USL that
it is a corporation duly organized and existing in good standing under the
State of Georgia, that it has the authority to enter into and perform this
Agreement, and that no other individual or entity has the authority to enter
into and perform this Agreement. Further, HI has the right, through
its agreement with HMT, to enter into this Agreement for this Licensed Area and
that by entering into this Agreement with USL, will not constitute a default
under HI's agreement with HMT for distribution rights in this Licensed Area.
b. No Conflict or Breach. The execution, delivery and performance of
this Agreement by HI does not conflict with or constitute a breach or default
by HI under any other agreements to which it is a party or by which it is
bound.
4
5
c. Proprietary Rights. HI hereby represents, warrants and covenants
that it is licensing to USL the Proprietary Rights and Licenses to the
Equipment free and clear of all liens, charges or encumbrances, and that HI has
the full right, power and authority to grant and enforce the licenses granted
hereunder. The Proprietary Rights included that know-how, trade secrets and
confidential material presently existing and hereafter coming into existence
for the Equipment.
d. Approval. The execution, delivery and performance of this Agreement
has been approved by HI.
e. Disclosure. HI has disclosed, or will disclose, to USL all
information relating to the Equipment, and the Proprietary Rights necessary for
USL to conduct its anticipated business of marketing, selling, leasing,
distributing, licensing, franchising, installing, training and using such
Equipment. HI shall continue to provide USL with such additional information
relating to such Equipment, any Improvements and any and all other Licensees
and/or Franchisees as they become available to HI or which USL, in good faith,
reasonably requests.
f. Warranties. All Equipment purchased from HI under the terms and
conditions of this Agreement shall have a twelve (12) month warranty from the
date of installation for all parts and labor. A copy of the warranty shall be
attached to each unit of Equipment.
g. Equipment. HI hereby warrants that each unit of Equipment shall be
free of material defects upon delivery to USL, and shall be capable of being
installed and adjusted to perform in accordance with HI specifications. HI
shall either repair or exchange any defective part or component of the
Equipment as soon as practicable, but not later than two (2) weeks from written
notification of defect or needed repair. All parts so replaced shall be the
property of and shall be returned to HI.
h. Warranties Assigned. HI hereby assigns to USL the Warranties
provided by HMT for the manufacturing of the Equipment. HI further assigns to
USL the Warranties provided by the manufacturers of components of the Equipment
manufactured by parties other than HMT, if any, which components may include
(but shall not necessarily be limited to) shockproof cables, motors,
generators, spark plugs, and membranes.
i. Governmental, Regulatory and Other Approval. It is the
responsibility of HI to see that the engineering, design, and manufacture of
the Equipment are completed in compliance with required governmental,
regulatory, and any and all other approvals required in the Licensed Area. It
is the responsibility of HI to work with USL to obtain the necessary
governmental, regulatory, and any and all other approvals on marketing,
selling, leasing, distributing, licensing, franchising, installing, training
and using the Equipment in the Licensed Area.
5. HI RESPONSIBILITIES.
a. Training. HI shall train technical, service and training personnel
to be designated by USL. Such training shall be conducted at a location chosen
by HI and at
5
6
[TO COME]
6
7
6. USL's RESPONSIBILITIES.
a. Promotion. USL shall devote its best efforts to promote the sale,
lease, franchise and use of the Equipment in the Licensed Area and shall
exercise the highest standards of expertise and professionalism to ascertain
the needs of customers to fulfill customer requirements.
b. Sales and Service Organizations.
(1) USL shall maintain an adequate and properly trained sales
organization qualified to sell the Equipment and a service organization trained
and qualified to install, train and service the Equipment.
(2) Within fourteen (14) days of USL's written request that HI train
USL's service and training personnel, HI shall notify USL of the date, time,
and location of the training course or courses available to such personnel.
