Exhibit 10.1





Exhibit 10.1




TERMINATION, AMENDMENT AND BUY-BACK AGREEMENT TO 

DISTRIBUTOR AGREEMENT 




THIS TERMINATION, AMENDMENT AND BUY-BACK AGREEMENT TO DISTRIBUTOR AGREEMENT (“Termination
Agreement”) is made and entered into as of this 7th day of October, 2010, by and among Aesculap,
Inc. (“Distributor”), MISONIX, INC. (“Misonix”) and Fibra-Sonics (NY) Inc., a wholly-owned
subsidiary of Misonix and successor in interest to Fibra Sonics, Inc. (“F-S”).



BACKGROUND




WHEREAS, Distributor and F-S (Misonix, in the case of the Third and Fourth Amendments
described below) entered into a Distributor Agreement dated November 1999, as amended by the First
Amendment to Distributor Agreement dated June 30, 2003, the Second Amendment to Distributor
Agreement dated June 22, 2005, the Third Amendment to Distributor Agreement dated November 16,
2006, and the Fourth Amendment to Sonastar Distributor Agreement dated September 22, 2008 (as
amended, the “Distributor Agreement”), pursuant to which Distributor was a distributor for F-S of
the Products as set forth in the Distributor Agreement;




WHEREAS, the Distributor Agreement expired in accordance with its terms on June 30, 2009;



WHEREAS, pursuant to Section 9f of the Distributor Agreement, F-S is obligated to continue to
supply Distributor with accessories;



WHEREAS, Misonix has to date been fulfilling the obligations of F-S under Section 9f of the
Distributor Agreement;



WHEREAS, the parties desire to terminate Misonix’s obligations under Section 9f of the
Distributor Agreement and provide for Misonix to buy back Product from Distributor, assume
responsibility of servicing the Products sold by Distributor to Sonastar Customers (as defined
below) and purchase Distributor’s rights to sell procedure packs to Sonastar Customers as set forth
in this Termination Agreement; and



WHEREAS, the foregoing also requires that certain provisions of the Distributor Agreement
stated to survive the termination of the Distributor Agreement no longer shall survive such
termination or shall be amended.




NOW THEREFORE, intending to be legally bound hereby, the parties agree as follows:



AGREEMENT




1. Background Provisions; Defined Terms. The Background paragraphs set forth above
are hereby incorporated in this Termination Agreement as if fully set forth herein. Any
capitalized terms not defined in this Termination Agreement shall have the same meanings ascribed
to such terms in the Distributor Agreement.


 


 









 





2. Termination of Distributor Agreement. Except as otherwise set forth on Exhibit 5,
the parties hereby mutually agree to terminate, as of October 15, 2010 (the “Termination Date”) (i)
Misonix’s obligations under Section 9f of the Distributor Agreement and (ii) Distributor’s rights
to sell procedure packs (the “Sale Rights”) to the Sonastar Customers. In connection with the
termination of Misonix’s obligations under Section 9f of the Distributor Agreement, and
notwithstanding anything to the contrary in the Distributor Agreement, the respective obligations
of Distributor, Misonix and F-S and terms of the buyback of Products by Misonix from Distributor
shall be in accordance with the relevant sections below. The parties agree and acknowledge that as
of the date hereof, no party is in breach of the Distributor Agreement.



3. Current Business. On the Termination Date, in consideration of the purchase and
sale of (i) Distributor’s current service contracts for the Products (“Sonastar Contracts”),
customer list and customers currently evaluating the Products all with respect to the sale and
servicing of the Products (the “Customer List”) and (ii) the Sale Rights, Misonix shall pay
Distributor $800,000 (the “Current Business Amount”) by wire transfer of immediately available
funds and pursuant to written wire transfer instructions delivered by Distributor to Misonix.
Misonix shall assume all rights, responsibilities and obligations pursuant to and under the (i)
Sonastar Contracts and Customer List and (ii) the Sale Rights, including without limitation, the
sale of accessory Products and servicing and training of the Products to the customers with
Sonastar Contracts (the “Sonastar Customers”). A list of the (i) Sonastar Contracts, (ii) the
Customer List and (iii) sales history setting forth the location of all Sonastar systems and the
prices paid by each customer for disposable Products is attached as Exhibit 1 hereto. Distributor
will provide Misonix with true and complete copies of all Sonastar Contracts promptly after the
execution of this Termination Agreement.



