EXHIBIT 10.1
MANUFACTURE AND SUPPLY AGREEMENT
This is a MANUFACTURE AND SUPPLY AGREEMENT (this "Agreement"), made as
of May 1, 2002 among DEXTERITY SURGICAL, INC., a Delaware corporation
("Dexterity"), MEDICAL CREATIVE TECHNOLOGIES, INC., a Pennsylvania corporation
("MCT") and ROBERT D. RAMBO, the principal shareholder and Chief Executive
Officer of MCT ("Rambo").
Background
A. Dexterity owns the rights to manufacture and sell certain surgical
products now marketed by it under the brand names "Protractor" and
"PneumoSleeve."
B. MCT is a contract manufacturer of medical devices and has heretofore
manufactured and supplied to Dexterity the above mentioned surgical products.
C. The purpose of this Agreement is to set forth the terms on which MCT
will manufacture and supply, and Dexterity will purchase, the Products
(hereinafter defined) during the term hereof.
D. Rambo is a party to this Agreement solely to undertake the
obligations, and acquire the rights, set forth in Sections 12 and 18 of this
Agreement, and he shall have no obligation or rights under or with respect to
any other provision of this Agreement.
Terms
The parties, intending to be legally bound hereby, agree as follows:
1. Definitions.
"Assignee" or "Assign" of Dexterity means any Person to whom Dexterity,
or any of its successors or assigns, shall have assigned any of Dexterity's
rights hereunder or under the Resolution Agreement relating to the manufacture
or supply of a Product for sale to a person other than Dexterity or such
successor or assign.
"Change of Control" has the meaning specified therefor in Section 14.
"Contract Year" has the meaning specified therefor in Section 3.
"Disposition" has the meaning specified therefor in Section 14.
"Disposition of Dexterity's Business" has the meaning specified
therefor in Section 14.
"FDA" means the U.S. Food and Drug Administration.
"Law" means the law in effect in any relevant jurisdiction, including
the statutes, ordinances, rules, regulations, orders and decrees of any
government or governmental board, commission or other authority (including any
judicial authority) in effect in such jurisdiction.
"Licensee" of Dexterity means any Person to whom Dexterity, or any of
its successors or assigns, shall have granted any right or license to
manufacture and sell (otherwise than to Dexterity or a successor or assign of
Dexterity) a Product.
"Manufacturing Equipment" has the meaning specified therefor in Section
8.
"Manufacturing Processes" has the meaning specified therefor in Section
18.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization or a governmental body or
agency.
"PneumoSleeve" means the extracorporeal pneumoperitoneum surgical
device offered for sale by Dexterity, now known as the Dexterity "PneumoSleeve,"
as such product may be modified from time to time hereafter by Dexterity.
"Products" mean the PneumoSleeve and the Protractor.
"Protractor" means the incision liner and retractor surgical device
offered for sale by Dexterity, now known as the Dexterity "Protractor," as such
product may be modified from time to time hereafter by Dexterity.
"Purchase Price" has the meaning specified therefor in Section 5.
"Quarterly Minimum" has the meaning specified therefor in Section 6.
"Quarterly Period" has the meaning specified therefor in Section 6.
"Resolution Agreement" means the Agreement among Dexterity Incorporated
(which has since merged into Dexterity), MCT and Robert D. Rambo, dated as of
June 30, 1998.
"Specifications" has the meaning specified therefor in Section 10.
"Sterile Samples" has the meaning specified therefor in Section 5(b).
"Successor" of Dexterity means any Person (i) who shall have succeeded,
directly or indirectly, by merger, purchase of assets, operation of law or
otherwise, to substantially all the business of Dexterity relating to the
production of a Product or (ii) is a successor or assign of such a Person.
"Term" or "Term of this Agreement" has the meaning specified therefor
in Section 3.
"Training Products" has the meaning specified therefor in Section 5(b).
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"Unit" has the meaning specified therefor in Section 5.