Until the time that such course(s) are available and completed, HI will provide
the required service and training at no cost to USL. An authorized
representative of USL shall be allowed to accompany such service and training
personnel. All revenues generated from such service work will remain the sole
property of USL.
c. Installation. USL shall install all Equipment placed in a location
within the Licensed Area by USL in accordance with HI's recommended
installation procedures. Installation shall include unpacking, assembly,
testing, calibration, and other procedures required to prepare the Equipment
for use in accordance with HI's specifications, manuals, guidelines and normal
practices and industry standard. Proper documentation, manuals, and other
relevant documents shall be provided by HI for all new models or significant
upgrades.
d. Service. USL shall assume responsibility for and render service,
including warranty service, on all Equipment placed in a location within the
Licensed Area by USL. Any services supplied by USL shall be performed in a
manner which ensures that the Equipment is free of material defects in
materials or workmanship and IS operating to the manufacturer's specifications.
e. Training. USL shall assume responsibility for and provide all
training, other than that as outlined in Paragraph 6 b.(2), on all Equipment
placed in a location within the Licensed Area by USL. Any training supplied by
USL shall be performed in a manner which encourages that the Equipment will be
used in a safe and practical manner in accordance with the manufacturer's
specifications.
f. Parts. USL agrees to purchase, at a reasonable price, exclusively
from HI those parts which are integral components of the Equipment. USL shall
in no event resell parts except as required in the provision of service within
the Licensed Area pursuant to this Agreement.
9. Safety. USL shall follow HI's procedure for instructing customers
with regard to the safe and competent operation of the Equipment, to ensure, to
the extent possible, their operation in strict compliance with established
safety procedures and applicable laws and governmental regulations. USL shall
report promptly to HI any incidents it may
7
8
detect or learn about concerning customers who are operating Equipment without
safety devices. USL shall notify the FDA of any adverse patient incidence(s) as
required by the FDA. HI WILL provide USL with available relevant instructional
material which it distributes to its customers.
h. No Modifications. USL shall not, without HI's prior written
consent, modify or change in any way any feature of the Equipment, and shall
not in any event modify or remove any safety device or part. If any such
modifications are made by USL (whether with or without the consent of the owner
or operator of the Equipment), USL shall indemnify and hold HI harmless.
i. Regulatory Compliance. USL shall strictly comply with all
governmental rules, orders, regulations, and laws pertaining to the
installation, maintenance, modification, service, or sales of the Equipment and
only accept orders for the Equipment which have received the necessary
approvals from the governmental body with jurisdiction to regulate to use of
such Equipment. In accepting such orders or undertaking such compliance, USL
shall be entitled to rely on the representation of HI with respect thereto as
set forth in Paragraph 40(j). In addition, USL shall promptly and timely comply
with each and every reasonable request that may be made by HI pursuant to any
federal, state, or local law or regulation thereof.
J. Reports. Subject to the confidentiality provisions of this
Agreement, USL shall
(1) immediately advise HI whenever the prices, deliveries, terms, or
other conditions offered by HI are, in USL's opinion not competitive in the
marketplace;
(2) immediately notify HI if it becomes aware that any Equipment or
unit thereof is exhibiting or has exhibited any unusual operating peculiarity;
and
(3) immediately notify HI if it becomes aware of any infringement of
HI's trademarks, copyrights, patents, or other intellectual property rights, or
if it becomes aware that any HI label, plaque or other identifying xxxx on any
Equipment or material has been removed, destroyed or defaced.
k. Inspections. Upon request by HI, USL shall use its best
efforts to aid HI in inspecting the Equipment installed by USL on
customer's premises.
l. Sales Leads. USL shall immediately notify HI of all sales leads and
inquiries concerning the Equipment developed or received from
customers/prospects, whether within or without the Licensed Area, which USL is
unable to serve for any reason whatsoever, and authorizes HI or its designee to
market Equipment to such customers or prospects.
m. Conflict of Interest. Should USL enter into an agreement with
anyone other than HI relating to the sales, distribution, lease, manufacture or
use of a shock wave lithotripter competitive to the Equipment, such action will
constitute a breach of this Agreement.
