[LOGO] DIOMED
Exhibit 10.11
EVLT MARKETING AND PROMOTION AGREEMENT
EVLT Marketing and Promotion Agreement entered into as of August
29, 2001 between Diomed, Inc., a Delaware corporation having its principal
offices at 0 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("Diomed"), Xx. Xxxxxx X.
Xxxxxx of Austin, Texas (the "Doctor"), and Endovenous Associates, L.P., a
Texas limited partnership with a principal office at 0000 X. Xxxxx Xxxx.,
Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "LP").
RECITALS
WHEREAS, Diomed is in the business of developing, marketing,
manufacturing and selling laser systems for medical applications;
WHEREAS, Diomed has filed a patent application covering design and
function of optical fibers, application number 85.70.75122 15 June 2001,
entitled medical laser device (such patent application, together with all
inventions, discoveries or improvements authored, conceived, developed,
reduced to practice, or otherwise obtained by the Doctor that are
referenced thereinor relate thereto are referred to collectively as the
"Fiber Patent").
WHEREAS, the Doctor is trained and knowledgeable in the use of
lasers for the Endovenous treatment of varicose veins ("EVLT") (EVLT is a
Diomed Trademark);
WHEREAS, the Doctor has formed a single member LP for the purpose
of conducting the activities contemplated by this Agreement;
WHEREAS, Diomed desires to market and sell lasers worldwide for use
in EVLT and is in the process of obtaining FDA approval for the use of its
lasers to perform EVLT;
WHEREAS, the Doctor, acting through the LP, is willing to train
other physicians in the use of the Diomed laser for EVLT and is otherwise
willing to promote the use of the Diomed laser for EVLT all as more
specifically set forth in this Agreement;
WHEREAS, Diomed wishes to engage the Doctor, acting through his LP,
to help maximize Diomed's sales worldwide of lasers for EVLT and the Doctor
and the LP, wish to provide assistance to Diomed in connection with the
marketing and promotion of the lasers for EVLT, all on the terms and
conditions herein set forth;
WHEREAS, For the purpose of this contract EVLT is defined as any
internal Varicose Vein Treatment performed with a laser and a optical
fiber;
NOW, THEREFORE, the parties hereby agree as follows:
I. MARKETING OBLIGATIONS OF THE PARTIES
1.1 Covenant to Promote the Product for EVLT. Subject to the
terms and conditions of this Agreement, Diomed, the Doctor
and the LP shall work together and use their respective
best efforts to promote the use of the Diomed lasers for
EVLT throughout the world during the Term (as hereinafter
defined).
Diomed, Inc. Xxx Xxxxxx Xxxx, Xxxxxx 0&0, XX Xxx 00, Xxxxxxx XX 00000 XXX
Tel: x0 000 000 0000
Fax: x0 000 000 0000 a Email: xxxxxx@xxxxxx-xxxxxx.xxx
xxxx://xxx.xxxxxx-xxxxxx.xxx
UK: Diomed Limited. Cambridge Xxxxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxx XX0 0XX,
Xxxxxx Xxxxxxx a Tel:x00 0000 000000 Fax:x00 0000 000000
Email: xxxx@xxxxxx-xxxxxx.xxx
[LOGO] DIOMED
1.2 Exclusive Promotion. The Doctor and the LP each agrees
that, during the Term (and thereafter as provided in
Section 5.7), he and it shall not actively promote to
third parties any product for EVLT other than Diomed
lasers, optical fibers and associated EVLT kits.
1.3 Proprietary Rights.
1.3.1 The Doctor hereby assigns, grants, conveys and
transfers to Diomed any and all right, title and
interest he has or may have in and to the Fiber
Patent. The Doctor will from time to time execute
and deliver to Diomed such documentation and take
such other reasonable action, at Diomed's expense,
which Diomed may request in order to effectively
carry out this Section and invest in Diomed the
Fiber Patent and title thereto. The Doctor will
assist Diomed in every proper way (but at Diomed's
expense) to obtain and from time to time enforce
rights with respect to the Fiber Patent in any and
all countries, and will execute all documents
reasonably necessary or appropriate for this
purpose. In the event that Diomed is unable for
any reason whatsoever to secure the Doctor's
consent to any document reasonably necessary or
appropriate for any of the foregoing purposes,
(including renewals, extensions, continuations,
divisions or continuations in part), the Doctor
hereby irrevocably designate and appoint Diomed
and its duly authorized officers and agents, as
his agents and attorneys in fact to act for and on
his behalf and instead of him, for the purpose of
executing and filing any such document and doing
all other lawfully permitted acts to accomplish
the foregoing purposes with the same legal force
and effect as if executed by him.
