CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY AGREEMENT
In consideration of Laurentian Bank of Canada, a Canadian Chartered Bank having
a branch at 000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx X0X 0X0, (the
"Lender") heretofore or hereafter (1) extending or agreeing to extend any credit
or other financial accommodation to or relying on any guaranty, endorsement or
other assurance of payment of Dumex Medical Canada Inc., a corporation residing
at, or organized under the law of Canada and having its chief executive office
at 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0 (the "Borrower") or (2) agreeing
to any direct or indirect extension, renewal, refinancing or other modification
or replacement of or waiving or forbearing from exercising any right or remedy
relating to any obligation heretofore or hereafter arising or accruing as a
result of any such credit or other financial accommodation, and for other
valuable consideration, the receipt of which is acknowledged, Derma Sciences,
Inc., a corporation residing at, or organized under the law of the State of
Pennsylvania and having its chief executive office at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, XX 00000, (the "Guarantor") agrees with the Lender as follows:
1. Definitions
In this Agreement:
(a) Claim: "Claim" means any claim, however asserted and whether now
existing or hereafter arising or accruing, for (i) the recovery of any
money or Collateral heretofore or hereafter received, applied or
retained by the Lender in payment or satisfaction of any of the
Obligations (including, but not limited to, any such claim involving
any allegation that any money constituted trust funds or that the
receipt, application or retention of any money or Collateral or the
grant, perfection or other creation or protection of any security
interest in or other lien on any Collateral constituted a preference
or fraudulent conveyance or transfer) or (ii) whether or not correctly
or legally imposed, any tax, assessment, fee, charge, interest, fine
or penalty imposed by any government, political subdivision or other
taxing authority, or any deduction or withholding for any such tax,
assessment, fee, charge, interest, fine or penalty required, as a
result of the execution, delivery to the Lender or performance by the
Guarantor of, any filing or registration of or with respect to, or any
payment made pursuant to, this Agreement or otherwise in connection
with this Agreement other than any income or franchise tax imposed on
the Lender by any government, political subdivision or other taxing
authority or any interest, fine or penalty relating to any such income
or franchise tax.
(b) Collateral: "Collateral" means, other than any guaranty pursuant to
Section 2 of this Agreement, (i) any collateral, subordination,
guaranty, endorsement or other security or assurance of payment,
whether now existing or hereafter arising or accruing, that now or
hereafter secures the payment of or is otherwise applicable to any of
the Obligations or any obligation of the Guarantor pursuant to this
Agreement or (ii) any obligation of the Lender, whether pursuant to
any deposit account or certificate of deposit or otherwise, that is
now or hereafter available for setoff against any of the Obligations
or any obligation of the Guarantor pursuant to this Agreement.
(c) Obligations: The "Obligations" means collectively all obligations to
the Lender in any capacity for (i) the payment of any money, however
evidenced, regardless of kind, class or form, whether for the payment
of any principal, interest, fee, charge, cost or expense or otherwise,
incurred for any business, commercial or agricultural purpose or
otherwise, now existing or hereafter arising or accruing, created
directly or by any assignment or other transfer, direct or indirect,
absolute or contingent (whether pursuant to any guaranty, endorsement
or other assurance of payment or otherwise), similar or dissimilar or
related or unrelated and whether or not arising or accrued subsequent
to any commencement of or made, proved, voted or allowed as a claim in
any case or other proceeding pursuant to any bankruptcy, insolvency or
similar statute, or (ii) the performance of any obligation other than
an obligation to pay any money that have been heretofore or are
hereafter incurred by, in any capacity and whether alone or otherwise,
the Borrower or, if the Borrower is not an individual, any direct or
indirect successor of the Borrower or any direct or indirect
transferee of all or substantially all of the assets of the Borrower.
(d) Other Obligor: "Other Obligor" means, other than the Guarantor and the
Borrower, any Person who or that is now or hereafter liable, whether
directly or indirectly or absolutely or contingently, for the payment
of any of the Obligations.
(e) Person: "Person" means (i) any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated
association, government, political subdivision or other taxing
authority, (ii) any court, agency or other governmental body or (iii)
any other entity, body, organization or group.
2. Guaranty
The Guarantor guarantees, without any setoff or other deduction, in lawful
money of Canada and in immediately available funds, the payment when due,
whether by acceleration or lapse of time or otherwise, of the Obligations
without any limitation as to amount. Such guaranty is a continuing, absolute and
unconditional guaranty and a guaranty of payment rather than collection.
