Attached files
Exhibit 10.17
Agreement for
Purchase and Sale, Limited Exclusive Distribution and
Royalties,
and Servicing and Repairs of
dermaPACE®System
and Equipment
This
Agreement for Purchase and Sale, Limited Exclusive Distribution and
Royalties, and Servicing and Repairs of dermaPACE System and
Equipment (“Agreement”) is made and entered into the
13th day
of February, 2018, by and between Sanuwave Health,
Inc., a Nevada corporation (“SNWV”),
Premier
Shockwave Wound Care, Inc., a Georgia corporation
(“PSWC”), and Premier Shockwave,
Inc., a Georgia corporation (“PS”).
WHEREAS, SNWV has
developed technology and equipment using shockwave-based treatments
for wound care, including but not limited to diabetic foot ulcers,
known as the dermaPACE System, and SNWV desires to commercialize
the dermaPACE System in cooperation with PSWC, as provided in this
Agreement;
NOW,
THEREFORE, for and in consideration of the mutual covenants,
promises and agreements herein set forth, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged by the parties, the parties agree
as follows:
1. Definitions. For purposes of
this Agreement:
1.1 “dermaPACE
System and Equipment”, “System” and
“Equipment” shall mean the dermaPACE System and
Equipment developed by and manufactured by and on behalf of SNWV,
including future versions and developments, with each System to
include a dermaPACE shock wave device and operating system,
consisting of hardware, applicator, and “Wound Kits”
(as defined below), as reasonable, necessary, and appropriate to
perform dermaPACE Procedures, as well as supplemental hardware and
software as developed for use with dermaPACE System, (e.g. eKare)
when integrated and approved for use by the FDA.
1.2 “dermaPACE
Procedures” and “Procedures” shall mean the use
of the dermaPACE System and Equipment to provide shockwave
treatments on patients to treat wounds, including but not limited
to, diabetic foot ulcers.
1.3 The term
“transfer,” “dispose,” or any similar term
means any sale, exchange, gift, bequest, pledge, security interest,
or other alienation or disposition whatsoever of any shares of a
corporation or any interest therein, including any distribution by
an executor, administrator, or trustee, or ownership interest in a
corporation.
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DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
1.4 The term
“shares” means common shares of a corporation, and
includes the shares presently outstanding, any interest held
jointly by a holder as a tenant in common or otherwise and all
common shares which may hereafter be issued by a corporation, as
well as all rights to acquire additional shares of a corporation in
the future.
1.5 The term
“Stockholders” means those stockholders who are at the
time owners of record upon the books of a corporation of any of the
shares.
1.6 The term
“Wound Kit” means a disposable sleeve, ultrasound gel,
and other disposables as reasonable and appropriate for a dermaPACE
Procedure.
2. Purchase and Sale of dermaPACE System
and Equipment.
2.1 SNWV agrees to sell
to PSWC and PSWC agrees to purchase from SNWV, the dermaPACE System
and Equipment pursuant to the terms of this Agreement. Without
limitation, SNWV shall also supply at no cost a sufficient quantity
of Wound Kits and applicator refurbishments to PSWC, from time to
time, to facilitate and permit dermaPACE Procedures on patients by
third-party healthcare facilities in a reasonable and timely
manner.
2.2 Unless otherwise
agreed in writing, the purchase price for the dermaPACE System and
Equipment shall be as set forth in Exhibit “A”
hereto, which pricing shall remain valid for all Equipment for
orders by PSWC received by SNWV on or before the five (5) year
anniversary of this Agreement. Thereafter, unless otherwise
mutually agreed in writing by the parties, the pricing in
Exhibit
“A” shall renew and extend for additional terms
of five (5) years each, unless otherwise mutually agreed by the
parties in writing.
2.3 The parties agree
that PSWC’s purchase and SNWV’s sale of the Equipment
will include:
2.3.1. An
initial purchase of ten (10) dermaPACE Systems upon execution of
this Agreement. Initially, each System shall consist of one (1)
dermaPACE shockwave device and operating system, and one (1)
additional Applicator along with an appropriate quantity of Wound
Kits.
2.3.2. An
additional purchase of fifteen (15) dermaPACE Systems, within
ninety (90) days of the execution of this Agreement, along with an
appropriate quantity of Wound Kits.
2.3.3. An
additional subsequent purchase of not less than seventy-five (75)
dermaPACE Systems (to bring the total of purchased dermaPACE
Systems to not less than one hundred (100) within three (3) years
after the date of this Agreement), along with an appropriate
quantity of Wound Kits.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2.3.4. An
additional purchase of five (5) Systems for use for demonstrations
and back-up devices, within twenty-four (24) months after the date
of this Agreement, along with an appropriate quantity of Wound
Kits.
2.3.5. As
provided Exhibit
“A” hereto, in the event PSWC does not purchase
that quantity of dermaPACE Systems within the respective time
frames in this Section 2.3, then, in any such event, the
pricing for each additional Applicator shall be $[****] per device,
which price shall apply to all dermaPACE Systems purchased by PSWC
hereunder, including past, present, and future purchases by
PSWC.
2.4 The purchase price
for the System and Equipment shall be paid by PSWC to SNWV as
follows: fifty (50%) of the total purchase price for the purchased
System and Equipment is payable upon the order and purchase of the
System and Equipment; and fifty percent (50%) as the balance of the
total purchase price is payable within five (5) business days after
SNWV’s written or email notice to PSWC that the purchased
System and Equipment is ready for delivery to PSWC.
2.5 The System and
Equipment purchased by PSWC shall be delivered by SNWV to PSWC at
3360 Martin Farm Road, Suite 100-B, Suwanee,
GA 30024, or such other address as is designated in writing by
PSWC; provided, SNWV shall bear all shipment and delivery costs to
such address. SNWV will cooperate with PSWC to schedule delivery.