2. Manufacture and Supply of Products. During the Term hereof MCT will
manufacture, sterilize, package and deliver to Dexterity or its order such
Products as Dexterity may order from time to time, by purchase orders submitted
for reasonable quantities on reasonable notice.
3. Term. The initial term of this Agreement commences on the date
hereof and ends one year thereafter. By mutual written agreement the parties may
extend the term of this Agreement upon the expiration of the initial term, but
such term will not be renewed automatically. The initial term as it may be
extended or renewed in accordance with the foregoing is referred to herein as
the "Term." "Contract Year" means each successive twelve month period of the
Term, the first of which commences on the date of this Agreement.
4. Exclusivity. During the Term Dexterity will not purchase from any
supplier other than MCT its requirements for Products for sale to customers
within or without the United States. The obligation of Dexterity to comply with
the restriction on Dexterity's purchase of its requirements for Products
provided solely from MCT is subject to MCT's satisfaction of the reasonable
requirements of Dexterity for Products as forecasted by Dexterity to MCT in the
manner provided for in Section 5.
5. Purchase Price; Forecasts of Requirements.
(a) Purchase Prices of Products for Resale. Subject to the
other provisions of this Section, MCT will supply Products to Dexterity for
resale at the following prices (as adjusted in accordance with the provisions of
this Section, the "Purchase Prices"):
<Table>
<Caption>
Product Purchase Price
------- --------------
Protractor 80MM $40.68 each Unit
Protractor 110MM $48.09 each Unit
Protractor 170MM $80.27 each Unit
Protractor 210MM $92.98 each Unit
PneumoSleeve Set $53.95 each Unit
</Table>
A "Unit" means, with respect to Protractor Products, a box of
five (5) such Products and, with respect to PneumoSleeve Products, a box of one
(1) such Product.
The Purchase Prices stated in this Agreement are
all-inclusive, including all raw materials, sterilization, packaging, overhead,
labor and sales and use taxes or similar taxes or charges, if any. No additional
amount shall be charged for any Unit supplied pursuant to this Agreement.
(b) Purchase Prices of Products Purchased for Purposes Other
than Sale. Subject to the other provisions of this Section, MCT will supply
non-sterile Products for training in the use of the Product ("Training
Products") and sterile Products purchased for marketing or
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promotional purposes ("Sterile Samples") at a Purchase Price equal to MCT's cost
of manufacture. Without MCT's consent Dexterity may not order Training Products
or Sterile Samples for delivery in any Contract Year in quantities greater, in
the aggregate for all such Products, than the lesser of 700 Units or 10% of the
total number of Product Units which Dexterity reasonably expects to order for
delivery in such Contract Year.
(c) Price Increases. The Purchase Prices may be increased only
upon an increase in MCT's purchase price of raw materials purchased from an
unaffiliated supplier. Any such increase of any Purchase Price will be limited
to a direct pass-through of the actual increase of the cost of such raw
materials. MCT will use reasonable efforts to keep any such increases to a
minimum.
(d) Forecasts. Before the execution of this Agreement
Dexterity has delivered to MCT its forecasted requirements for Products for the
first Contract Year on a calendar monthly basis. Commencing in the second month
of the Term, Dexterity will deliver to MCT on the 15th day of each month an
updated rolling forecast of its requirements for Products for the next twelve
(12) months. The quantities set forth in each such forecast for the first three
(3) calendar months referred to in the forecast will constitute firm binding
orders of Dexterity for its requirements for Products. Upon termination or
expiration of the Term, Dexterity will purchase from MCT, at MCT's cost, any
components in MCT's inventory which were procured by MCT (i) for use in the
manufacture of Protractors having a procurement lead time greater than three (3)
months or (ii) for use in the manufacture of PneumoSleeves which are in good
condition and useable for the manufacture of such Products to the extent that
the aggregate cost thereof does not exceed $75,000.