3. Reinstatement of Obligations
Each portion of the Obligations heretofore or hereafter paid or satisfied
by any money or Collateral heretofore or hereafter received, applied or retained
by the Lender and later recovered from the Lender as a result of any Claim shall
be reinstated as part of the Obligations for purposes of this Agreement as of
the date it originally arose or accrued.
4. Indemnification
The Guarantor shall indemnify the Lender on demand, without
any limitation as to amount, against each liability, cost and expense
(including, but not limited to, if the Lender retains counsel for advice,
litigation or any other purpose, reasonable attorneys' fees and disbursements)
heretofore or hereafter imposed on, incurred by or asserted against the Lender
as a result of any Claim.
5. Expenses
The Guarantor shall pay to the Lender on demand each
reasonable out-of-pocket cost and expense (including, but not limited to, if the
Lender retains counsel for advice, litigation or any other purpose, reasonable
attorneys' fees and disbursements) hereafter incurred by the Lender in
endeavouring to enforce any obligation of the Guarantor pursuant to this
Agreement or preserve or exercise any right or remedy of the Lender pursuant to
this Agreement or arising or accruing as a result of this Agreement.
6. Furnishing of Information
Promptly upon the request of the Lender, the Guarantor shall
furnish to the Lender all information reasonably requested by the Lender and
relating to the Guarantor or the business, operations, assets, affairs or
condition (financial or other) of the Guarantor (including, but not limited to,
financial statements prepared in a form satisfactory to the Lender and, if
reasonably requested by the Lender, audited, reviewed or compiled by an
independent certified public accountant satisfactory to the Lender).
7. Postponement of Right of Subrogation and Similar Rights
Until (a) the final and indefeasible payment in full of (i)
the Obligations, (ii) each liability, cost and expense that the Guarantor is
obligated to pay pursuant to Section 4 of this Agreement and (iii) each cost and
expense that the Guarantor is obligated to pay pursuant to Section 5 of this
Agreement and (b) the expiration or other termination of each commitment and
other agreement of the Lender to extend any credit or other financial
accommodation to the Borrower, the Guarantor shall not exercise, commence or
prosecute any action or other legal proceeding relating to or otherwise enforce,
or attempt or agree or otherwise incur any obligation to exercise, commence or
prosecute any action or other legal proceeding relating to or otherwise enforce,
whether now existing or hereafter arising or accruing, any right of subrogation,
indemnification, reimbursement or contribution, or any similar right, against
the Borrower or any Other Obligor in connection with this Agreement or any of
the Obligations (including, but not limited to, pursuant to any agreement,
instrument or other document providing any Collateral).
8. Termination
This Agreement shall remain in full force and effect until and
shall terminate only upon (a) the actual receipt by an officer of the Lender at
the chief executive office of the Lender of a written notice of (i) the
termination of this Agreement by the Guarantor or (ii) the dissolution or
cessation of existence of the Guarantor, (b) the expiration of a reasonable
period of time for the Lender to act upon such written notice and (c) the final
and indefeasible payment in full of (i) each portion of the Obligations (A)
arising or accrued before such receipt of such written notice and the expiration
of such period of time, (B) thereafter arising or accruing as a result of any
credit or other financial accommodation theretofore committed or otherwise
agreed to by the Lender or (C) thereafter arising or accruing as a result of any
of the Obligations described in clause (c)(i)(A) or (B) of this sentence
(including, but not limited to, (I) all interest, fees, charges, costs and
expenses thereafter arising or accruing with respect to any of the Obligations
described in such clause (c)(i)(A) or (B) and (II) all of the Obligations
thereafter arising or accruing as a result of any direct or indirect extension,
renewal, refinancing or other modification or replacement of any of the
Obligations described in such clause (c)(i)(A) or (B)), (ii) each liability,
cost and expense that the Guarantor is obligated to pay pursuant to Section 4 of
this Agreement with respect to any Claim theretofore or thereafter arising with
respect to any of the Obligations described in clause (c)(i) of this sentence
and (iii) each cost and expense that the Guarantor is obligated to pay pursuant
to Section 5 of this Agreement, whether theretofore or thereafter arising or
accruing.