The Equipment and System are subject to inspection by PSWC and its
agents prior to acceptance of the System and Equipment. Defective
System and Equipment may be rejected by PSWC and returned to
SNWV.
2.6 Except as otherwise
expressly set forth in this Agreement, PSWC shall not sell, convey
or transfer the Equipment, or any component thereof to any
third-party without the prior written consent of SNWV. Provided,
nothing in this provision shall be construed or applied to limit,
restrict or prevent PSWC’s rights to lease, rent or convey
the Equipment to Premier Shockwave, Inc. (or any controlled
affiliate) (collectively, “PS”) for PS’s rental,
consignment, or lease of the Equipment to third-party healthcare
facilities for performance of dermaPACE Procedures by or at such
facilities.
2.7 For so long as PSWC
(or PS) has limited but exclusive distribution rights pursuant to
Article 3 to provide dermaPACE System to governmental
healthcare facilities, including those operated or supervised by
(i) the Indian Health Service, and all recognized Native
American tribes, nations and controlled organizations
(“IHS”) the federal health program for American Indians
and Alaskan natives, (ii) the Department of Veterans Affairs
(the “VA”), and the Department of Defense
(“DoD”) and Military Treatment Facilities
(“MTF’s”) (collectively, IHS, VA, DoD, and
MTF’s referred to as “Exclusive Accounts”), SNWV
shall not use, sell, lease, or convey, or permit a third-party to
use, sell, lease, or convey dermaPACE System or Equipment for use
by or at the Exclusive Accounts to perform dermaPACE
Procedures.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2.8 In the event of the
purchase of all of the issued and outstanding shares of stock of
PSWC by SNWV pursuant to this Agreement, or in the event the
limited exclusive distribution rights of PSWC (or PS) are
terminated as to the Exclusive Accounts under this Agreement, then
in any such event, PS shall have the right and option to purchase
from PSWC such dermaPACE System and Equipment (including Wound
Kits) as PS reasonably anticipates it will require to continue then
to provide dermaPACE Procedures at the MTF’s. PS’s
limited exclusive rights shall continue as to the MTF’s, PS
shall pay the royalties to SNWV, and SNWV’s obligations for
repair, replacement, service, maintenance, warranty, and the like,
as well as for supplying parts and Wound Kits shall continue. The
purchase price for the System and Equipment (and Wound Kits) shall
be in the amount of the book value on PSWC’s balance sheet on
the last day of the month immediately preceding the closing of the
sale of such equipment. At the closing, PS shall pay the purchase
price for the System and Equipment (and Wound Kits) in full, and
PSWC (or SNWV, as the case may be) shall deliver clear title to the
System and Equipment (and Wound Kits) with full warranty of title
to PS at the closing. Such closing shall be undertaken as a
“simultaneous” closing with the transactions giving
rise to PS’s purchase of System and Equipment hereunder (e.g.
under Article 3, 10, or 11) as may be practicable. PS may
delay a termination or closing, including under Article 3, 10,
or 11 in order to otherwise facilitate a simultaneous closing. The
parties agree to cooperate in good faith in an effort to cause
simultaneous closings under this provision.
2.9 Notwithstanding
anything to the contrary in this Agreement, SNWV acknowledges for
itself, successors, and assignees, that PS (an affiliate of PSWC)
has provided, is providing, and intends to provide certain
exclusive shockwave-based OssaTron equipment for use in
shockwave-based treatments of patients at MTF’s across the
U.S., and that PS will be facilitating the introduction, rental,
and use of dermaPACE System and Equipment at such MTF’s, with
the potential risk that the dermaPACE System and Equipment could be
used in lieu of and in competition with the shockwave-based
technology currently employed by PS. Accordingly, as further
inducement to PS (and PSWC) to enter into and perform its (their)
obligations under this Agreement, SNWV agrees for itself and its
affiliates, successors, transfers, and assigns, that neither SNWV,
nor any of its affiliates, successors, or assigns (including any
purchaser or licensee of the dermaPACE System and Equipment, or
rights, patents, or license relating thereto) shall use, lease, or
rent, or permit any third party to use, lease or rent dermaPACE
System and Equipment for use for shockwave-based procedures at or
with any MTF throughout the United States, at any time that
and for so long as PS (or an affiliate) is providing any
shockwave-based therapy or equipment to or at MTF’s in the
United States. This provision shall remain valid and
enforceable, notwithstanding any claims against or alleged breaches
or defaults by PS or PSWC under this Agreement, shall be
specifically enforceable, and PS and PSWC shall not be required to
post a bond or other surety as a condition to obtaining equitable
relief. The provision shall survive the expiration and termination
of this Agreement.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3. Limited Exclusive Distribution Rights
and Royalties.
3.1 SNWV grants to PSWC
(and its affiliate, PS) the limited but exclusive rights to
distribute, lease, rent and provide the dermaPACE System and
Equipment for dermaPACE Procedures by or at the Exclusive Accounts,
for five (5) years from the date of execution of this Agreement.
Said limited exclusive rights shall automatically renew and
continue for successive terms of five (5) years each, unless this
Agreement is terminated or cancelled by a party under
Section 14 or 15 of this Agreement. Provided, nothing herein
shall limit or restrict the rights of SNWV, or affiliated entities,
from offering the dermaPACE System and Equipment, including future
versions and developments, for use and commercialization involving
other than the Exclusive Accounts, for dermaPACE Procedures. In the
event SNWV desires to contract with PSWC (or PS) for any additional
technology, distribution, distribution channels, services, or
accounts, such engagement will be made only pursuant to a separate
written agreement executed by the appropriate parties.
3.2 During the term of
this Agreement and the rights granted to PSWC (and PS) hereunder,
SNWV grants to PSWC (and PS) an irrevocable, and limited license
and rights to use and to permit the Exclusive Accounts to use
rights, software, technology and otherwise of SNWV for the purpose
of performing dermaPACE Procedures using Equipment and System to
treat patients at or for the Exclusive Accounts.
