|
|
|
EXECUTION
COPY
|
|
|
|
Exhibit 10.20
PAYMENT AGREEMENT
BY AND BETWEEN
AFBS, INC.
AND
THERICS, LLC
June 30, 2005
|
|
PAYMENT AGREEMENT
This
PAYMENT AGREEMENT (the “Agreement” ),
effective as of June 30, 2005, by and between AFBS, INC., a
Virginia corporation (f/k/a “Therics, Inc.”) (“
AFBS ”), and THERICS, LLC, an Ohio limited
liability company (“ Therics ”), recites
and provides as follows:
RECITALS
WHEREAS,
AFBS and Therics have entered into an Intellectual Property
Transfer Agreement of even date herewith (the “ IP
Transfer Agreement ” ); and
WHEREAS,
Therics desires to make payments to AFBS in consideration for the
IP Transfer Agreement during the periods and under the terms and
conditions herein specified; and
WHEREAS,
AFBS is willing to accept such payments under the terms and
conditions, herein specified.
NOW,
THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it hereby is agreed that:
AGREEMENT
ARTICLE I
DEFINITIONS
When
used in this Agreement, the following terms shall have the meanings
specified:
|
|
|
|
|
|
“AFBS”
shall have the meaning provided in the Recitals of this
Agreement.
|
|
|
|
|
|
“Affiliate”
shall mean any Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified. The term
“control” (including the terms
“controlling,” “controlled by” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of at least 50% of the voting securities, by contract or
otherwise.
|
|
|
|
|
|
“End
User” shall mean the ultimate consumer of products and/or
services identified in this Agreement, e.g. the hospital, trauma
center, doctor or the like, but not including patients.
|
|
|
1.4.
|
IP Transfer
Agreement .
|
|
|
|
“IP
Transfer Agreement” shall have the meaning set forth in the
Recitals of this Agreement.
|
|
|
|
|
|
“Improvement”
shall mean any enhancement or modification of the Therics
Technology that is developed by or for, invented or acquired by, or
comes under the control of Therics.
|
|
|
|
|
1.6.
|
Intellectual
Property .
|
|
|
|
“Intellectual
Property” shall have the meaning set forth in the IP Transfer
Agreement.
|
|
|
|
|
|
“Net
Sales” shall mean, the gross amount collected by Therics for
sales of any Therics-Derived Product, or Therics-Derived Process
less the following:
(a)
customary trade, quantity, or cash discounts and/or rebates to the
extent actually allowed and taken after collection;
(b)
amounts repaid or credited by reason of rejection, refund or
return;
(c)
any taxes or other governmental charges levied on the production,
sale, transportation, delivery, or use of any such Therics-Derived
Product or Therics-Derived Process which is paid by or on behalf of
Therics or any Subsidiary or any of their respective licensees;
and
(d)
freight allowances.
No
deductions shall be made (i) for commissions paid to individuals
whether they be with independent distributors or stocking
distributors or regularly employed by and on the payroll of
Therics, its Affiliates (other than a RRT Entity), Subsidiaries or
licensees, or (ii) for cost of collections. Net Sales shall occur
on the date of collection by Therics.
Non-monetary
consideration shall not be accepted by Therics or any
Subsidiary or any of their respective licensees for any
Therics-Derived Products or Therics-Derived Processes without the
prior written consent of the AFBS.
|
|
|
|
|
|
“Person”
shall mean and any individual, proprietorship, trust, estate,
partnership, joint venture, association, company, corporation,
limited liability company or other entity.
|
|
|
1.9.
|
Private
Label Distributor
|
|
|
|
“Private
Label Distributor” shall mean an entity (other than an RRT
Entity) that distributes Therics-Derived Products or
Therics-Derived Process through its own distribution network
pursuant to a distribution agreement between Therics and that
entity.
|
|
|
|
|
1.10.
|
Private
Label Sales .
|
|
|
|
“Private
Label Sales” shall mean the Net Sales collected by Therics
which are generated from sales to a Private Label Distributor other
than an RRT Entity. Private Label Sales shall occur on the date of
collection by Therics.
Non-monetary
consideration shall not be accepted for any Therics-Derived
Products or Therics-Derived Processes without the prior written
consent of AFBS.
|
|
|
|
|
|
“RRT”
shall mean Randall R. Theken, a resident of the State of
Ohio.
|
|
|
|
|
|
“RRT
Entity” shall mean RRT, Theken Spine, LLC, an Ohio limited
liability company, Theken Orthopaedic, Inc., an Ohio corporation,
Theken Disc LLC, an Ohio limited liability company, and any other
Affiliate of RRT.
|
|
|
|
|
|
“Subsidiary”
shall mean any corporation or other entity with respect to which
Therics has the direct or indirect right to vote shares
representing 50% or more of the votes eligible to be cast in the
election of directors or managers of such entity.
|
|
|
|
|
|
“Therics”
shall have the meaning set forth in the Recitals of this
Agreement.
|
|
|
|
|
1.15.
|
Therics-Derived Process .
|
|
|
|
“Therics-Derived
Process” shall mean any process of Therics containing,
comprising or derived from the Therics Technology in any form
alone, or in combination with, one or more other process steps of
Therics, and any Improvements thereto, but not including any
process of making a Therics-Derived Product.
|
|
|
|
|
1.16.
|
Therics-Derived Product .
|
|
|
|
“Therics-Derived
Product” shall mean any Therics product containing,
comprising or derived from the Therics Technology in any form
alone, or in combination with, one or more other products of
Therics, and any Improvements thereto.
|
|
|
1.17.
|
Therics
Technology .
|
|
|
|
“Therics
Technology” shall mean the inventions, patents, patent
applicatio
|
|