4. Transition. Misonix and Distributor agree to institute a transition period
beginning at the conclusion of the Inspection (as defined below) and ending on or about October 15,
2010 during which time Distributor and Misonix shall (i) send a letter or letters to the Sonastar
Customers notifying them of the assignment of the obligations under the Sonastar Contracts over to
Misonix and (ii) to the extent requested by Misonix, arrange introductory meetings between the
Sonastar Customers and the applicable sales representative of Misonix. The text of each such
letter shall be mutually agreed upon by the parties.



5. Terms of Purchase of Products by Misonix. Misonix agrees to repurchase from
Distributor the current inventory of (i) new Products held by Distributor at the price Distributor
paid for such Products and (ii) used Products used by Distributor for demonstration and/or loaner
purposes at the prices equal to Distributor’s book-value as of July 31, 2010 for such Products. A
current inventory listing of new and used Products, including buyback prices as defined above
(collectively, the “Buyback Amount”), is attached as Exhibit 2 hereunder (Exhibit 2 shall consist
of a 2a, 2b and 2c and Exhibit 2a shall list the new capital Products, Exhibit 2b shall list the
used capital Products, and Exhibit 2c shall list the new disposable Products). Misonix shall pay
Distributor the Buyback Amount in four (4) equal consecutive quarterly installments due no later
than ten (10) days after the close of each calendar quarter with the first such payment due no
later than January 10, 2011. Each installment payment shall be paid by wire transfer of immediately
available funds pursuant to the wire transfer instructions delivered pursuant to Section 3 above.
In addition, in the event Distributor has other used Products in its inventory, Misonix shall have
the option to purchase such used Products at a mutually agreed upon price, which shall be attached
as Exhibit 3 and such purchase price shall be included in the Buyback Amount. Prices and intent to
purchase the Products on Exhibit 3 must be agreed by November 19, 2010.


 


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6. Inspection of Products. On or about October 6, 2010, Misonix may inspect the new
Products at Distributor’s Hazelwood, Missouri location for the purposes of confirming that such
Products exist as described (the “Inspection”). Misonix acknowledges and agrees that the Products
listed on Exhibit 2 will not be finalized until the Termination Date, as Distributor will be
accepting purchase orders from the Sonastar Customers and potential new customers up to the
Termination Date. To the extent Product is sold between the date of this Agreement and the
Termination Date, such Product and its corresponding purchase price shall be removed from Exhibit 2
and the Buyback Amount shall be adjusted accordingly.




7. Distributor’s Representations and Warranties.



Distributor represents and warrants to Misonix that each statement in this Section 7 is true
and correct as of the date hereof and as of the Termination Date.



(a) Organization and Good Standing. Distributor is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of California, and has all
requisite power to own, lease and operate its properties and to carry on its business as now being
conducted.



(b) Authority and Enforceability. Distributor has the requisite power and authority
to enter into this Termination Agreement, to consummate the transactions contemplated hereby and to
perform its obligations hereunder. The execution and delivery of this Termination Agreement, the
consummation of the transactions contemplated hereby and the performance of the obligations
hereunder have been duly authorized by all necessary action on the part of Distributor and no other
consent, action or proceedings on the part of Distributor to authorize this Termination Agreement
or to consummate the transactions contemplated hereby are required. This Termination Agreement has
been duly executed and delivered by Distributor and, assuming due authorization, execution and
delivery by Misonix and F-S, constitutes the valid and binding obligation of Distributor,
enforceable against it in accordance with its terms, except as such enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors’ rights generally, and (ii) the availability of injunctive relief and other
equitable remedies.




(c) No Conflicts; Consents.




(i) The execution and delivery of this Termination Agreement by Distributor does not,
and the performance by Distributor of its obligations hereunder and the consummation by
Distributor of the transactions contemplated hereby (with or without the giving of notice or
lapse of time, or both) will not, (i) violate the provisions of any of the charter documents
of Distributor, (ii) violate or constitute a default, an event of default or an event
creating rights of acceleration, termination, cancellation, imposition of additional
obligations or loss of rights, or require a consent to assignment, under any contract (A) to
which Distributor is a party, (B) of which Distributor is a beneficiary or (C) by which
Distributor or any of its assets are bound, (iii) violate or conflict with any law,
authorization or order applicable to Distributor, or give any governmental entity or other
person the right to challenge any of the transactions contemplated by this Termination
Agreement or to exercise any remedy, obtain any relief under or revoke or otherwise modify
any rights held under, any such law, authorization or order, or (iv) result in the creation
of any liens upon any of the assets owned or used by Distributor.