3.3 It is anticipated
that the charge to an Exclusive Account for each dermaPACE
Procedure will range between $[****] and $[****] (“Revenue
Rate Range”). Provided, initially the charge to an Exclusive
Account will be no less than $[****] for each dermaPACE Procedure.
PSWC (and PS) may alter the actual charge per dermaPACE Procedures
within the Revenue Rate Range in its sole discretion.
3.4 PSWC (and PS)
agrees to use commercially reasonable efforts to commercialize the
dermaPACE System and Equipment, including to use existing contacts
with the Exclusive Accounts to develop business for dermaPACE
Procedures. The parties acknowledge that the Exclusive Accounts
involve governmental entities, and SNWV agrees to cooperate with
PSWC (and PS) and to provide SNWV’s best efforts to establish
payment and reimbursement by the Exclusive Accounts to PSWC (and
PS). Without limiting the foregoing, the parties will cooperate to
establish reimbursement rates for dermaPACE Procedures with the CMS
and/or providers of MediCare and MediCaid services as reasonable
and appropriate, and as provided in Section 3.7,
below.
3.5 During the terms of
the exclusive rights granted to PSWC (and PS) under this
Section 3.5, PSWC (and PS) agrees to pay to SNWV a royalty in
the amount of [****] per dermaPACE Procedure, unless adjusted as
expressly provided herein. The per procedure royalty rate will
apply to each dermaPACE Procedure at an Exclusive Account. A
patient may have multiple wounds treated in a single session, and
each wound (each non-union treated location) treatment shall be
subject to a separate royalty rate payment to SNWV as a separate
dermaPACE Procedure.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3.6 PSWC (and PS) agree
to pay the Royalties to SNWV, which shall be paid promptly without
notice on the fifteenth (15th) day of the month following the month
in which such dermaPACE Procedures were performed. PSWC (and PS)
agrees to pay to SNWV at 3360 Martin Farm Road,
Suite 100, Suwanee, GA 30024, or to such other person or
at such other place as SNWV may from time to time designate in
writing to PSWC (and PS).
3.7 SNWV may offer
dermaPACE Procedures to other than the Exclusive Accounts without
the consent of PSWC (or PS). In the event that SNWV requires a
reduction in lower bound of the Revenue Rate Range below $[****],
SNWV agrees to notify PSWC and PS of the new lower bound. If the
lower bound of the Revenue Rate Range is reduced below $[****],
then the royalty per dermaPACE Procedure payable by PSWC (or PS) to
SNWV shall be reduced by forty percent (40%) of the rate reduction
per procedure. Provided, however, notwithstanding the foregoing,
the minimum royalty rate per dermaPACE Procedure by or for
Exclusive Account payable to SNWV by PS (or PSWC) shall not be less
than $[****] per dermaPACE Procedure by or for an Exclusive
Account. By way of example and not limitation: should SNWV require
a reduction in the Revenue Rate Range from $[****] to $[****], then
the maximum royalty payment for all procedures from Exclusive
Accounts is reduced from $[****] to $[****], a $[****] reduction,
or forty percent (40%) of the $[****] reduction in the lower bound
price. Notwithstanding the foregoing, the Royalty Payment shall
never be less than $[****] per procedure (the “Minimum
Payment”).
PSWC
(and PS) may, at its sole discretion, place non-revenue devices at
Exclusive Accounts for appropriate non-revenue purposes. No royalty
is payable and PSWC (or PS) will not bill for such non-revenue
procedures. No royalty is payable for dermaPACE Procedures
performed for demonstration, marketing, educational, research,
testing, repair or training purposes.
4. Servicing, Maintenance and Repairs of
dermaPACE System and Equipment.
4.1 SNWV is responsible
for the manufacture, maintenance, service, repair, replacement,
refurbishing, upgrades, and warranty for the System and Equipment,
at the sole cost and expense of SNWV.
4.2 PSWC (and PS) will
cooperate with SNWV to schedule for the maintenance, service,
repair, replacement, refurbishing, upgrade, and warranty for the
System and Equipment.
4.3 SNWV agrees to pay
all shipping costs, including via Federal Express, for shipment of
used parts from a facility to SNWV for repair and refurbishing.
PSWC or (PS) agrees to pay all shipping costs, including Federal
Express, for shipment and delivery of System and Equipment,
including Wound Kits, to its facilities.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
5.1 SNWV acknowledges
and agrees that PSWC (and PS) intends to and shall rent and provide
a dermaPACE System to certain third-party healthcare facilities
(the Exclusive Accounts) throughout the United States and
elsewhere as a complete, turn-key, operating system to facilitate
and permit third-party healthcare facilities to perform dermaPACE
Procedures to treat wounds, including diabetic foot
ulcers.
5.2 PS (and PSWC) shall
use the Equipment in a careful and proper manner and shall comply
with all laws, ordinances, and regulations relating to the
possession, use, or maintenance of the Equipment.
5.3 If at any time
during the term of Agreement, SNWV supplies PSWC (and PS) labels,
identifying it as the manufacturer of the Equipment, PSWC shall
cooperate and affix the labels to the Equipment, as reasonable any
appropriate. PSWC may mark the Equipment with labels, plates, or
other markings, stating that the Equipment is owned by
PSWC.
6. Inspection. SNWV shall, at
reasonable times during business hours after notice, and in
cooperation with each facility where Equipment may be located, have
the right to enter into and on the premises where the Equipment may
be located for the purpose of inspecting the same or observing its
use. PSWC (and PS) shall give SNWV prompt notice of any
malfunction, misuse, or damage by any item of Equipment and shall,
whenever requested by SNWV, advise it of the location of the
Equipment.
7. Alterations and
Repairs.
7.1 Without the prior
written consent of the SNWV, PSWC (and PS) shall not make or permit
a third-party to make any alterations, additions, repairs, or
improvements to the Equipment; provided, PS (and PSWC) shall use
all reasonable efforts to make the Equipment available at the
request of SNWV for SNWV to perform the usual service and
maintenance on the Equipment. All additions and improvements of
whatsoever kind or nature made to the Equipment shall belong to and
become the property of PSWC (and PS).