6. Minimum Quarterly Purchase Requirements.
(a) Beginning June 1, 2002, Dexterity will purchase from MCT
in each successive three month period of the Term (each, a "Quarterly Period")
the following minimum number of Units of Products (other than Sterile Samples or
Training Products) (the "Quarterly Minimum"). If the last such period of the
Term, not included in any prior Quarterly Period, shall be less than three
months, the Quarterly Minimum for such last period shall be reduced to an amount
bearing the same ratio to the following Quarterly Minimum amount as the number
of days of such last period bears to 92.
<Table>
<Caption>
Quarterly Minimum
-----------------
Protractor Line 1,248 Units per Quarterly Period in the aggregate
PneumoSleeve Line No minimums
</Table>
(b) The obligation to order the Quarterly Minimum amounts set
forth in Paragraph (a) of this Section is an obligation to take or pay.
Dexterity will pay to MCT the Purchase Price of any shortfall in its purchase
orders issued in any period referred to in such Paragraph (a) within seven (7)
days after receipt of an invoice therefor.
7. Terms of Delivery and Payment. Orders for Products will be delivered
F.O.B. MCT's Colmar, Pennsylvania manufacturing facility. Dexterity's orders
issued during the first
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three (3) months of the Term for Products to be manufactured by MCT after the
date of this Agreement (i.e., not supplied from inventory held at the date of
this Agreement) will be accompanied by an advance payment of fifty percent (50%)
of the Purchase Price of such Products. MCT will deliver the Products subject to
the first order for Products to be manufactured pursuant hereto within six (6)
weeks after the raw materials therefor have been obtained by MCT. Thereafter,
MCT will deliver Products within six (6) weeks of the date of the order. MCT
will pack and ship the Products in accordance with prior practice, subject to
reasonable change upon notice from Dexterity. Dexterity shall have fifteen (15)
days from the date of delivery of an order within which to inspect the shipped
Products and to reject any Products which may be defective in any way. Unless
Dexterity notifies MCT in writing of any rejection of any Products, full payment
for each order received by Dexterity will be due and payable on or before seven
(7) days following receipt of the invoice for such order. Dexterity's obligation
to make payment on account of Products accepted in any shipment will not be
affected by rejection of any one or more Products unless Dexterity rejects all
the Products in such shipment.
8. Maintenance and Repair of Equipment; Return of Equipment upon
Expiration or Termination of the Term.
(a) MCT acknowledges that the manufacturing equipment now or
hereafter installed or otherwise located in MCT's plant and used for the
production of Products (the "Manufacturing Equipment") is owned by Dexterity.
(b) MCT will use reasonable efforts to maintain and preserve
the Manufacturing Equipment while it is in MCT's possession. Dexterity will
reimburse MCT for all reasonable expenses incurred by MCT to independent
suppliers in connection with the maintenance of the Manufacturing Equipment, but
MCT will make no charge to Dexterity for the services of its employees pursuant
to this Section.
(c) MCT will deliver the Manufacturing Equipment to Dexterity
at Dexterity's cost and expense (or, at MCT's election, permit Dexterity to
remove the Manufacturing Equipment) upon Dexterity's demand, without any claim
of lien or other interest therein. Upon MCT's request, and as a condition to
MCT's obligation to package the Manufacturing Equipment for shipment, Dexterity
will advance to MCT the costs to be incurred by it to independent suppliers for
rigging, packing and preparing the Manufacturing Equipment for shipment. If
Dexterity fails to request MCT to deliver the Manufacturing Equipment (or to
request that Dexterity be permitted to remove the Manufacturing Equipment) in
accordance with the foregoing provisions of this Paragraph (c), then upon MCT's
demand, Dexterity will promptly remove the Manufacturing Equipment after the
expiration or termination of the Term.