 


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(ii) No authorization or order of, registration, declaration or filing with, or notice
to, any governmental entity or other person is required by or with respect to Distributor in
connection with the execution and delivery of this Termination Agreement and the
transactions contemplated by this Termination Agreement.



(d) Title to Products. Distributor has good and transferable title to the Products,
free and clear of any and all liens.




(e) Intentionally Omitted.



(f) Absence of Certain Changes or Events. (i) No Sonastar Contract has been modified,
(ii) no rights under any Sonastar Contract have been waived or accelerated and (iii) no Sonastar
Contract has been terminated or cancelled.




(g) Litigation.




(i) There is no action, suit or proceeding, claim, arbitration, litigation or
investigation pending or, to the knowledge of Distributor, threatened against or affecting
Distributor, that challenges or seeks to prevent, enjoin or otherwise delay the transactions
contemplated by this Termination Agreement.




(ii) There is no unsatisfied judgment, penalty or award, in each case related to the
Sonastar Contracts or the Products, against or affecting Distributor or any of its assets,
properties or rights.




(h) Insurance.




(i) Distributor has maintained in effect, and will maintain in effect for eighteen (18)
months, adequate insurance coverage for Distributor in amounts and against all risks
normally insured by persons possessing similar assets or operating similar businesses in
similar locations and which is sufficient for compliance with all laws and Sonastar
Contracts to which Distributor is a party or by which Distributor is bound in connection
with the Sonastar Contracts and the Products. All such coverage is in full force and
effect, all premiums with respect thereto have been paid to the extent due, and no notice of
cancellation, termination or non renewal has been received by Distributor with respect to
any such policy. There are no pending claims under any of such coverage with respect to the
business as to which coverage has been questioned, denied or disputed by the insurer or in
respect of which the insurer has reserved its rights.




(ii) All insurable claims with respect to the business have been tendered to the
insurance carriers and no claims are being handled under a reservation of rights letter.




(iii) To the knowledge of Distributor, there are no historical gaps in coverage with
respect to the Sonastar Contracts.




(i) Product Warranty.




(i) There are no warranties (express or implied) outstanding with respect to any
Products currently or formerly distributed or any services rendered, by Distributor, beyond
that set forth in the standard conditions of sale or service, copies of which are included
in Exhibit 1.


 


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(ii) Each Product distributed by Distributor has been in conformity with (1) to the
best knowledge of Distributor after reasonable inquiry, all applicable contractual
commitments and, (2) to the commercially reasonable knowledge of Distributor, warranties in
all respects.



(j) Brokers or Finders. Distributor represents that no agent, broker, investment
banker or other firm or person is or will be entitled to any broker’s or finder’s fee or any other
commission or similar fee in connection with any of the transactions contemplated by this
Termination Agreement.



(k) Completeness of Disclosures. No representation or warranty by Distributor in this
Termination Agreement, and no statement made by Distributor in any certificate or other document
furnished or to be furnished to Misonix pursuant hereto, contains any untrue statement of a
material fact or omits to state a material fact required to be stated herein or therein or
necessary to make any statement herein or therein not misleading. Except as specifically set forth
in this Termination Agreement, there are no facts or circumstances of which Distributor is aware
that could be expected to have, individually or in the aggregate, a material adverse effect on the
transactions contemplated by this Termination Agreement.




8. Misonix Representations and Warranties.



Misonix represents and warrants to Distributor that each statement contained in this Section 8
is true and correct as of the date hereof and as of the Termination Date.



(a) Organization and Good Standing. Each of Misonix and F-S is a corporation duly
incorporated, validly existing and in good standing under the laws of the State of New York and has
all requisite power to own, lease and operate its properties and to carry on its business as now
being conducted.