1.3.2 The Doctor and LP hereby acknowledge that "EVLT"
is a trademark of Diomed, and that neither the
Doctor nor the LP has any rights therein. The
Doctor and the LP understand that Diomed intends
to register such trademark with the U.S. Patent
and Trademark Office, and agree to reasonably
cooperate with Diomed so as to permit Diomed to
obtain such registration.
II. Duties of The Doctor
Subject to the terms and conditions of this Agreement, during the
Term:
2.1 EVLT Training of Other Physicians. The Doctor, acting
through the LP, agrees to use his best efforts to
personally train other qualified physicians, as set
forth in Exhibit B, and identified and approved by the
President or the Director of Marketing of Diomed in the
use of Diomed lasers for EVLT. The Doctor will provide
Diomed with a certification in the form attached hereto
as Exhibit A when each physician's training is complete.
2.2 Promotional Activities. The Doctor, acting
through his LP, will use his best efforts
to perform the promotional activities set
forth in Exhibit B, as Exhibit B may be
amended from time to time by written
consent of Diomed and the Doctor.
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2.3 Confidentiality. The Doctor and the LP each acknowledge that
information about Product sales to be provided by Diomed to the
Doctor and the LP hereunder and any other information provided to
the Doctor or the LP and designated as confidential by Diomed at
the time of disclosure constitute confidential and proprietary
information of Diomed and the Doctor and the LP each agree that he
and it will not use such information except in furtherance of the
purposes of this Agreement and will hold such information in strict
confidence. The obligations of the Doctor and the LP under this
Section 2.3 shall be limited to a period of three years from the
date of expiration or earlier termination of this Agreement.
Neither the Doctor nor the LP shall have any obligation of
confidentiality with respect to any information (a) in the public
domain, other than by a breach of this Section 2.3 by either of
them, (b) rightfully received from a third party without any
obligation of confidentiality, or (c) generally made available to
third parties by Diomed without restriction on disclosure.
2.4 Personal Obligation. Notwithstanding the Doctor's use of the LP to
provide services under this Agreement, all obligations of the
Doctor and the LP under this Agreement shall be joint and several
and such obligations may be fully enforced by Diomed against either
the Doctor or the LP should the other party breach this Agreement.
Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the total liability of the Doctor
and/or the LP for damages arising out of this Agreement exceed the
aggregate amount of consideration received by the Doctor and/or the
LP (whether in cash, or exercised options or shares of capital
stock) under this Agreement (it being understood that such
limitation on liability for damages shall not limit Diomed's
ability to seek injunctive or other equitable relief against either
the Doctor or the LP in the event the Doctor breaches his
obligations under Sections 1.2, 1.3, or 2.3).
III. Obligations of Diomed
Subject to the terms and conditions of this Agreement, during the Term
Diomed agrees as follows:
3.1 Initial Payment. With in 60 days of execution of this Agreement, Diomed
will pay the LP the sum of **CONFIDENTIAL TREATMENT REQUESTED**.
3.2 Payment for Training. Within thirty (30) days of receipt of certification
in the form of Exhibit A from the Doctor that training of physicians
pursuant to Section 2.1 has been completed, Diomed will pay the LP
**CONFIDENTIAL TREATMENT REQUESTED** for each such approved training
session per licensed physician. Within thirty (30) days of submission of
receipts, Diomed will reimburse up to **CONFIDENTIAL TREATMENT REQUESTED**
for foreign travel and **CONFIDENTIAL TREATMENT REQUESTED** for domestic
travel for pre-approved lectures/workshops where discussion or
presentation on EVLT is on the agenda.