8
9
7. PRICES AND TERMS.
a. Orders and Acceptance. All orders for Equipment shall be submitted
in writing to HI at its office Marietta, Georgia, and shall be subject to and
governed by the provisions of this Agreement. Orders shall specify the
purchase order number, requested model number, requested delivery date, and
shipping instructions, and shall contain no contingencies.
b. Takedown. Within three hundred sixty-five (365) days after the
Effective Date of this Agreement USL shall submit purchase orders, the required
down payments and USL's requested delivery schedules on a minimum of twelve
(12) units of the Equipment. It is also agreed by both USL and HI that any
delivery of Equipment within the Licensed Area through sources other than the
Exclusive Licenses granted to USL by this Agreement (i.e. National Accounts)
shall be considered a credit toward the number of units required by this
section. If the stated number of units required by this section is not achieved
within three hundred and sixty five (365) days from the Effective Date of this
Agreement, both USL and HI agree to review the states in which USL has the
Exclusive License as defined in this Agreement.
c. Delivery. HI shall make its best effort to deliver all orders for
Equipment made by USL on the requested delivery date, but no later than a
reasonable time frame after the requested delivery date. It is also agreed that
if HI's delivery time extends beyond the requested delivery date, USL will
nonetheless be deemed to have complied with its requirements, provided the
purchase order and required down payment in question was submitted within the
time period as described in paragraph 8(b) above.
d. Product Prices. HI agrees that the price to USL for Equipment shall
be equal to that which HI pays for the same, which includes payments by HI to
HMT, related entities, and shipping costs (F.O.B. hospital). These prices are
currently shown on the USL Price List attached hereto as Exhibit 1 as revised
from time to time. A violation of this provision by HI will require
reimbursement to USL equal to the difference in the price HI paid for the
Equipment and the price at which HI offered the Equipment to USL, or may be
treated as a breach of this Agreement, at USL's option. Any such reimbursement
must be paid within thirty days of HI's receipt of notification of the
violation. The Retail Price to USL's customers within the Licensed Area shall
be established and controlled by USL, as shown on the USL Price List as revised
from time to time. For the term of this Agreement, prices to USL shall be based
on the USL Price List attached hereto as Exhibit 1, and may be increased only
upon ninety (90) days prior written notice to USL. Price increases will not
apply to those purchase orders and related down payments that have been
received by HI prior to the written notice or to those purchase orders and
related down payments that are received prior to the price increase. Any
decrease in the price to USL shall become effective immediately and will apply
to any purchase orders from that day forward.
e. Additional Charges.
(1) Technical Support. If USL is in need of technical support, it
may request such support from HI. Charges for technical support shall be as
follows: USL shall pay 75% of HI's then current time and materials charges for
support provided. If
9
10
HI purchases labor from USL, the same charges will apply. If HI cannot supply
technical support on a timely basis (3 days from request unless the Equipment
is rendered nonfunctional and the user requires more prompt assistance), then
USL shall have the right to obtain such technical support from any other
available source.
(2) Other Services. Except as expressly provided by this Agreement,
all other services provided by HI (including but not limited to, additional
Equipment testing conducted at USL's request) shall be billed to USL at HI's
then current time and materials rates.
f. Payment Terms. The terms of payment applicable to sales to USL
shall be
EQUIPMENT
---------
USL shall pay HI 25% of the Price to USL, as outlined in the attached
USL Price List incorporated into this Agreement as Exhibit 1, with
USL's purchase order and requested delivery schedule.
USL shall pay HI 50% of the Price to USL, as outlined in the attached
USL Price List, upon delivery of the Equipment outlined in USL's
purchase order.
USL shall pay HI 25% of the Price to USL, as outlined in the attached
USL Price List, following installation of the Equipment delivered.
PARTS AND OTHER FEES AND CHARGES
--------------------------------
Net 90 days from invoice date, with a 2% discount for payment in
full within 30 days.
g. Past-Due Amounts. Should it become necessary to place USL's account
with a collection agency, or with attorneys for collection or legal action to
enforce payment of any amount owed HI, USL agrees to pay all costs of
collection, including, but not limited to reasonable attorneys' fees and court
costs.
h. Special Prices or Terms. Any special prices, deliveries, terms, or
other conditions sought by USL to meet competition in any single case must be
conveyed to HI in writing for approval by an officer of HI, or his designee,
and shall be limited to that case and not constitute a precedent.