(d) In connection with the expiration or termination of the
Term, MCT will provide to Dexterity such technical and other assistance as
Dexterity may reasonably request to facilitate the effective transfer, to such
facility as Dexterity may designate, of the manufacturing operations of the
Products. Such assistance will include, to the extent requested by Dexterity,
(i) training of manufacturing personnel in the Manufacturing Processes at MCT's
facilities and at the designated other manufacturing site, (ii) rigging and, at
Dexterity's cost and expense,
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shipping the Manufacturing Equipment and (iii) assisting in the set-up of the
Manufacturing Equipment and start-up of manufacturing operations (including
validation of the manufacturing process practices in accordance with applicable
FDA regulations). Dexterity will pay MCT fees for its services pursuant to this
Paragraph (d), reasonable in amount and consistent with MCT's charges for
similar services to other customers.
9. Maintenance of Qualifications. MCT represents that it is an FDA
registered manufacturer and is ISO 9001 and EN 46001 certified. MCT will
maintain such registration and certifications in good standing during the Term.
MCT will notify Dexterity of any change in such registration or certifications
or MCT's receipt of any notice that any such registration or certification may
be suspended, terminated or otherwise adversely affected.
10. Product Warranties.
(a) MCT warrants that each of the Products will be
manufactured and delivered in accordance with the Specifications, applicable Law
and good manufacturing practices (including all applicable regulations and other
requirements of the FDA), free of defects in materials or workmanship under
normal use and service and fit for the purpose of surgical procedures for which
the Products are intended. "Specifications" means the specifications for the
Products and their manufacture set forth in Dexterity's Process Control
Documentation, which has been prepared for Dexterity by MCT, as such
Documentation may be modified from time to time during the Term. MCT will
promptly replace any Products failing to conform to the foregoing warranties,
which shall be Dexterity's exclusive remedy for breach of the covenants of this
Paragraph (a).
(b) MCT will comply with all requirements of Law (including
all regulations and other requirements of the FDA) relating to the manufacture,
delivery or storage of the Products and records relating thereto.
11. Insurance. During the Term, MCT will maintain property and
liability insurance issued by insurers admitted and licensed therefor in
Pennsylvania. The minimum coverage and limits of such insurance will be as
follows:
<Table>
Property (Raw Material, Replacement Value, $300,000 per occurrence
Special Causes of Loss Equipment $500,000 aggregate
and Finished Product)
General Liability, including Products Liability $1,000,000 per occurrence
$2,000,000 aggregate
</Table>
All such insurance will be maintained on an occurrence basis. MCT will cause
Dexterity to be named as an additional insured under MCT's general liability
insurance policy. Upon the execution of this Agreement and thereafter, from time
to time at Dexterity's request, MCT will provide Dexterity with a Certificate of
Insurance evidencing that the insurance required by this Agreement is in force
and showing that the insurers will provide Dexterity with notice at least thirty
(30) days before any modification, lapse, cancellation or expiration of any such
policy.
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The provisions of this Section for maintaining insurance shall in no way limit
MCT's liability or obligations under this Agreement.
12. Early Termination of Certain Restrictive Covenants. Pursuant to
Section 8 of the Resolution Agreement, MCT and Rambo are subject to certain
restrictive covenants which expire on June 30, 2003. If before June 30, 2003,
(i) the Term of this Agreement shall expire by reason of Dexterity's failure to
request an extension of the initial term or the Term is terminated otherwise
than pursuant to Section 15(a) at the request of Dexterity or (ii) Dexterity
ceases doing business, Dexterity will thereupon release each of MCT and Rambo
from further observance of their covenants in Section 8 of the Resolution
Agreement.
13. Inspection. On reasonable notice to MCT, Dexterity will have
reasonable access to MCT's manufacturing facilities, manufacturing records and
personnel to examine MCT's manufacturing operations hereunder.
14. MCT's Rights in the Event of a Disposition by Dexterity of its
Business.