3.3 Payments Based on Product Sales.
3.3.1 From the Effective Date until termination of this Agreement (by
expiration or earlier termination) or until total payments hereunder
reach **CONFIDENTIAL TREATMENT REQUESTED** whichever first occurs,
and except as described in Section 3.3.2 below, Diomed
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will pay the LP **CONFIDENTIAL TREATMENT REQUESTED** for each
Product (as hereinafter defined, and other than OEM Sales) sold in
North America (defined as Canada and the United States) and
**CONFIDENTIAL TREATMENT REQUESTED** for each Product (other than
OEM Sales) sold in the rest of the world. Payment shall be made
within thirty (30) days of the end of each calendar quarter
following the Effective Date. In the case of OEM Sales (as defined
below), Diomed will pay to the LP **CONFIDENTIAL TREATMENT
REQUESTED** for each Product sold in North America and
**CONFIDENTIAL TREATMENT REQUESTED** for each Product sold in the
rest of the world. An "OEM Sale" shall mean any sale of a Product to
a purchaser under an agreement where the Product is delivered
without a Diomed logo and the purchaser has the rights to separately
brand the Product. Reductions shall be allowed for returned Products
and uncollected accounts. Each payment will be accompanied by a
report as set forth in Section 3.8.
3.3.2 Notwithstanding the payments provided under Section 3.3.1 above, the
parties agree that Diomed may reduce such specified payments should
Diomed earn an overall Gross Margin on the Products of less that
**CONFIDENTIAL TREATMENT REQUESTED**. Should on a quarterly basis,
Diomed's Gross Margin fall below **CONFIDENTIAL TREATMENT
REQUESTED** then the payments specified in Section 3.3.1 above shall
be adjusted as follows:
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED** but above **CONFIDENTIAL
TREATMENT REQUESTED**
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED** but above **CONFIDENTIAL
TREATMENT REQUESTED**
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED** but above **CONFIDENTIAL
TREATMENT REQUESTED**
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED** but above **CONFIDENTIAL
TREATMENT REQUESTED**
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED** but above **CONFIDENTIAL
TREATMENT REQUESTED**
- **CONFIDENTIAL TREATMENT REQUESTED** reduction when Gross Margin is
below **CONFIDENTIAL TREATMENT REQUESTED**
In no case shall the reduction exceed **CONFIDENTIAL TREATMENT
REQUESTED**. For purposes of this Section, Gross Margin shall be
determined quarterly under generally accepted accounting principles
in the United States, with the payments under this Agreement
included in cost of sales. The Gross Margin shall be computed to two
places (e.g., ".48") with fractions of one half or less rounded down
and fractions greater than one half rounded up. For example the
number 49.55% would be rounded up to 50%. Should a reduction under
this Section apply in any quarter, Diomed will provide documentation
for the reduction and the LP may request that Diomed's independent
auditors (at Diomed's expense) and as part of the annual audit,
certify such computation. Such a request must be made in writing
within 45 days of year end.
3.3.3 In addition to payments for Products as provided for above, Diomed
shall pay the LP **CONFIDENTIAL TREATMENT REQUESTED** for each
optical fiber manufactured and sold by Diomed utilizing the unique
fiber design components of the Fiber Patent (a "Qualified Fiber").
Where a Qualified Fiber is included in a disposable Kit which
contains other
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components the amount paid shall be **CONFIDENTIAL TREATMENT REQUESTED**
for each kit which includes a Qualified Fiber.
3.4 Certain Definitions. For purposes of this Agreement, "Product" or
"Products" means the Diomed D15 plus and D30 plus lasers (and equivalents)
that are sold with an EVLT application box and excludes all fibers,
disposables and related services.
3.5 Initial Option Grant. In consideration of the undertakings by the Doctor
and the LP herein, Diomed hereby grants to the LP an option (the "Initial
Option") to purchase 30,000 shares of Diomed Common Stock at a purchase
price of $2.25 per share under the 2001 Stock Option Plan adopted by
Diomed (the "Plan"). The Initial Option shall be fully vested on issuance
and exercisable for a period of two (2) years from the date of grant. The
Initial Option will be non transferable and may only be exercised on the
condition that the Doctor executes the Stockholder Agreement attached
herewith as Exhibit C (as it may be amended from time to time). The
Initial Option (and shares issued on exercise thereof) shall also be
subject to all provisions of the Certificate of Incorporation and Bylaws
of Diomed, or successor entity, as from time to time revised or amended or
terms of any conversion of the options in connection with a merger or
acquisition with another company so long as the holder is treated on a
xxxx xxxxx basis.