9. Representations and Warranties
The Guarantor represents and warrants to the Lender that (a)
the execution, delivery to the Lender and performance of this Agreement by the
Guarantor (i) do not and will not violate applicable law, any judgment or order
of any court, agency or other governmental body by which the Guarantor is bound
or, if the Guarantor is not an individual, any certificate or articles of
incorporation or organization, by-laws, operating or partnership agreement or
other charter, organizational or other governing document of the Guarantor or
any resolution or other action of record of any shareholders, members, directors
or managers of the Guarantor, (ii) do not and will not violate or constitute any
default under any material agreement, instrument or other document by which the
Guarantor is bound, (iii) if the Guarantor is not an individual, are and will be
in furtherance of the purposes and within the power and authority of the
Guarantor and (iv) do not and will not require any authorization of, notice to
or other act by or relating to any Person (including, but not limited to, if the
Guarantor is not an individual, any shareholder, member, director or manager of
the Guarantor) that has not been duly obtained, given or done and is not in full
force and effect and (b) this Agreement is enforceable in accordance with its
terms against the Guarantor subject to only to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies, and in particular, may not be available where damages are
considered an adequate remedy; and
(ii) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws generally
affecting enforceability of creditor's rights.
10. Certain Consents and Waivers
(a) Consents: Except to the extent expressly provided in this Agreement,
this Agreement shall not be modified or terminated, no obligation of
the Guarantor pursuant to this Agreement and no right or remedy of the
Lender pursuant to this Agreement or arising or accruing as a result
of this Agreement shall be impaired or otherwise adversely affected,
and no such right or remedy shall be waived, by any act, omission or
other thing, whether heretofore occurred or hereafter occurring. The
Guarantor knowingly, voluntarily, intentionally and irrevocably
consents, without any notice, to each act, omission and other thing,
whether heretofore occurred or hereafter occurring, that would or
might, but for such consent, modify or terminate this Agreement,
impair or otherwise adversely affect any such obligation, right or
remedy or operate as a waiver of any such right or remedy. Without
limiting the generality of the preceding two sentences, this Agreement
shall not be modified or terminated, no such obligation, right or
remedy shall be impaired or otherwise adversely affected by, no such
right or remedy shall be waived by, and such consent shall apply to,
whether heretofore occurred or hereafter occurring, (i) any direct or
indirect extension, renewal, refinancing or other modification or
replacement of, or any assignment or other transfer, compromise,
cancellation, discharge, invalidity, impairment, unenforceability or
change in any term or condition of, defence with respect to or grant
of any participation in, any of the Obligations or any other
obligation of the Guarantor, the Borrower or any Other Obligor or
other Person, (ii) any acceptance of any Other Obligor, (iii) any
taking, increase or decrease in value, impairment or release of,
collection or sale, lease or other disposition of or other realization
upon or failure or delaying to call for, take any property as, hold,
preserve, protect, insure or collect, sell, lease or otherwise dispose
of or otherwise realize upon any Collateral, (iv) any failure or
delaying to perfect, keep perfected or maintain the priority of any
security interest in or other lien on any Collateral, (v) any exercise
or waiver of, failure or delaying to exercise, forbearance from
exercising or failure to give any notice prior to exercising any right
or remedy of the Lender or any other Person relating to any of the
Obligations or any Collateral or against the Guarantor, the Borrower
or any Other Obligor or other Person, (vi) any case or other
proceeding pursuant to any bankruptcy, insolvency or similar statute
with respect to the Guarantor, the Borrower or any Other Obligor or
other Person, (vii) any failure of the Lender or any other Person to
make, prove or vote any claim relating to any of the Obligations or
any Collateral, or any failure of any such claim to be allowed, in any
case or other proceeding pursuant to any bankruptcy, insolvency or
similar statute, (viii) the Obligations being at any time or from time
to time paid in full or reduced and then increased or exceeding any
amount, (ix) any refusal or other failure of the Lender or any other
Person to grant any or any additional credit or other financial
accommodation to the Guarantor, the Borrower or any Other Obligor or
other Person or provide to the Guarantor any or complete and accurate
information relating to the Borrower or any Other Obligor or other
Person or the business, operations, assets, affairs or condition
(financial or other) of the Borrower or any Other Obligor or other
Person, (x) any notice to the Lender or any other Person from the
Guarantor, the Borrower or any Other Obligor or other Person not to
grant any or any additional credit or other financial accommodation to
the Borrower or to take or not to take any other action, (xi) the
acceptance by the Lender or any other Person of any writing intended
by the Guarantor, the Borrower or any Other Obligor or other Person
but not by the Lender to create an accord and satisfaction with
respect to any of the Obligations or any other obligation of the
Guarantor, the Borrower or any Other Obligor or other Person, (xii)
the manner or order of any collection or sale, lease or other
disposition of or other realization upon any Collateral, (xiii) the
manner or order of application of any money applied in payment of any
of the Obligations, (xiv) any change in the ownership, membership,
location, business, name, identity or structure of the Guarantor, the
Borrower or any Other Obligor or other Person or (xv) the execution
and delivery to the Lender by the Guarantor, the Borrower or any Other
Obligor or other Person of any agreement, instrument or other document
providing any Collateral.