(a) If during the Term a Disposition of Dexterity's Business
shall occur, Dexterity will give notice thereof to MCT within three (3) days
after the consummation thereof. Dexterity will assign to the acquiror of
Dexterity's business in such Disposition transaction all Dexterity's rights, and
the acquiror will assume in writing all of Dexterity's obligations, under this
Agreement. Within thirty (30) days after receipt by MCT of Dexterity's notice of
such Disposition, MCT may, by notice to Dexterity and the acquiror (in the case
of such a Disposition other than a Disposition by Change of Control), accelerate
the expiration of the Term to such date, not less than thirty (30) days after
MCT shall give such notice, as MCT shall specify in such notice.
(b) Except for assignments pursuant to Paragraph (a) of this
Section, Dexterity will not assign its rights under this Agreement to purchase
Products from MCT without MCT's prior consent (which will not be unreasonably
withheld).
(c) "Disposition" in respect of Dexterity's business means (i)
the absolute transfer by Dexterity of property in exchange for consideration of
material economic value (which may include the satisfaction of liabilities of
Dexterity), without reserving to Dexterity any rights in or with respect to such
property other than the right to receive payment of money, property or
securities as the consideration for such transfer, by way of sale, lease,
license, merger or pursuant to judicial decree or order or other transfer by
operation of law or (ii) the occurrence of a Change of Control of Dexterity.
(d) A "Disposition of Dexterity's Business" means a
Disposition of (i) substantially all of Dexterity's business and assets or (ii)
substantially all of Dexterity's rights to manufacture and sell the PneumoSleeve
Product or the Protractor Product or both.
(e) A "Change of Control" of Dexterity shall occur if any
person or group (within the meaning of Rule 13d-5 under the Securities Exchange
Act of 1934 as in effect on the
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date hereof) shall come to own beneficially, directly or indirectly, voting
securities representing more than 50% of the total voting power of Dexterity.
15. Default.
(a) Upon the rejection (pursuant to Section 7) of any delivery
of Products supplied by MCT pursuant to this Agreement, Dexterity will give MCT
notice of such rejection, including the reason for such rejection. MCT will have
sixty (60) days from the giving of such notice to replace such rejected
Products. In the event that MCT fails to cure such defect or default by
replacing the rejected Products, Dexterity may terminate the Term by giving
notice thereof to MCT. Dexterity's entitlement to replacement and to terminate
the Term as provided for above in this Paragraph (a) shall be Dexterity's sole
and exclusive remedy for a breach relating to rejected Products.
(b) If MCT fails to perform any of its obligations under this
Agreement, other than the obligations referred to in Paragraph (a) of this
Section or in Section 8(c), Section 8(d) or Section 18, Dexterity may give
notice thereof to MCT, specifying such obligations and failure in reasonable
detail, whereupon MCT shall have sixty (60) days to cure such breach; provided
that if such cure cannot be effected within such sixty (60) day period and MCT
is using diligent efforts to effect such cure, the cure period shall be extended
for such period as may be necessary to effect such cure, not longer than sixty
(60) additional days. If MCT fails to cure such breach within such period,
Dexterity may terminate the Term of this Agreement by giving notice thereof to
MCT, which shall be Dexterity's sole and exclusive remedy for such breach.
(c) MCT acknowledges with respect to Section 8(c), Section
8(d) and Section 18, and Rambo acknowledges with respect to Section 18, that in
the event of breach or threatened breach of any of the covenants of such
Sections the remedies at law will be inadequate, and Dexterity will therefore be
entitled to injunctive and other equitable relief. However, Dexterity shall not
be limited by the foregoing and may proceed at law to obtain such relief as may
be available to it.
(d) If Dexterity fails to make timely (i) payment of any
amount due by it hereunder or (ii) delivery of forecasts pursuant to Section
5(d), and such failure shall have continued for fifteen (15) days after MCT has
given Dexterity notice thereof, describing such obligation and failure of
performance in reasonable detail, MCT may, by notice to Dexterity, terminate the
Term of this Agreement on such date (not earlier than the date of such notice)
as MCT may specify in such notice. In addition, from the date of MCT's first
notice referred to in this Paragraph, MCT may suspend its performance hereunder
until such default shall have been cured. The foregoing remedies shall not be
exclusive, and MCT shall be entitled to exercise all such other remedies for
breach by Dexterity of any of its covenants hereunder as may be available to MCT
pursuant to this Agreement or applicable law.
