[LETTERHEAD OF DIOMED, INC.]
[LOGO] DIOMED
Exhibit 10.10
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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"), Dr. Xxxxxx Min of New York, New
York (the "Doctor"), and Endovenous Laser Associates, L.L.C., a New York limited
liability company with a principal office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "LLC").
RECITALS
WHEREAS, Diomed is in the business of developing, marketing,
manufacturing and selling laser systems for medical applications;
WHEREAS, the Doctor is a named co-inventor and co-owner under a process
patent, application number 09/374,280, entitled "Endovascular Laser Device and
Treatment of Varicose Veins" (the "Process Patent Rights");
WHEREAS, the Doctor is the named inventor under a patent application
covering design and function of optical fibers, filed by Diomed, 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 therein are referred to collectively as the "Fiber Patent").
WHEREAS: the Doctor is willing to grant to Diomed a nonexclusive
license to use of the Process Patent Rights and to assign to Diomed all rights
he has or may have in 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 LLC 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 LLC, 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 LLC, to
help maximize Diomed's sales worldwide of lasers for EVLT and the Doctor and the
LLC, 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;
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NOW, THEREFORE, the parties hereby agree as follows:
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 LLC
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).
1.2 Exclusive Promotion. The Doctor and the LLC 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 Patent Rights.
1.3.1 The Doctor and the LLC warrant and covenant that
they have not and will not license the Process
Patent Rights to any third party during the Term
and that they have not licensed the Fiber Patent to
any third party. The Doctor and the LLC further
covenant that they shall not become a party to any
agreement or arrangement (written or oral) with any
other co-inventor of the Process Patent Rights or
any third party that would adversely affect the
rights of Diomed under the license granted
hereunder.
1.3.2 The Doctor hereby grants to Diomed, to the full
extent that he has authority to do so, a
royalty-free, perpetual, worldwide, non-exclusive
license to use and to sublicense to others the
right to use the Process Patent Rights if and when
such patent issues._Notwithstanding the foregoing,
the rights and license granted by the Doctor
hereunder shall terminate in the event this
Agreement is terminated due to Diomed's breach.
1.3.2 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
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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.
1.3.4 The Doctor and LLC hereby acknowledge that "EVLT"
is a trademark of Diomed, and that neither the
Doctor nor the LLC has any rights therein. The
Doctor and the LLC 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 LLC, 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 LLC,
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.
2.3 Confidentiality. The Doctor and the LLC each acknowledge
that information about Product sales to be provided by
Diomed to the Doctor and the LLC hereunder and any other
information provided to the Doctor or the LLC and designated
as confidential by Diomed at the time of disclosure
constitute confidential and proprietary information of
Diomed and the Doctor and the LLC 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 LLC
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 LLC 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
LLC to hold patent rights and provide services under this
Agreement, all obligations of the Doctor and the LLC under
this Agreement shall be joint and several and such
obligations may be fully enforced by Diomed against either
the Doctor or the LLC 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 LLC for damages arising
out of this Agreement exceed the aggregate amount of
consideration received by the Doctor and/or the LLC
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(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 LLC in the event the Doctor
breaches his obligations under Sections 1.2, 1.3.1, 1.3.3,
1.3.4 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 LLC 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 LLC **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 will pay the LLC
**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 LLC **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 than **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**
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- **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 LLC 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 LLC **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 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 LLC herein, Diomed hereby grants to
the LLC 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 LLC under the Plan an option (a "Product
Option") to purchase twenty five (25) shares of Common Stock
of Diomed up to an aggregate maximum of 180,000 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
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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 LLC 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 LLC 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 LLC 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
LLC's auditor.
4 Investment Representations
4.1 Option Grants Subject to Plan. The Doctor and the LLC each
acknowledges that the options granted and to be granted to
the LLC hereunder are being granted under and are subject to
the Plan. All references to numbers of shares or price per
share under this 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 LLC each agrees that
the LLC 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 LLC 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 LLC 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 LLC all agreements,
financial statements and other documents pertaining to
Diomed and its business requested by him or it. The Doctor
and the LLC 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.