7.2 SNWV, at its own
cost and expense, shall repair and maintain the Equipment in good
repair, condition, and working order and shall furnish any and all
parts, mechanisms, software, and devices required to keep the
Equipment in good mechanical and working order. PSWC (and PS) shall
cooperate with SNWV to schedule and deliver the Equipment for
repairs and maintenance by SNWV.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
8. SNWV Representations, Warranties, and
Covenants.
8.1 SNWV REPRESENTS AND
WARRANTS THAT IT IS THE OWNER OF THE EQUIPMENT AND dermaPACE
SYSTEM, WITH FULL RIGHTS AND AUTHORITY TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT. EACH dermaPACE SYSTEM AND EQUIPMENT WILL BE
DELIVERED IN GOOD CONDITION AND WORKING ORDER, AND IS FIT FOR USE
FOR ITS INTENDED PURPOSES. SNWV MAKES NO OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED.
8.2 The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein do not require
the consent, waiver, approval, license or authorization of any
person or public authorities; do not violate, in any material
respect, any provision of law applicable to SNWV do not conflict
with or result in any breach of any mortgage, deed of trust,
license, lease, indenture or other agreement or other instrument,
or any order, judgment, or any other restriction of any kind or
character, to which SNWV is a party or may be bound. PSWC will
obtain good and marketable title to all of the Equipment, subject
to no mortgage, pledges, liens, conditional sales agreement,
encumbrances, tax liens, security interests, charges, or claims.
SNWV has the corporate power to own and operate its business and
has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement. This Agreement, upon
due execution by SNWV, will constitute the legal, valid and binding
obligation of SNWV in accordance with the terms of this Agreement.
SNWV is solvent; that is, it has the ability to pay its debts when
they become due in the ordinary course of business, and its assets
exceed its liabilities. SNWV will not be rendered insolvent as a
result of these transactions contemplated herein. There are no
claims for brokerage commissions or finder’s fees in
connection with the transactions contemplated hereunder. The
foregoing representations, warranties and covenants set forth
herein shall be continuous and shall survive the Closing, and
delivery of the Equipment.
8.3 Under no
circumstances shall SNWV or PSWC (or PS) be liable to the other for
direct, indirect, remote, consequential or expectancy damages,
including but not limited to, loss of profits, loss of rentals or
otherwise.
9. PSWC Representations, Warranties, and
Covenants.
9.1 The execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated herein do not require the consent,
waiver, approval, license or authorization of any person or public
authorities; do not violate, in any material respect, any provision
of law applicable to PSWC, do not conflict with or result in any
breach of any mortgage, deed of trust, license, lease, indenture or
other agreement or other instrument, or any order, judgment, or any
other restriction of any kind or character, to which PSWC is a
party or may be bound. PSWC has the corporate power to own and
operate its business and has the requisite corporate power and
authority to enter into and perform its obligations under this
Agreement. This Agreement, upon due execution by PSWC, will
constitute the legal, valid and binding obligation of PSWC in
accordance with the terms of this Agreement. PSWC is solvent; that
is, it has the ability to pay its debts when they become due in the
ordinary course of business, and its assets exceed its liabilities.
PSWC will not be rendered insolvent as a result of these
transactions contemplated herein. There are no claims for brokerage
commissions or finder’s fees in connection with the
transactions contemplated hereunder. The foregoing representations,
warranties and covenants set forth herein shall be continuous and
shall survive the Closing, and delivery of the
Equipment.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
9.2 Under no
circumstances shall SNWV or PSWC (or PS) be liable to the other for
direct, indirect, remote, consequential or expectancy damages,
including but not limited to, loss of profits, loss of rentals or
otherwise.
10. Put Option.
10.1 In
the event of a “change in control” of SNWV, the
Stockholders of PSWC shall have the right and option to cause SNWV
to purchase all shares of stock of PSWC from its Stockholders. As
used herein, “change of control” means the transfer of
voting common stock of and/or voting rights of SNWV, by proxy, or
the removal or replacement of voting rights representing a change
in voting control of SNWV, or a majority of the board of directors
of SNWV, including by (i) an increase in the number of
directors, (ii) a merger or consolidation of SNWV with or into
another entity or person, or other reorganization, which results in
a change in control whereby the majority voting and/or equity
interests in SNWV may be exercised by third parties, or
(iii) any transaction or series of transactions in which the
majority voting interests of SNWV are transferred to a third
party.
10.2 Each
of the Stockholders of PSWC agrees that except as otherwise
specifically set forth in this Agreement, he will not transfer,
dispose of or encumber his shares of PSWC without the prior written
consent of SNWV. Provided, notwithstanding the foregoing, a
Stockholder of PSWC may transfer his shares of stock of PSWC to a
controlled entity, trust or other person so long as the transferee
remains bound by all covenants applicable to the transferor
Stockholder.
10.3 The
purchase price and terms for purchase of such shares shall be the
amount of the “Hurdle Value” (as defined below)
plus (5.5
times “AL6M
EBITDA”) plus
Book Value of Equipment (on PSWC’s books) plus PSWC Working
Capital.
As used
herein, “Hurdle Value” means initially Four Million
Dollars ($4,000,000). After the first twelve (12) months, the
Hurdle Value decreases by $250,000, and then decreases by an
additional $250,000 for each full month thereafter. By way of
example and not limitation, after sixteen (16) months, the Hurdle
Value would be Three Million Dollars ($3,000,000), and after the
twenty-eighth (28th) month would be zero ($0).
As used
herein, “AL6M EBITDA” means the annualized EBITDA for
the six-month period immediately preceding the change of control
date; provided, the parties agree to use the EBITDA from the last
six whole months, and partial months will be disregarded. The
meaning may also be described as [L6M EBITDA times 2].