(e) If Dexterity fails to perform any of its obligations under
this Agreement, other than the obligations referred to in Paragraph (d) of this
Section or in Section 4, MCT may give notice thereof to Dexterity, specifying
such obligations and failure in reasonable detail, whereupon Dexterity shall
have sixty (60) days to cure such breach; provided that if such cure
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cannot be effected within such sixty (60) day period and Dexterity is using
diligent efforts to effect such cure, the cure period shall be extended for such
period as may be necessary to effect such cure, not longer than sixty (60)
additional days. If Dexterity fails to cures such breach within such period, MCT
may terminate the Term of this Agreement by giving notice thereof to Dexterity,
which shall be MCT's sole and exclusive remedy for such breach.
(f) Dexterity acknowledges that in the event of breach or
threatened breach of any of the covenants of Section 4 the remedies at law will
be inadequate, and MCT will therefore be entitled to injunctive and other
equitable relief. However, MCT shall not be limited by the foregoing and may
proceed at law to obtain such relief as may be available to it.
16. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN CONTAINED, NO PARTY SHALL BE LIABLE TO ANOTHER FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE
WITH RESPECT TO THE MANUFACTURE OR SALE OF PRODUCTS, INCLUDING ANY LOST REVENUE
OR PROFITS, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS
OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE OR ANY STATUTORY CAUSE OF ACTION AND REGARDLESS
OF WHETHER SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH
DAMAGES. For the purpose of clarity, it is acknowledged that the foregoing does
not apply to any breach of the covenants of (i) MCT pursuant to Section 8(c) or
(ii) Dexterity pursuant to Section 4.
17. Disclaimer of Warranties. Except for the express warranties set
forth in Section 10, MCT DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY
OTHER EXPRESS WARRANTIES OR ANY IMPLIED WARRANTIES OR REPRESENTATIONS REGARDING
THE PRODUCTS, INCLUDING ANY SUCH OTHER EXPRESS, OR ANY IMPLIED, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. Confidential Information.
(a) "Confidential Information" means all data, drawings and
other information, whether or not in written form, relating to (i) the process
for the commercial production of any Products or any similar device manufactured
for or by Dexterity, including the manufacture, storage, sterilization and
packaging of Products (the "Manufacturing Processes"), (ii) any Product or
similar device, (iii) the manufacture, marketing or use of any Product or any
similar device manufactured by or for Dexterity, (iv) any Manufacturing
Equipment, any patent or patent application in which Dexterity has any right or
property interest (as owner, licensee or otherwise), which (1) is now in the
possession of MCT or Rambo or hereafter (while MCT is performing any
manufacturing, development or other services in respect of any Products or
similar devices for any of Dexterity or its Successors or Assigns) shall be
acquired by MCT or Rambo in connection with MCT's performance of its
manufacturing and supply services
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pursuant to this Agreement and (2) has not been made available to the public
generally otherwise than in violation of this Agreement.
(b) MCT acknowledges that the Confidential Information is the
sole property of Dexterity.
(c) MCT will hold all Confidential Information in trust and
confidence, will not disclose any Confidential Information to any Person without
the prior consent of Dexterity and will not use or exploit any Confidential
Information for the benefit of any Person other than Dexterity, its Successors,
Assigns and Licensees. Any Confidential Information now or hereafter coming into
the possession of any employee of or contractor to MCT by reason of such
Person's association with MCT shall be deemed to be in the possession of MCT.
MCT will cause each such employee or contractor to execute and deliver to
Dexterity a confidentiality agreement on substantially the same terms as this
Section in form satisfactory to Dexterity.