3.6 Product Options. For each Product sold by Diomed beginning on the
Effective Date and ending November 15, 2005, Diomed will grant to the LP
under the Plan an option (a "Product Option") to purchase five (5) shares
of Common Stock of Diomed up to an aggregate maximum of 45,000 shares
(which number is inclusive of shares subject to options granted under
Section 3.5). The Product Options shall be granted as of the end of each
calendar quarter in which Product sales were sold (subject to adjustment
for returns and uncollected accounts) and shall be fully vested on grant.
The Product Options issued hereunder shall be subject to the same terms as
the Initial Options issued under Section 3.5 except that the exercise
price of each quarterly grant shall be based on fair market value of
Diomed common stock at the time of grant as determined at the sole
discretion of the Board of Director and consistent with other Employee
options (if any) granted during the quarter.
3.7 Quarterly Report. Diomed shall provide the Doctor with a report within
thirty (35) days of the end of each calendar quarter specifying the number
of Products sold for EVLT during the immediately prior calendar quarter
(and specifying sales in North America and sales in the rest of the
world), the number of stock options earned as a result of such sales, the
exercise price of the stock options, and the aggregate number of stock
options awarded the LP to the date of the report. For purposes of the
Product Options, the number of Products sold in any given quarter shall
equal the number of Products for which Diomed is obligated to make a
payment under Section 3.3.
3.8 Annual Verification. Within ninety (90) days of the close of each
calendar year, Diomed will provide the Doctor with an annual
report of the number of Products sold in the immediately preceding
calendar year, verified by Diomed's auditors. The Doctor and/or
the LP shall have the right to audit Diomed's books and records
related to the transactions contemplated under this Agreement. In
addition to any other sums that may be owing to the Doctor and/or
the LP as a result of such audit, Diomed shall be responsible for
the cost of such audit in the event a discrepancy of five percent
(5%) of more is documented by the Doctor's and/or LP's auditor.
4 Investment Representations
4.1 Option Grants Subject to Plan. The Doctor and the LP each
acknowledges that the options granted and to be granted to the LP
hereunder are being granted under and are subject to the Plan. All
references to numbers of shares or price per share under this
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Agreement shall be subject to adjustment in a number of circumstances such
as merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split, combination of shares,
exchange of shares, change in corporate structure or the like, as provided
in the Plan.
4.2 Investment Intent. The Doctor and the LP each agrees that the LP is
acquiring and will acquire the Options and the shares of Common Stock
issuable thereunder for its own account and not with a view to, or for
sale in connection with, any "distribution" thereof within the meaning of
the Securities Act of 1933, as amended (the "Securities Act").
4.3 Adequate Investigation. The Doctor and the LP each acknowledges that
Diomed has granted him and it the opportunity to make a thorough
investigation of the business affairs of Diomed and he and it has availed
himself and itself of such opportunity, either directly or through his or
its authorized representatives. In particular, Diomed has made available
to the Doctor and the LP and their respective representative, access to
Diomed officers and employees for the purpose of discussing and responding
to questions concerning Diomed and its business and Diomed has furnished
to the Doctor and the LP all agreements, financial statements and other
documents pertaining to Diomed and its business requested by him or it.
The Doctor and the LP each acknowledges that he and it has made an
independent investigation of Diomed and an independent evaluation of the
risks and merits of acquiring the Options and entering into this Agreement
and has received all the information that he or it has requested in
connection with deciding whether to accept the Options.
4.4 Investment Sophistication. The Doctor and the LP each acknowledges that he
and it (a) is knowledgeable and experienced in business matters, (b) is
capable of independently evaluating the risks and merits of accepting and
exercising the Options granted hereunder, (c) has independently determined
that the investment is a suitable investment for the LP, and (d) has
sufficient financial resources to bear the loss of the LP's investment in
the Options.