(b) Waivers: The Guarantor knowingly, voluntarily, intentionally and
irrevocably waives, without any notice, each act and other thing upon
which, but for such waiver, any obligation of the Guarantor pursuant
to this Agreement or any right or remedy of the Lender pursuant to
this Agreement or arising or accruing as a result of this Agreement
would or might be conditioned. Without limiting the generality of the
preceding sentence, no such obligation, right or remedy shall be
conditioned upon, and such waiver shall apply to, (i) the acceptance
of this Agreement by the Lender, (ii) any demand upon or presentment
or protest to the Guarantor, the Borrower or any Other Obligor or
other Person, (iii) any exercise of any right or remedy of the Lender
or any other Person relating to any of the Obligations or any
Collateral or against the Guarantor, the Borrower or any Other Obligor
or other Person or (iv) any notice to the Guarantor, the Borrower or
any Other Obligor or other Person of the acceptance of this Agreement
by the Lender, any incurring or non-payment of any of the Obligations,
any occurrence or existence of any event or condition of default
relating to any of the Obligations or any Collateral, any decrease in
the value of any Collateral, any exercise of any right or remedy of
the Lender or any other Person relating to any of the Obligations or
any Collateral or against the Guarantor, the Borrower or any Other
Obligor or other Person, any action taken or not taken by the Lender
or any other Person or any other matter.
11. Notices and Other Communications
Each notice and other communication relating to this Agreement (i) may be
given in writing or by facsimile, (ii) if given in writing, may be directed to
the last address shown in the records of the sender relating to this Agreement,
(iii) if sent by mail or overnight courier service, shall be deemed to have been
given when deposited in the mail, first-class or certified postage prepaid, or
accepted by any post office or overnight courier service for delivery and to
have been received by upon the earlier of (A) the actual receipt thereof or (B)
three days after being so deposited or accepted and (iv) if given by facsimile,
may be directed to the last telephone number for receipt of facsimiles shown in
the records of the sender relating to this Agreement.
12. Miscellaneous
(a) Limitation on Guaranty: The payment of the Obligations shall not be
guaranteed by the Guarantor pursuant to Section 2 of this Agreement to
the extent of any amount in excess of the maximum amount that can be
so guaranteed without rendering such guaranty unenforceable under
applicable law as a fraudulent conveyance or transfer.
(b) Effect on Other Agreements, Instruments and Other Documents: The
execution, delivery to the Lender and performance of this Agreement by
the Guarantor shall not modify or terminate any other agreement,
instrument or other document (including, but not limited to, any
agreement, instrument or other document providing any Collateral) by
which the Guarantor, the Borrower or any Other Obligor or other Person
is bound or impair or otherwise adversely affect any obligation of the
Guarantor, the Borrower or any Other Obligor or other Person pursuant
to any such other agreement, instrument or other document.
(c) Right of Setoff: Upon and at any time and from time to time after any
default in the payment when due, whether by acceleration or lapse of
time or otherwise, of any of the Obligations or any occurrence or
existence of any other event or condition of default relating to any
of the Obligations, the Lender shall have the right to place an
administrative hold on, and set off against each obligation of the
Guarantor pursuant to this Agreement, each obligation of the Lender
to, in any capacity and whether alone or otherwise, the Guarantor,
whether now existing or hereafter arising or accruing, whether
pursuant to any deposit account or certificate of deposit or
otherwise. Such setoff shall become effective at the time the Lender
opts therefor even though evidence thereof is not entered in the
records of the Lender until later.