8. TERM AND TERMINATION.
a. Term. Unless sooner terminated as provided in this paragraph, this
Agreement shall be effective as of the date this Agreement is made by the
authorized signatures of both USL and HI and shall continue in effect until
July 1, 2006, and (unless terminated by either party on written notice provided
thirty (30) days prior to the expiration of the then current term or renewal
term) shall be automatically renewed for an unlimited number of additional
one-year renewal terms.
10
11
b. Termination. If either party shall default materially in the
performance or observation of any of its obligations under this Agreement, and
such default shall continue for one hundred eighty (180) days after written
notice specifying such default has been delivered to the other party, the
non-defaulting party may terminate this Agreement upon five (5) days written
notice delivered to an officer of the defaulting party. Notwithstanding the
foregoing, the failure by USL to perform any obligation hereunder relating to
payment of money by USL for a period of sixty (60) days after written notice
thereof from HI shall constitute a material breach of this Agreement. The
effect of the termination of the Agreement by HI shall be that all of the
rights granted to USL under Paragraph 3 shall revert to and automatically be
fully vested in HI.
c. EVENTS OF DEFAULT.
(1) If either party fails to observe or perform any warranty,
provision, covenant or condition of this Agreement, and such failure shall
continue for more than thirty (30) days after receipt of written notice thereof
by the other party; or
(2) If any assignment is made of this Agreement or the party's
business for the benefit of the party's creditors; or
(3) If any receiver or trustee in bankruptcy or similar officer is
appointed to take charge of the party's property, or if the party is
adjudicated bankrupt.
d. If this Agreement is Terminated:
(1) USL shall permit HI to repurchase any Equipment then in the
possession of USL at prices equal to those paid by USL.
(2) USL shall cease using the name, trademarks and other
intellectual property of HI. USL shall return to HI all confidential material
in its possession (except that USL may retain only that confidential
information as necessary to continue servicing the Equipment owned by USL's
customers).
(3) Termination of this Agreement shall not release either party
from its obligation to make payment of any sums due the other hereunder for
damages incurred by reason of the other's breach unless agreed to in writing by
both parties.
(4) With respect to orders for Equipment accepted prior to the
termination of this Agreement, HI agrees that, if there is a valid and binding
obligation of USL to deliver such Equipment, HI will deliver such Equipment
notwithstanding the termination. HI shall have the option to perform
installation, warranty and maintenance service pursuant to agreements which USL
has negotiated with customers concerning such Equipment. If HI does not agree
to install or provide warranty and maintenance service with respect to such
Equipment, USL may provide such installation, warranty and maintenance service
notwithstanding the termination of this Agreement.
(5) If this Agreement is terminated, USL shall have the right to
maintain existing service contracts.
11
12
e. All of the obligations of HI under this Agreement with respect to
warranty shall continue in full force and effect notwithstanding expiration or
termination of this Agreement.
f. If HI is required to take over service of USL's accounts because
USL is unable to handle the service, no compensation shall be paid to USL.
9. FORCE MAJEURE. Neither USL nor HI shall be liable for loss, damage,
or delay resulting from any cause whatsoever beyond its reasonable control
including, without limitation, acts of God, fire, flood, strike, lockout,
factory shutdown or alteration, civil or military authority, or instruction by
any federal, state, or local government or any department, agency, or
representative thereof, insurrection, riot, war, or embargo.
10. RISK OF LOSS. Risk of loss or damage to the Equipment, or any part
thereof, shall pass to USL upon receipt.
11. INSURANCE. HI shall carry coverage of no less than $1,000,000 of
product liability coverage and shall name USL as an additional insured under
such policy. USL shall carry no less than $500,000 of liability insurance
covering its activities with respect to the Equipment initially, and will
increase such amount to $1,000,000 six (6) months from the Effective Date, and
shall name HI as an additional insured under such policy. Both HI and USL shall
provide the other with a certificate of insurance to confirm the
aforementioned.
12. NON-SOLICITATION. HI and USL agree that, during this Agreement,
including all renewal terms, each party will refrain from directly or
indirectly approaching, soliciting, hiring or otherwise retaining or utilizing
the services of any person who is an employee of the other party, as
hereinafter defined, both directly or indirectly as an agent, partner or joint
venture with any third party. As used herein, the term Employee shall mean
anyone who works or has worked for the other, during the term of this Agreement
and/or any extensions thereof.