4.5 Restricted Securities. The Doctor and the LP each acknowledges and
understands that, because neither the Options nor the Common Stock to be
received upon exercise of the Options will be registered under the
Securities Act or applicable state securities laws (even after Diomed
becomes a public company), the LP will not be able to dispose of the
Common Stock received upon exercise of the Options unless the sale of the
shares of Common Stock received by it is registered or exemptions from
such registration are available. The Doctor and the LP each further
acknowledges and understands that neither he nor it has any right to
require Diomed to register the Common Stock the LP receives upon exercise
of any Options granted hereunder under the Securities Act or applicable
state securities laws and that the Company may, as a condition to the
transfer of Common Stock received upon exercise of the Options, require an
opinion of counsel, in form and substance reasonably satisfactory to
Diomed to the effect that the proposed transfer does not result in
violation of the Securities Act or applicable state securities laws,
unless such transfer is covered by an effective registration statement
under the Securities Act and all applicable state securities laws. In
furtherance of the above, each certificate representing shares of Common
Stock received upon exercise of Options will bear a legend to that effect
as well as any legend required by the Stockholder Agreement signed by the
LP.
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4.6 Domicile. The legal domicile of each of the Doctor and the LP is Texas.
4.7 Accredited Investor. The LP and the Doctor are an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended, and was not formed for the purpose of
acquiring the Options.
5 Term and Termination
5.1 Term. The Agreement shall be effective as of August 29, 2001 (the
"Effective Date") and, unless earlier terminated as provided herein, shall
automatically terminate on November 16, 2010 (the period from the
Effective Date until expiration or earlier termination of this Agreement
being referred to herein as the "Term").
5.2 Termination by Diomed. This Agreement may be terminated in its entirety by
Diomed effective upon the giving of notice of termination to the Doctor no
later than January 31 following the end of any calendar year beginning
with calendar year 2001 in which at least 50 Products are not sold
worldwide for EVLT.
5.3 Termination by the Doctor and the LP. This Agreement may be terminated by
the Doctor (on behalf of himself and the LP) effective upon the giving of
notice of termination to Diomed no later than January 31 following the end
of any calendar year beginning with calendar year 2001 in which at least
**CONFIDENTIAL TREATMENT REQUESTED** Products are not sold worldwide for
EVLT. Also, this Agreement may be terminated by the Doctor (on behalf of
himself and the LP) at any time after the **CONFIDENTIAL TREATMENT
REQUESTED** anniversary of the Effective Date effective upon the giving of
six (6) months prior written notice of termination.
5.4 Termination for Breach. Diomed, on the one hand, and the Doctor (on behalf
of himself and the LP), on the other, may terminate this Agreement if the
other defaults in the performance of any agreement, condition or covenant
in this Agreement and this default is not remedied within sixty (60) days
after written demand to remedy the same has been given to the other party.
For purposes of this Section 5.4, failure by the Doctor to perform his
agreed upon duties as set forth in Exhibit B shall constitute a breach of
this Agreement. Upon termination for default, the non-defaulting party
shall be free to pursue any and all remedies available to him or it. No
remedy is intended to be exclusive and each remedy shall be cumulative.
5.5 Termination upon Death or Discontinuation of Medical Practice of the
Doctor. This Agreement shall terminate upon the death of the Doctor. Also,
Diomed, on the one hand, and the Doctor (on behalf of himself and the LP),
on the other, may terminate this Agreement if the practice of medicine
ceases to be the Doctor's primary professional activity.
5.6 Survival. Notwithstanding termination of this Agreement, Diomed's
obligations under Sections 3.2, 3.3 and 3.6 shall survive with respect to
Product sales for EVLT prior to the date of termination, and the
obligations of the Doctor and the LP under Section 1.2 shall survive until
November 16, 2010. Article IV, Section 6.2 and Sections 7.7 and 7.8 shall
survive termination of this Agreement.
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6 Representations, Warrants and Indemnification
6.1 Authority and Enforcement. Each party to this Agreement warrants that
he or it has full right, power and authority to enter into this
Agreement and to perform the covenants and agreements contemplated
hereby, that this Agreement has been duly executed and delivered by
him or it and that the Agreement is enforceable against him or it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other creditors' rights generally and the
availability of equitable remedies, including specific performance.