(d) Assignment or Grant of Participation: In conjunction with any
assignment or other transfer of or grant of any participation in any
of the Obligations by the Lender, the Lender shall have the right to
assign or otherwise transfer or grant any participation in this
Agreement, any obligation of the Guarantor pursuant to this Agreement
or any right or remedy of the Lender pursuant to this Agreement or
arising or accruing as a result of this Agreement.
(e) Canadian Currency: Any obligation of the Guarantor to make any payment
pursuant to this Agreement in lawful currency of Canada shall,
notwithstanding any judgment therefor in lawful currency of the United
States, be discharged by a payment to the Lender on account of such
judgment in lawful currency of the United States only to the extent
that on the first business day of the Lender following the date of
receipt by the Lender of such payment the Lender is able, in
accordance with normal banking procedures, purchase lawful currency of
Canada with the amount of lawful currency of the United States so
paid. If the amount of lawful currency of Canada that may be so
purchased is less than the amount due in such currency, the Guarantor
shall, as an obligation separate from and independent of any other
obligation of the Guarantor pursuant to this Agreement, indemnify the
Lender on demand against such deficiency and remit to the Lender on
demand the amount of such currency equal to the amount of such
deficiency.
(f) Deduction or Withholding: Any payment pursuant to this Agreement made
by the Guarantor shall be made without any setoff or counterclaim and
free and clear of and without any deduction or withholding for any
tax, assessment, fee, charge, fine or penalty imposed by any
government, political subdivision or other taxing authority; provided,
however, that, if such deduction or withholding is required by
applicable law, (i) such payment shall include such additional amount
as is necessary to result in the net amount of such payment after such
deduction or withholding not being less than the amount of such
payment without such deduction or withholding, (ii) the Guarantor
shall make such deduction or withholding and (iii) the Guarantor shall
pay the amount of such deduction or withholding as required by
applicable law.
(g) Binding Effect: This Agreement shall be binding upon the Guarantor and
each direct or indirect successor and assignee of the Guarantor and
shall inure to the benefit of and be enforceable by the Lender and
each direct or indirect successor and assignee of the Lender.
(h) Entire Agreement, Modifications and Waivers: This Agreement contains
the entire agreement between the Lender and the Guarantor with respect
to the subject matter of this Agreement and supersedes each action
heretofore taken or not taken, each course of conduct heretofore
pursued, accepted or acquiesced in, and each oral, written or other
agreement and representation heretofore made, by or on behalf of the
Lender with respect thereto. No action heretofore or hereafter taken
or not taken, no course of conduct heretofore or hereafter pursued,
accepted or acquiesced in, no oral, written or other agreement or
representation heretofore made, and no agreement or representation
hereafter made other then in writing, by or on behalf of the Lender
shall modify or terminate this Agreement, impair or otherwise
adversely affect any obligation of the Guarantor pursuant to this
Agreement or any right or remedy of the Lender pursuant to this
Agreement or arising or accruing as a result of this Agreement or
operate as a waiver of any such right or remedy. No modification of
this Agreement or waiver of any such right or remedy shall be
effective unless made in a writing duly executed by the Lender and
specifically referring to such modification or waiver.
(i) Rights and Remedies Cumulative: All rights and remedies of the Lender
pursuant to this Agreement or arising or accruing as a result of this
Agreement shall be cumulative, and no such right or remedy shall be
exclusive of any other such right or remedy.
(j) Extent of Consents and Waivers: Each consent and waiver of the
Guarantor contained in this Agreement shall be deemed to have been
given to the extent permitted by applicable law.
(k) Exercise of Rights; Requests: Except as expressly provided in this
Agreement, each right and remedy of the Lender pursuant to this
Agreement or arising or accruing as a result of this Agreement may be
exercised (i) at any time and from time to time, (ii) in the sole
discretion of the Lender, (iii) without any notice or demand of any
kind and (iv) whether or not any event or condition of default
relating to any of the Obligations or any Collateral has occurred or
existed, but the Lender shall not be obligated to exercise any such
right or remedy. Each such right and remedy may be exercised only to
the extent that the exercise thereof does not violate applicable law.
Each request by the Lender pursuant to this Agreement may be made (i)
at any time and from time to time, (ii) in the sole discretion of the
Lender and (iii) whether or not any Event of Default or any other
event or condition of default relating to any of the Obligations or
any Collateral has occurred or existed.