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4.4 Investment Sophistication. The Doctor and the LLC 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 LLC, and (d) has sufficient financial
resources to bear the loss of the LLC's investment in the
Options.
4.5 Restricted Securities. The Doctor and the LLC 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 LLC 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 LLC each further acknowledges
and understands that neither he nor it has any right to
require Diomed to register the Common Stock the LLC 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 LLC.
4.6 Domicile. The legal domicile of each of the Doctor and the
LLC is New York.
4.7 Accredited Investor. The LLC 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 LLC. This Agreement may be
terminated by the Doctor (on behalf of himself and the LLC)
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
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and the LLC) 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 LLC), 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 LLC), on the other,
may terminate this Agreement if the practice of medicine
ceases to be the Doctor's primary professional activity.
5.6 Survival of Patent Rights on Termination. Unless this
Agreement is terminated due to Diomed's breach, the parties
agree that Diomed's rights under Section 1.3 (and the
license and assignment of rights contained therein) shall
survive such termination without limitation. With regards to
the Process Patent, such retained rights shall be non
exclusive.
5.7 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 LLC under Section 1.2 shall survive until November 16,
2010. Article IV, Sections 6.2 and 6.3 and Sections 7.7 and
7.8 shall survive termination of this Agreement.
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 Patent Rights. The Doctor and the LLC represent and warrant
that (i) the Doctor is a named and actual co-inventor of the
Process Patent Rights, (ii) the Doctor has provided Diomed with
an accurate and complete copy of all written documents relating
to the Process Patent Rights that are in his possession or
control and a written summary of all other agreements and
arrangements (whether written or oral) relating to the Process
Patent Rights of which he has knowledge, and (iii) neither the
Doctor nor the LLC is a party to any agreement or arrangement
(whether written or oral) with any other co-inventor of the
Process Patent Rights or any third party that would prohibit
the Doctor from granting the license to the Process Patent
Rights granted hereunder or require the
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approval or consent of any other co-inventor or any third
party to the grant of such license. The Doctor and the LLC
further represent and warrant that the Doctor is the
inventor of the Fiber Patent Rights and that he has the
right to grant the rights to the Fiber Patent hereunder. The
Doctor and the LLC agree to indemnify and hold Diomed
harmless from any liability, loss or cost (including
reasonable attorney's fees) arising out of or resulting from
any breach of any representation or warranty in this Section
6.2.
6.3 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 LLC 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 LLC FOR DAMAGES
ARISING OUT OF THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF
CONSIDERATION RECEIVED BY THE DOCTOR AND/OR THE LLC (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 LLC 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 LLC.
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
If to the Doctor or the LLC:
Endovenous Laser Associates, L.L.C.
000 Xxxx 00xx Xxxxxx Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Min, M.D.
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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 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.
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[LOGO] DIOMED
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. ENDOVENOUS LASER ASSOCIATES, L.L.C.
By: By:
/s/ Xxxxx Xxxxx /s/ Xxxxxx Min
------------------------------------- -------------------------------------
XXXXX XXXXX: DR. XXXXXX MIN
Title: CEO Title: MANAGER
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.
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[LOGO] DIOMED
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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[LOGO] DIOMED
EXHIBIT B
DUTIES OF DR. MIN
To train between 8 and 12 doctors per calendar year beginning with 2001,
subject to bona fide pre-existing commitments.
If requested by Diomed, to speak and lecture on the use of the Product for EVLT
at a minimum of two major medical meetings each year, at least one of which
shall be in an international forum.
To be available to answer questions from Diomed personnel related to EVLT for
up to five (5) hours per month during normal working hours as agreed upon by
the parties and further agrees to devote up to three (3) hours per month to
providing e-mail support with respect to EVLT as requested by Diomed.
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