6.2 Limitation on Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN AND
IN ANY WARRANTY DELIVERED WITH THE PRODUCT, DIOMED GIVES NO
WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCT INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL DIOMED ON THE ONE HAND OR THE
DOCTOR AND/OR THE LP ON THE OTHER BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES THAT THE OTHER MAY
SUFFER DIRECTLY OR INDIRECTLY AS A RESULT OF THE SALE OF THE PRODUCT
FOR EVLT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE DOCTOR AND/OR
THE LP FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE AGGREGATE
AMOUNT OF CONSIDERATION RECEIVED BY THE DOCTOR AND/OR THE LP (WHETHER
IN CASH, OR EXERCISED OPTIONS OR SHARES OF CAPITAL STOCK) UNDER THIS
AGREEMENT
7 Miscellaneous
7.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and to their respective successors, personal
representatives, executors or assigns. Neither this Agreement nor any
part of it shall be assignable by the Doctor or the LP to any third
party. Diomed may assign this Agreement to a parent, subsidiary or
other affiliate and to any party that acquires the EVLT business from
Diomed, provided that such assignee assumes the obligations of Diomed
hereunder in a written instrument delivered to the Doctor and the LP.
7.2 Notices. Unless otherwise agreed in writing, all notices, requests
and other communications pursuant to this Agreement shall be in
writing and addressed as follows:
If to Diomed:
Diomed, Inc.
0 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
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If to the Doctor or the LP:
Endovenous Associates, L.P.
0000 X. Xxxxx Xxxx.
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, M.D.
Any notice or other communication under this Agreement shall be
deemed to be sufficiently given if made in writing addressed as
above and delivered (a) by hand or by recognized overnight
delivery service, (b) by first class registered or certified mail,
return receipt requested, or (c) by facsimile or electronic mail
(with a confirmation copy dispatched as provided in subsection (a)
or (b) above). Notice shall be deemed to have been given upon
delivery if delivered under subsection (a) or (c) and at the
expiration of five (5) business days after the date on which a
notice is posted under subsection (b).
7.3 Entire Agreement. This Agreement, together with the Exhibits attached
hereto, represents the entire agreement between the parties with respect
to the subject matter hereof and supersedes any other agreement or
understanding, written or oral, that the parties heretofore may have had
with respect thereto, including, without limitation, that certain Term
Sheet dated as of December 18, 2000.
7.4 Amendment. No amendment or other variation of this Agreement will be
binding unless duly executed by an instrument in writing signed by the
parties hereto.
7.5 No Waiver. Failure by any party to enforce the performance of any of the
provisions of this Agreement against another party shall neither
constitute a waiver by it or him of its or his rights hereunder nor affect
the validity of this Agreement in any way. Any waiver by a party hereto of
a breach of this Agreement on the part of another party shall not
constitute a precedent as to any subsequent breach on the part of such
other party.
7.6 Invalidity. In the event that any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
7.7 Applicable Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without application of Massachusetts law
with respect to conflicts of law.
7.8 Dispute Resolution. Any dispute that may arise between the parties in
connection with or arising out of this Agreement must first be addressed
by the President of Diomed and the Doctor who shall make a good faith
effort to resolve the dispute. If, within thirty (30) days of written
notice that a dispute exists there has been no resolution of the dispute,
then such dispute shall be resolved exclusively by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in force. The arbitration shall take place in
Boston, Massachusetts, or New York, New York, and shall be final and
binding on the parties, shall not be subject to any appeal and shall
address the question of costs of arbitration and the matters relating
thereto. Judgment upon the
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award rendered may be entered in any court having jurisdiction, or
application may be made to such court for a judicial recognition of
the award or any order of enforcement thereof, as the case may be.
7.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which shall be considered one and the same instrument.
7.10 Headings. The headings in this Agreement are inserted for convenience
only and shall not be used to interpret this Agreement or for any
other purpose.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DIOMED, INC.
/s/ XXXXXX X. XXXXXX
-------------------------
XX. XXXXXX X. XXXXXX
XXXXX XXXXX ENDOVENOUS ASSOCIATES, L.P.
Title: CEO
By:_________________ Print Name:
Title: Manager
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EXHIBIT A
CERTIFICATION OF COMPLETION OF EVLT TRAINING
EVLT Training Certificate
This document certifies that Dr.
Street:
City:
ZIP, State:
Phone:
e-mail:
has successfully completed a one day training session on performing an EVLT
procedure.
The Training was performed by Dr. at the following location:
Street:
City:
ZIP, State:
Phone:
e-mail:
We thank you for your participation
This certificate merely certifies that the above named physician has completed
the training session described above, and does not certify that such physician
possesses any particular level of skill, competency or experience with respect
to an EVLT procedure.
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