As used
herein, “Book Value of Equipment” and “Working
Capital” shall have the respective meanings as ascribed under
reasonable, consistent accounting principles as actually applied by
PSWC and as such amounts are reflected in the books of PSWC in good
faith as of the last day of the month immediately preceding the
change of control date.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
10.4 In
the event SNWV purchases shares pursuant to the provisions of this
Agreement, the Stockholder or his personal representative, as the
case may be, shall endorse his certificate(s) representing the
shares to be transferred to SNWV with the applicable transfer
stamps affixed, and the parties shall execute and transfer all
documents necessary to effectuate such transfer at the closing (the
“Closing”) including, without limitation, a sworn
affidavit from the transferring party stating that the shares
transferred are free and clear of all liens, claims and
encumbrances other than those liens, claims and encumbrances
expressly effected pursuant to the terms of this Agreement. Unless
otherwise agreed by the parties, such closing shall be at the
offices of PSWC in Atlanta, Georgia.
10.5 The
purchase price for the shares shall be paid all cash at the
closing.
11. Call Option.
11.1 At
any time during the term of this Agreement, SNWV shall have the
right and option to purchase all issued and outstanding shares of
stock of PSWC from its Stockholders.
11.2 In
the event that SNWV elects, in its sole discretion, to exercise its
option to acquire all of the issued and outstanding shares of PSWC
(sometimes referred to as a “Repurchase Event”), SNWV
shall provide written notice to the Stockholders of PSWC and to
PS.
11.3 The
purchase price and terms for purchase of such shares shall be the
same price and payment terms as provided under Article 10,
above.
11.4 In
the event SNWV purchases shares pursuant to the provisions of this
Agreement, the Stockholder or his personal representative, as the
case may be, shall endorse his certificate(s) representing the
shares to be transferred to either the Corporation or a Stockholder
with the applicable transfer stamps affixed, and the parties shall
execute and transfer all documents necessary to effectuate such
transfer at the closing (the “Closing”) including,
without limitation, a sworn affidavit from the transferring party
stating that the shares transferred are free and clear of all
liens, claims and encumbrances other than those liens, claims and
encumbrances expressly effected pursuant to the terms of this
Agreement. Unless otherwise agreed by the parties, such closing
shall be at the offices of PSWC in Atlanta, Georgia.
12. Equipment Repurchase
Credit.
12.1 In
the event SNWV offers to repurchase, acquire, upgrade, exchange, or
replace the dermaPACE System and Equipment from all or
substantially all other accounts or other owners of dermaPACE
System and Equipment, SNWV will offer to purchase, acquire,
upgrade, exchange, or replace the dermaPACE System and Equipment
owned by PSWC (and PS) under terms and price consistent with those
offered to the other SNWV accounts.
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WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
12.2 In
the event SNWV repurchases, acquires, upgrades, exchanges, or
replaces dermaPACE System and Equipment from PSWC (or PS), PSWC (or
PS) shall execute a bill of sale with full warranty of title
pursuant to the provisions of this Agreement, and the parties shall
execute and transfer all documents necessary to effectuate such
transfer at the closing (the “Closing”) including,
without limitation, a sworn affidavit from the transferring party
stating that the Equipment transferred are free and clear of all
liens, claims and encumbrances other than those liens, claims and
encumbrances expressly effected pursuant to the terms of this
Agreement. Unless otherwise agreed by the parties, such closing
shall be at the offices of PSWC in Atlanta, Georgia.
12.3 Any
dermaPACE System or Equipment purchased, acquired, upgraded,
exchanged or replaced by SNWV under this Section 12 shall not
count or apply toward PSWC’s (or PS’s) MTR’s and
prior evaluations of compliance with the MTR’s will be
reevaluated.
12.4 At
the closing of any such Equipment repurchase, acquisition, upgrade,
exchange, or replacement, SNWV will credit against billings and
charges payable by PSWC for the new, substituted for replacement
Equipment, the full value of PSWC’s (or PS’s) Equipment
then being repurchased, acquired, upgraded, exchanged, or replaced
by SNWV.
13. Mediation and
Arbitration.
13.1 Any
controversy or claim against any party or arising from, out of or
relating to this Agreement, the breach thereof (hereinafter
referred to as “Claims”) (except for any claimed breach
of any non-competition, non-solicitation and non-disclosure
covenants) shall be submitted to an impartial mediator selected
jointly by the affected parties. In the event a party otherwise
requires injunctive relief to prevent irreparable harm or other
remedy as a practical matter only available from a court, such
party may file an action in the courts as provided herein to obtain
such remedy and maintain the status quo pending final resolution.
Accordingly, the parties hereby agree that at least
twenty (20) days before making a demand for binding
arbitration as provided hereunder, a party with a dispute of any
sort shall deliver to the opposing party a written proposal
outlining such Claim and any proposal such party cares to make for
nonbinding mediation as a means of resolving such dispute. Parties
are free to accept or reject any such procedure and make
counterproposals of their own. In the event the affected parties
are unable to agree upon a mediator and/or a mediation procedure
within twenty (20) days of the initial demand for mediation,
then either party may submit a request for mediation to the
American Arbitration Association (hereinafter referred to as
“AAA”) or to the Judicial Arbitration and Mediation
Services, Inc. (hereinafter referred to as “JAMS”) and
the mediator shall proceed under the rules of AAA or JAMS,
respectively, including, but not limited to, the appointment of a
mediator. All the involved parties shall attend a mediation
conference in Atlanta, Georgia and attempt to resolve any claims.