(b) Authority and Enforceability. Each of Misonix and F-S has the requisite power and
authority to enter into this Termination Agreement, to consummate the transactions contemplated
hereby and to perform its obligations hereunder. The execution and delivery of this Termination
Agreement, the consummation of the transactions contemplated hereby and the performance of the
obligations hereunder have been duly authorized by all necessary action on the part of Misonix and
F-S and no other consent, action or proceedings on the part of Misonix or F-S to authorize this
Termination Agreement or to consummate the transactions contemplated hereby are required. This
Termination Agreement has been duly executed and delivered by Misonix and F-S and, assuming due
authorization, execution and delivery by Distributor constitutes the valid and binding obligations
of Misonix and F-S, enforceable against it in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors’ rights generally, and (b) the availability of
injunctive relief and other equitable remedies.


 


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(c) No Conflicts; Consents.




(i) The execution and delivery of this Termination Agreement by Misonix and F-S does
not, and the performance by Misonix and F-S of their obligations hereunder and the
consummation by Misonix and F-S of the transactions contemplated hereby (with or without the
giving of notice or lapse of time, or both) will not, (i) violate the provisions of any of
the charter documents of Misonix or F-S, (ii) violate or constitute a default, an event of
default or
an event creating rights of acceleration, termination, cancellation, imposition of
additional obligations or loss of rights, or require a consent to assignment, under any
contract (A) to which Misonix or F-S is a party, (B) of which either Misonix or F-S is a
beneficiary or (C) by which Misonix or F-S or any of their assets are bound, (iii) violate
or conflict with any law, authorization or order applicable to Misonix or F-S, or give any
governmental entity or other person the right to challenge any of the transactions
contemplated by this Termination Agreement or to exercise any remedy, obtain any relief
under or revoke or otherwise modify any rights held under, any such law, authorization or
order, or (iv) result in the creation of any liens upon any of the assets owned or used by
Misonix or F-S.




(ii) No authorization or order of, registration, declaration or filing with, or notice
to, any governmental entity or other person is required by or with respect to Misonix or F-S
in connection with the execution and delivery of this Termination Agreement and the
consummation of the transactions contemplated by this Termination Agreement.



(d) Litigation. There is no action, suit or proceeding, claim, litigation or
investigation pending, or to the knowledge of Misonix or F-S threatened against or affecting
Misonix or F-S, that challenges or seeks to prevent, enjoin or otherwise delay the transactions
contemplated by this Termination Agreement.



(e) Insurance. Misonix and F-S (through Misonix’s coverage) have each maintained in
effect, and will maintain in effect for eighteen (18) months, adequate insurance coverage for
Misonix and F-S in amounts and against all risks normally insured by persons possessing similar
assets or operating similar businesses in similar locations and which is sufficient for compliance
with all laws, their respective businesses, and in the case of Misonix, the Sonastar Contracts and
Sales Rights which Misonix is purchasing. All such coverage is in full force and effect, all
premiums with respect thereto have been paid to the extent due, and no notice of cancellation,
termination or non renewal has been received by Misonix or F-S with respect to any such policy.
There are no pending claims under any of such coverage with respect to the business as to which
coverage has been questioned, denied or disputed by the insurer or in respect of which the insurer
has reserved its rights.



(f) Brokers or Finders. Misonix and F-S represent, as to itself and its affiliates,
that no agent, broker, investment banker or other firm or person is or will be entitled to any
broker’s or finder’s fee or any other commission or similar fee in connection with any of the
transactions contemplated by this Termination Agreement.



(g) Completeness of Disclosures. No representation or warranty by Misonix or F-S in
this Termination Agreement, and no statement made by Misonix or F-S in any certificate or other
document furnished or to be furnished to Distributor pursuant hereto, contains any untrue statement
of a material fact or omits to state a material fact required to be stated herein or therein or
necessary to make any statement herein or therein not misleading. Except as specifically set forth
in this Termination Agreement, there are no facts or circumstances of which Misonix or F-S is aware
that could be expected to have, individually or in the aggregate, a material adverse effect on the
transactions contemplated by this Termination Agreement.


 


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9. No Other Warranty. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7 ABOVE,
DISTRIBUTOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY
STATUTE OR OTHERWISE, AND DISTRIBUTOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF
QUALITY, WARRANTY OF MERCHANTABILITY, OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL DISTRIBUTOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES,
INCLUDING LOST PROFITS, SUSTAINED OR INCURRED IN CONNECTION WITH THE PRODUCT(S) OR CAUSED BY
DEFECTS IN PRODUCT(S), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE,
AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR UNFORESEEABLE.