13. ATTORNEY'S FEES. In the event any party hereto brings a lawsuit or
arbitration to enforce its rights hereunder, the prevailing party in such
lawsuit or arbitration shall be entitled to its costs, including reasonable
attorney's fees, in connection therewith.
14. INDEPENDENT CONTRACTOR RELATIONSHIP. The parties do not intend
that this Agreement shall create an employment relationship between them, or
provide any party with any agency rights with respect to the other party. Each
party agrees that no other party shall have the rights to bind the other party
to any obligation or contractual arrangement except as expressly set forth
above.
15. MISCELLANEOUS.
a. Communications Channel. Upon execution of this Agreement, each
party shall designate a representative with sole responsibility and authority
for communicating on behalf of such party with the other party regarding all
matters relating to the implementation and performance of this Agreement. Such
representative may be
12
13
changed permanently or temporarily by written notice provided in accordance
with this Agreement. If a party's representative is or is expected to be
unavailable to perform this function any period in excess of one week, the
party shall temporarily or permanently appoint a different employee as
representative. All communication, to the extent practical, shall be in
writing.
b. Waivers and Modifications. Any modification, addition to or waiver
of any of the terms and conditions of this Agreement shall not be effective
unless in writing and signed by an authorized representative officer of each
party. The terms contained herein shall control, notwithstanding any different
or additional terms contained in any document or purchase order submitted by
USL. No relaxation, forbearance or indulgence by either party in enforcing any
of the terms and conditions of this Agreement or the granting of any time to
any other party shall prejudice of restrict the rights and powers of either
party hereunder, nor shall any waiver of any breach hereof operate as a waiver
of a subsequent or continuing breach hereof.
c. Notices. Any notice, request, or other communication given
hereunder or in connection herewith shall be in writing, delivered in person or
sent by facsimile transmission ("fax") or registered postage prepaid to the
address of the other party set forth herein or to such address as such party
shall have heretofore designated in writing. Such notice, request, or other
communication shall be deemed delivered when delivered in person or received,
postage prepaid, certified mail, return receipt requested or at the expiration
of one day in the case of a fax.
d. Choice of Law. This Agreement shall be interpreted in accordance
with and governed in all respects by the law of the State of Georgia and
jurisdiction and venue for all matters regarding this Agreement shall be in
Atlanta, Georgia.
e. Severability. Should any provisions of this Agreement be found
invalid or unenforceable by a court or arbitration panel of competent
jurisdiction, or by operation of any applicable law, it shall not affect the
validity or any other provision contained herein.
f. Arbitration. If there is any dispute, disagreement or controversy
between the parties under this Agreement, the same will be submitted for
arbitration in Atlanta, Georgia, or such other location as to which the parties
may mutually agree, by the American Arbitration Association, in accordance with
its rules and procedures as then in effect, and the resulting decision of the
panel of arbitrators will be binding upon the parties hereto and judgment
thereon may be entered in the highest court of any forum, state or federal,
having jurisdiction thereof. The costs of such arbitration will be allocated by
the arbitrators, including attorney's fees.
g. Integration. This Agreement supersedes all prior agreements and
understandings between the parties relating to the subject matter and in
conjunction with the Entity Interest Agreement executed this same day is
intended by the parties as the complete and exclusive statement of their
Agreement. The parties shall not be bound by any representation, affirmation of
fact, course of prior dealings promise or condition in connection therewith, or
usage of the trade not incorporated herein.
13
14
h. Headings. The headings in this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect the meaning
of any term or provision hereof.
WITNESSES: HEALTHTRONICS, INCORPORATED
/s/ By: /s/ Xxxxx Xxxxxxxx, M.D.
--------------------------------------- ----------------------------------
Xxxxx Xxxxxxxx, MD
/s/ As Chief Executive Officer
---------------------------------------
/s/ By: /s/ Xxx Xxxxx
--------------------------------------- ----------------------------------
Xxx Xxxxx
/s/ As President
---------------------------------------
U.S. LITHOTRIPSY, LP
/s/ By: /s/ Xxxxxx X. House
--------------------------------------- ----------------------------------
Xxxxxx X. House
/s/ As President
---------------------------------------
14