The parties to the mediation shall equally bear the costs of the
mediation, including without limitation, the fees of the mediator
and of the related costs and administrative expenses. Each party
shall bear its respective attorneys’ fees and expenses and
any related expense incurred in the presentation of that
Party’s case. Should any party fail to comply with the
requirement of proposing nonbinding mediation before demanding
arbitration, the arbitrator shall order such party to submit to
non-binding mediation under terms decided by the arbitrator before
allowing the case to proceed unless the arbitrator determines in
its discretion that non-binding mediation would serve no
purpose.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
13.2 The
parties hereby agree that if the parties are unable to resolve all
Claims, any unresolved Claims, including any dispute as to whether
a matter constitutes a Claim, shall be determined by final and
binding arbitration. The parties shall submit the Claim to final
and binding arbitration in Atlanta, Georgia, in accordance with the
rules for Expedited Arbitration Procedures of AAA or JAMS,
respectively, or other generally recognized and reputable
arbitration service, as may be mutually agreed on a case by case
basis in good faith by the parties by an experienced business law
arbitrator licensed to practice law in the State of Georgia in
accordance with said Procedures (or other applicable rules, except
as herein specified). The arbitrator shall be selected as provided
by the applicable Procedures.
13.3 A
demand for arbitration shall be made within a reasonable time after
the Claim has arisen and termination of unsuccessful mediation
efforts. In no event shall the demand for arbitration be made after
the date when institution of legal and/or equitable proceedings
based on such Claim would be barred by the applicable statute of
limitations. Each party to the arbitration will be entitled to be
represented by counsel and will have the opportunity to take one
deposition of an opposing party or witness before the arbitration
hearing. By mutual agreement of the Parties, additional depositions
may be taken. Further discovery may be ordered by the arbitrator
upon a Party’s showing of a particular need for such
discovery. The arbitrator shall have the authority to hear and
grant a motion to dismiss and/or for summary judgment, applying the
standards governing such motions under the Federal Rules of Civil
Procedure. Each party shall have the right to subpoena witnesses
and documents for the arbitration hearing. A court reporter shall
record all arbitration proceedings. In his deliberation, analysis
and decision, the arbitrator shall apply the applicable rules and
principles of law to all issues, including without limitation, to
the interpretation and construction of contractual obligations, the
breach thereof, the remedies available therefore, and the liability
for damages pursuant thereto. In the event a party requires
injunctive relief to prevent irreparable harm or other remedy as a
practical matter only available from a court, such party may file
an action in the courts as provided herein to obtain such remedy,
but any such court will immediately stay any further proceedings
and refer the matter to binding arbitration.
13.4 With
respect to any Claim brought to arbitration hereunder, any party
shall be entitled to recover whatever damages would otherwise be
available to it in any legal proceeding based upon the federal
and/or state law applicable to the Claim. The arbitrator shall be
authorized to award damages in addition to injunctive relief. THE
PARTIES HERETO WAIVE ANY CLAIM TO EXPECTANCY DAMAGES AND PUNITIVE
DAMAGES UNDER THIS AGREEMENT AND WITH REGARD TO ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN. Furthermore, the arbitrator may
award attorneys’ fees and costs in its sole discretion and
without regard to any substantive or procedural restriction on the
amount of such award under Georgia or other applicable law. The
decision of the arbitrator may be entered and enforced in any court
of competent jurisdiction. Each party shall pay the fees of their
respective attorneys (except as otherwise awarded by the
arbitrator), the expenses of their witnesses and any other expenses
connected with presenting their cases. Other costs, including the
fees of the mediator, the arbitrator, the cost of any record or
transcript of the arbitration, and administrative fees, shall be
borne equally by the parties involved.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
13.5 No
party shall be required to post a bond before obtaining injunctive
relief. To the extent resolution of a dispute may require
inspection of proprietary information of either Party, on the
request of a party desiring protection of its rights, the
arbitrator may order in camera inspection of the proprietary
information and limit disclosure to the other party in such a way
as to provide maximum protection for such Party’s proprietary
rights.
13.6 Should
any party pursue any dispute or matter covered by this
Paragraph 13 by any method other than said mediation and
arbitration (other than to enforce restrictive covenants to
preserve the status quo pending mediation and arbitration),
the other party shall be entitled to recover from the first party
all damages, costs, expenses, and attorneys’ fees incurred as
a result of such action.
14. Breach, Default, and Waiver of
Breach.
14.1 If
PSWC (or PS) fails to pay any royalties or other amount herein
provided within thirty (30) days after the same is due and payable,
or if any execution of any other writ of process shall be issued in
any action or proceeding against PSWC (or PS) whereby the Equipment
may be seized, taken, or distrained, or if a proceeding in
bankruptcy, receivership, or insolvency shall be instituted by or
against PSWC (or PS) or its property, or if PSWC (or PS) shall
enter into any arrangement or composition with his creditors, or if
PSWC (or PS), with regard to any item or items of Equipment, fails
to observe, keep, or perform any other provision of this Agreement
required to be observed, kept, or performed by PSWC (or PS), PSWC
(or PS) shall be in material breach, and if such breach shall
continue for thirty (30) days after receipt of written notice for
an alleged monetary default or for sixty (60) days after receipt of
written notice thereof by PSWC (and PS) for any other alleged
default, SNWV shall have the right to exercise any one or more of
the following remedies:
(a) To sue for and
recover all royalties and other payments then accrued or thereafter
accruing, with respect to any or all items of
Equipment;
(b) To terminate the
exclusive rights of PSWC (and PS) under this Agreement, other than
PS’s limited exclusive rights as to MTF’s and
SNWV’s related obligations; and
(c) To pursue any other
remedy at law or in equity.
Notwithstanding any
said repossession, or any other action which SNWV may take, PSWC
(and PS) shall be and remain liable for the full performance of all
obligations to be performed by PSWC (and PS) under this
Agreement.
All
such remedies are cumulative, and may be exercised concurrently or
separately, at the election of SNWV.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
14.2 PSWC
(and PS) hereby waives, and agrees not to assert, any and all
existing and future claims, defenses, and offsets against any
payments due hereunder. Each Party agrees to pay the amounts
hereunder regardless of any claim, defense, or offset which may be
asserted against the other Party.