19. Force Majeure. Should force majeure circumstances (including fire,
flood, earthquake, military actions, civil disturbance, acts of terrorism,
strike or other industrial action, laws, regulations and orders of governmental
authority and governmental actions) occur which prevent the timely fulfillment
of the obligations of any party hereunder, the time provided herein for the
performance of such obligations will be extended for a period equal to that
during which the circumstances of the force majeure shall persist.
20. Relationship. The relationship between Dexterity and MCT is that of
independent contractor, and nothing in this Agreement shall be deemed to create
a partnership, joint venture, principal-agent or employer-employee relationship
between such parties.
21. Notices. All notices, demands and other communications given by a
party hereunder or in connection herewith shall be in writing and shall be
deemed to have been given when delivered (which delivery may be by telefax or
other electronic transmission) to a party at the following address, or to such
other address as such party may hereafter specify by notice to the other
parties:
If to Dexterity, to:
Dexterity Surgical, Inc.
12961 Park Central, Suite 1300
San Antonia, TX 78216
Attention: President
Fax: ___________
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If to MCT or Rambo, to:
Medical Creative Technologies, Inc.
2950-N Advance Lane
Colmar, PA 18915
Attention: Robert D. Rambo, President
Fax: (215) 997-2371
22. Governing Law. This Agreement will be governed by the law of
Pennsylvania, excluding any conflicts or choice of law rule or principle that
might otherwise refer to the substantive law of another jurisdiction for the
construction, interpretation, validity or enforceability of this Agreement.
23. Parties in Interest. This Agreement will be binding upon and inure
to the benefit of the parties and their respective successors and assigns,
subject to the restrictions on assignment set forth in Section 14(b).
24. Entire Agreement. This Agreement, the Resolution Agreement and the
provisions of other Agreements expressly incorporated into the Resolution
Agreement pursuant to Section 2 thereof contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede any
other prior agreements or understandings between or among any of the parties
hereto relating to the subject matter hereof or otherwise to the manufacture or
supply of Products.
25. Amendments. No amendment or modification of or supplement to this
Agreement, or any consent or waiver of any party, will be effective as to a
party unless it is in writing and duly executed by such party.
26. Headings and Titles. The headings and titles of Sections and the
like in this Agreement are inserted for convenience of reference only, form no
part of this Agreement and shall not be considered for purposes of interpreting
or construing the provisions hereof.
27. Certain Principles of Construction. The following principles of
constructions shall apply to this Agreement:
(a) Unless otherwise expressly stated in connection therewith,
a reference in this Agreement to a "party" or "Section" refers to a party to, or
a Section of, this Agreement.
(b) The word "including" means "including without limitation."
28. Waiver. The failure of a party to enforce at any time any of the
provisions of this Agreement, to require at any time performance by another
party of any of the provisions hereof, or to resort to any remedy or to exercise
one or more remedies, shall in no way be construed to be a waiver of such
provisions, nor in any way affect the validity of this Agreement or any part
hereof, or the right of such party thereafter to enforce each and every such
provision.
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29. Severability. If any provision of this Agreement, or portion
thereof, shall be determined to be void or unenforceable by any court of
competent jurisdiction, then such determination shall not affect any other
provision of this Agreement, or portion thereof, all of which other provisions
and portions thereof shall remain in full force and effect. If any provision of
this Agreement, or portion thereof, is capable of two interpretations, one of
which would render the provision, or portion thereof, valid, then the provision,
or portion thereof, shall have the meaning which renders it valid.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DEXTERITY SURGICAL, INC.
By: /s/ Richard A. Woodfield
--------------------------------------
Richard A. Woodfield
President
MEDICAL CREATIVE TECHNOLOGIES, INC.
By: /s/ Robert D. Rambo
--------------------------------------
Robert D. Rambo
President
/s/ Robert D. Rambo
-----------------------------------------
Robert D. Rambo, individually