(l) Severability: Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. If, however, any such provision shall be prohibited by
or invalid under such law, it shall be deemed modified to conform to
the minimum requirements of such law, or, if for any reason it is not
deemed so modified, it shall be prohibited or invalid only to the
extent of such prohibition or invalidity without the remainder thereof
or any other such provision being prohibited or invalid.
(m) Governing Law: This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the law of the State of
Pennsylvania and the federal law of the United States without regard
to the law of any other jurisdiction.
(n) Headings: In this Agreement, headings of sections are for convenience
of reference only and have no substantive effect.
13. Consents and Waivers Relating to Legal Proceedings
(a) JURISDICTIONAL CONSENTS AND WAIVERS. EACH OF THE PARTIES KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY (I) CONSENTS IN EACH ACTION
AND OTHER LEGAL PROCEEDING COMMENCED BY THE LENDER AND ARISING OUT OF
OR OTHERWISE RELATING TO THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY
COLLATERAL TO THE NONEXCLUSIVE PERSONAL JURISDICTION OF ANY COURT THAT
IS EITHER A COURT OF RECORD OF THE STATE OF PENNSYLVANIA OR A COURT OF
THE UNITED STATES LOCATED IN THE STATE OF PENNSYLVANIA, (II) WAIVES
EACH OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR OTHER
LEGAL PROCEEDING, (III) WAIVES PERSONAL SERVICE OF PROCESS IN EACH
SUCH ACTION AND OTHER LEGAL PROCEEDING, (IV) CONSENTS TO THE MAKING OF
SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING BY
REGISTERED MAIL DIRECTED TO THE LAST ADDRESS SHOWN IN THE RECORDS
RELATING TO THIS AGREEMENT MAINTAINED BY THE SENDER, WITH SUCH SERVICE
OF PROCESS TO BE DEEMED COMPLETED FIVE DAYS AFTER THE MAILING THEREOF,
(V) WAIVES IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING EACH RIGHT
TO ASSERT ANY NONMANDATORY COUNTERCLAIM, ANY SETOFF OR ANY DEFENCE
BASED UPON ANY STATUTE OF LIMITATIONS OR CLAIM OF LACHES, (VI) WAIVES
EACH RIGHT TO ATTACK ANY FINAL JUDGMENT THAT IS OBTAINED AS A RESULT
OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING AND (VII) CONSENTS TO
EACH SUCH FINAL JUDGMENT BEING SUED UPON IN ANY COURT HAVING
JURISDICTION WITH RESPECT THERETO AND ENFORCED IN THE JURISDICTION IN
WHICH SUCH COURT IS LOCATED AS IF ISSUED BY SUCH COURT.
(b) WAIVER OF TRIAL BY JURY AND CLAIMS TO CERTAIN DAMAGES. EACH OF THE
PARTIES (I) KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY
WAIVES EACH RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND
EACH RIGHT TO ASSERT ANY CLAIM FOR DAMAGES (INCLUDING, BUT NOT LIMITED
TO, PUNITIVE DAMAGES) IN ADDITION TO ACTUAL DAMAGES IN, ANY ACTION OR
OTHER LEGAL PROCEEDING, WHETHER BASED ON ANY CONTRACT OR NEGLIGENT,
INTENTIONAL OR OTHER TORT OR OTHERWISE, ARISING OUT OF OR OTHERWISE
RELATING TO (A) THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY
COLLATERAL, (B) ANY TRANSACTION ARISING OUT OF OR OTHERWISE RELATING
TO THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY COLLATERAL OR (C) ANY
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS
AGREEMENT, ANY OF THE OBLIGATIONS OR ANY COLLATERAL AND (III)
CERTIFIES THAT NEITHER THE PARTY NOR ANY REPRESENTATIVE OF THE PARTY
HAS REPRESENTED THAT IT WILL NOT SEEK TO ENFORCE THE WAIVER MADE IN
THIS SECTION 13(b).
Dated August , 2002
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DERMA SCIENCES, INC.
Per:
------------------------------------------
Name:
Title:
ACKNOWLEDGEMENT
PROVINCE OF ONTARIO
On the day of August in the year 2002 before me, the
undersigned, a Notary Public in and for said Province, personally appeared
_____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
Notary Public
#5081259 v4