14.3 The
waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent
breach.
15. Default by SNWV;
Remedies.
15.1 It
shall constitute an Event of Default by SNWV under this Agreement
if SNWV :
(a) Fails to observe,
keep or perform any other material provision of this Agreement
required to be observed, kept or performed by SNWV; or
(b) Fails to remedy,
cure or remove failure in payment within thirty (30) business days
after receipt of written notice thereof from PSWC (or PS) or fails
to remedy, cure or remove within sixty (60) days such other failure
in observing, keeping or performing the provisions of this
Agreement; or
(c) Materially fails to
provide the services called for hereunder, which material failure
continues for a sixty (60) day period after it shall receive
written notice from PSWC (or PS) of a Default under this Section,
it being agreed that the delivery of the third such notice within
any period of twelve (12) consecutive months shall constitute an
incurable event of default.
15.2 If
an Event of Default by SNWV shall occur, PSWC (and PS) shall have
the right to exercise any one or more of the following
remedies:
(a) Demand mediation
and arbitration under Section 13, including an action for
specific performance by SNWV;
(b) Make demand for and
recover all fees and other payments then accrued or thereafter
accruing from such Event of Default through a demand for mediation
and binding arbitration as provided hereunder;
(c) Terminate this
Agreement and any other agreement by and between SNWV and PSWC (and
PS); and
(d) Pursue any other
remedy at law or in equity, subject to the agreement to arbitrate
all disputes as provided herein.
Notwithstanding any
action which PSWC (and PS) may take, SNWV shall be and remain
liable for the full performance of all obligations on the part of
SNWV to be performed under this Agreement.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
16. Severability. This Agreement is
intended to be performed in accordance with and only to the extent
permitted by all applicable laws, ordinances, rules and regulations
of the jurisdictions in which a party does business. If any
provision of this Agreement or the application thereof to any
person or circumstances shall, for any reason and to any extent, be
invalid and unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances
shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
17. Cooperation. The parties shall
cooperate fully with each other and their respective counsel and
representatives in connection with all steps to be taken as part of
their obligations under this Agreement.
18. Paragraph Heading and Pronouns.
Any paragraph headings contained in this Agreement are for
convenience and reference purposes only and shall under no
circumstances affect the meaning or interpretation of this
Agreement. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as
the identification of the person or persons, firm or firms,
corporation or corporations may require.
19. Benefit. This Agreement shall
be binding upon and inure to the benefit of the parties, their
executors, administrators, personal representatives, successors and
assigns. Provided, no party may assign its rights or obligations
under this Agreement without the prior express written consent of
the other parties. The executor or administrator of any Stockholder
shall be authorized to make, execute and deliver any document
necessary or desirable to effectuate the terms and provisions of
this Agreement and to receive notices pursuant to this
Agreement.
20. Notice. Any notice, request,
demand, report or other instrument which may be required or
permitted under this Agreement shall be in writing and shall be
sent by registered or certified mail, return receipt requested,
addressed in the case of a corporation to its principal office, and
in the case of the Stockholders to each Stockholder’s address
appearing on the records of that corporation, or to the
Stockholder’s residence, or to such other address as may be
designated by the Stockholder in writing to the
parties.
21. Entire Agreement. No change or
modification of this Agreement shall be valid unless the same shall
be in writing and shall be signed by the parties hereto. In the
event any term or provision of this Agreement shall be
unenforceable, the remaining terms and provisions shall remain in
effect and enforceable in accordance with their terms. This writing
constitutes the entire agreement and understanding among the
parties hereto.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
22. Interpretation. This Agreement
shall be construed and applied to permit and facilitate the
commercialization of the dermaPACE System, and the rights and
obligations of the parties shall be so interpreted. Within this
Agreement, the singular shall include the plural and the plural
shall include the singular, and any gender shall include the other
gender, all as the meaning in the context of this Agreement shall
require. As used herein “including” shall be construed
as “including but not limited to.” Should any provision
of this Agreement require judicial interpretation, it is agreed
that the court interpreting or construing the same shall not imply
a presumption that the terms hereof shall be more strictly
construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party
who itself or through its agent prepared this Agreement, it being
agreed that all parties have had the opportunity to review and
understand this Agreement. It is the intent and understanding of
the parties that this Agreement and Exhibit “A”
hereto shall be construed and applied in a consistent and
complementary manner; however, in the event of any inconsistency or
ambiguity between the terms of this Agreement and
Exhibit “A”, the terms and provisions of
Exhibit “A” shall control.
23. Governing Law. This Agreement
shall be subject to and governed by the laws of the State of
Georgia. The parties agree to submit to the jurisdiction of the
Georgia courts and agree that the Georgia courts shall have
jurisdiction over any controversy arising out of or related to this
Agreement or the performance thereof. The parties further agree
that damages sustained due to any breach or threatened breach shall
be difficult to ascertain and are not compensable solely by
monetary damages; accordingly, the parties agree that this
Agreement shall be specifically enforceable in a court of equity of
appropriate jurisdiction.
24. Survival. All representations,
warranties, and covenants contained in this Agreement shall survive
the execution and delivery of this Agreement and all documents
executed in performance of this Agreement.
25. Confidentiality.
25.1 Each
party agrees not to use or disclose any Confidential Information of
the other party (ies) during the term of the limited exclusive
distribution rights under Section 3, above, and for
three (3) years thereafter. Provided, neither party shall use
or disclose the Trade Secrets of the other party (ies) for so long
as such item remains a Trade Secret under Georgia law.
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
25.2 “Confidential
Information” means proprietary and confidential information
or data, other than Trade Secrets (as defined under applicable
law), which is valuable to, and related to the business of SNWV and
PSWC (and PS), respectively. Confidential Information shall include
the following information, without limitation, to the extent such
information is not already included in the definition of Trade
Secrets either at the time of the execution of this Agreement or
any time thereafter: (i) confidential financial and business
information, prospective projects and business opportunities,
marketing programs, strategies, and projections and plans of SNWV
and PSWC (and PS), respectively, know how, procedures manuals,
training materials, internal reporting System and methods of
operation; and (ii) such other materials and items as SNWV and
PSWC (and PS), respectively, may designate, mark, or otherwise
identify as confidential from time to time. Any information
contained within any such materials that is already generally known
to the public shall not be a part of the Confidential Information,
unless such information became known because of a disclosure in
violation of this Agreement or another agreement of a similar
purpose between “SNWV” and PSWC (or PS),
respectively” and any third party. Any such information shall
cease to be Confidential Information for the purposes of this
Agreement at such time as that specific information becomes
generally known to the public unless such disclosure is in
violation of non-disclosure provisions of this Agreement or another
agreement between “SNWV” and PSWC (or PS),
respectively” and any third party.
25.3 Each
party acknowledges and agrees that (i) the foregoing covenants
set forth in Sections 25.1 immediately above are an essential
part of this Agreement; (ii) the terms of the covenants are
reasonable; (iii) any breach of a covenant would result in
immediate and irreparable harm to SNWV and PSWC (or PS),
respectively; and (iv) such damages would be difficult to
ascertain and would not be entirely money damages. Therefore, each
party agrees that, in the event of a breach or threatened breach of
any covenant under Section 25.1 immediately above, SNWV and
PSWC (or PS), respectively, shall be entitled to an injunction or
other equitable relief to restrain any breach or threatened breach
of any such covenant, in addition to the right of SNWV and PSWC (or
PS), respectively, to an award for damages or other relief that
“SNWV” and PSWC (or PS), respectively” may have
under the law, including without limitation reasonable
attorneys’ fees and expenses incurred by SNWV and PSWC (or
PS), respectively, in enforcing any claim hereunder, regardless of
any claim that any party may have or assert against SNWV and PSWC
(or PS), respectively, regarding any breach of this Agreement by
SNWV and PSWC (or PS), respectively, or otherwise. Each party
hereby waives the right to request, petition or seek that SNWV and
PSWC (or PS), respectively, give security or bond as a prerequisite
to the issuance by any appropriate court of an injunction, a
restraining order or interlocutory injunction pursuant to any
applicable law to enforce any one or more of the foregoing
covenants.
25.4 Each
party acknowledges and agrees that in the event any court with
jurisdiction to determine the enforceability of one or more
covenants set forth in this Agreement rules that any of the terms
and conditions of one or more covenants exceeds what the court
determines is lawfully permissible, the court may reform the
duration or other terms and conditions of any such one or more
covenants in order to render it reasonable in light of all
circumstances and each party agrees to comply with any such
modified covenants.
[Signatures on the Following Page]
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
IN
WITNESS THEREOF, the parties hereto have duly executed this
Agreement, as amended, as of the fully executed Date
below.
|
/s/
Lisa Sundstrom__________________
Witness
3/5/18____________________________
Date
Executed
|
SNWV:
Sanuwave Health, Inc.
By:
/s/ Kevin A.
Richardson _________________
Authorized
Officer
3/5/18________________________________
Date
Executed
|
|
|
|
|
/s/
A. Michael Stolarski______________
Witness
2/12/18___________________________
Date
Executed
|
PSWC:
Premier Shockwave Wound Care, Inc.
By:
/s/ David Anderson__________________
Authorized
Officer
2/12/18_______________________________
Date
Executed
|
|
|
|
|
/s/
David Anderson_________________
Witness
2/12/18___________________________
Date
Executed
|
PS:
Premier Shockwave, Inc.
By:
/s/ A. Michael Stolarski_______________
Authorized
Officer
2/12/18_______________________________
Date
Executed
|
|
|
|
FOR THE
EXPRESS BUT LIMITED PURPOSE OF ACKNOWLEDGING THEIR OBLIGATIONS
UNDER SECTION 11 above, the Stockholders of Premier Shockwave
Wound Care, Inc. have executed this Agreement.
|
/s/ A.
Michael Stolarski_______
A.
MICHAEL STOLARSKI
|
/s/
David Anderson________
DAVID
ANDERSON
|
|
|
|
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Exhibit “A” to
Agreement for
Purchase and Sale, Limited Distribution and Royalties,
and Servicing and Repairs of
dermaPACE System and Equipment
Pricing for dermaPACE System and Equipment
|
1. Each
dermaPACE System will consist of:
|
$ [****]
each
|
|
-
dermaPACE Shockwave device and operating system with one (1)
Applicator; as well as, supplemental hardware developed for use
with dermaPACE System
|
|
|
-
Additional Applicator
|
$ [****]
each
|
|
- eKare
equipment with iPad, when integrated and approved by the
FDA
|
Cost +
20% (not to exceed $3,000 each)
|
|
- Carry
Case
|
Cost +
20% (not to exceed $800 each
|
|
|
|
|
2. Wound Kits,
consisting of an ultrasound sleeve, ultrasound gel, and other
disposables
|
No
Charge
|
|
|
|
|
|
|
|
3. dermaPACE
shockwave device and operating system with one (1) Applicator
(non-revenue)
|
Cost +
25%
|
|
|
|
|
4. The pricing
set forth in 1 and 2, above, is based on PSWC completing the
minimum purchase requirement (“MPR”) of 100 dermaPACE
System within the time frames provided in this Agreement.
Notwithstanding anything to the contrary in this Agreement and this
Exhibit “A”,
|
|
|
(a) If
the MPR is not timely completed, then the price for each Additional
Applicator, shall be $[****], not $[****] each, which price
increase shall be applicable to all Additional Applicators sold
under this Agreement, including past, present, and future
sales;
|
|
|
(b) Non-revenue
generating devices (such as equipment used exclusively for
training, education, and testing) do not count towards PSWC’s
take-down requirements under this Agreement, including the MPR
hereunder.
|
|
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OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.