10. Product Labels. Misonix agrees that it will not sell or make available for sale
any Products with Distributor’s name or label on such Products, nor shall Misonix otherwise sell or
make available for sale any Products under Distributor’s name. Within 30 days after the
Termination Date, Misonix shall (i) affix appropriate labels to all generator Products, including
without limitation, the generator Products at customer locations for customers with Sonastar
Contracts and/or potential customers who may be evaluating the Products and (ii) remove any labels
on the generator Products wherever located that have Distributor’s name or contact information or
in any way reference Distributor, such that the customers may clearly identify that Misonix is to
be contacted for any product ordering, questions or repair needs. Distributor agrees to cooperate
with Misonix at Misonix’s reasonable request in making the label changes set forth above, and each
party shall be responsible for its own costs with respect thereto.



11. Promissory Note. On the Termination Date, in addition to the payment of the
Current Business Amount to Distributor, Misonix shall issue a Promissory Note in the form as set
forth on Exhibit 4 attached hereto in favor of Distributor for the full Buyback Amount, to be
payable to Distributor by wire transfer in accordance with Section 5 above.



12. Confidentiality. Neither party shall disclose the terms of this Termination
Agreement to any other person or entity outside its organization and affiliates that have a need to
know such terms for purposes of fulfilling such party’s obligations hereunder. For purposes of
this provision, Misonix and F-S acknowledge and agree that neither shall disclose the existence or
subject matter of this Termination Agreement with its product distributors and sales force or
customers and potential customers until such time that Distributor sends its notification letter to
the Sonastar Customers as described in Section 4 above. No party shall make any public
announcement concerning the terms of this Termination Agreement unless such party receives prior
written approval by the other parties. Notwithstanding anything to the contrary contained in the
foregoing, Distributor acknowledges and agrees that after the Termination Date Misonix will (i)
have to file a Current Report on Form 8-K with the U.S. Securities and Exchange Commission
reporting the consummation of the transactions contemplated by this Termination Agreement which
Current Report will have a copy of this Termination Agreement attached as an exhibit and (ii) issue
a press release, which press release will be subject to Distributor’s prior approval (such approval
not to be unreasonably withheld).




13. Restrictive Covenants.



(a) Distributor covenants that, commencing on the Termination Date and ending on the eighteen
(18) month anniversary of the Termination Date (the “Noncompetition Period”), and provided that
Misonix has made all payments due and owing under this Agreement on their respective due dates,
Distributor shall not, in the Territory (as defined in the Distributor Agreement), engage in, or
permit Distributor’s name to be used in connection with, (x) the development, selling, repair,
servicing or testing new or used ultrasonic surgical aspiration equipment including consumable
accessories used in conjunction therewith, and (y) performing training for the use,
service, repair and maintenance for the equipment set forth in (x) above (collectively, the
“Restricted Business”).


 


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(b) Distributor covenants that during the Noncompetition Period, and provided that Misonix has
made all payments due and owing under this Agreement on their respective due dates, it will not (i)
call on or solicit any person for purposes of business relating to the ultrasonic surgical
aspiration business who or which is, at that time, or has been within one year prior thereto, a
customer of Distributor ; or (ii) solicit the employment of or hire any person who at the time of
such solicitation or hiring or who within one year prior thereto, is or was employed by, or a
consultant of, Misonix on a full or part-time basis; provided, however, that the foregoing
shall not prohibit Distributor from soliciting any such individual solely pursuant to a general
advertisement for employment. Misonix and F-S each covenants that during the Noncompetition
Period, it will not solicit the employment of or hire any person who at the time of such
solicitation or hiring or who within one year prior thereto, is or was employed by, or a consultant
of, Distributor on a full or part-time basis; provided, however, that the foregoing shall
not prohibit Misonix or F-S from soliciting any such individual solely pursuant to a general
advertisement for employment. Distributor, Misonix and F-S each covenant that during the
Noncompetition Period it will not make statements or representations, or otherwise communicate,
directly or indirectly, in writing, orally or otherwise, or take any action that may, directly or
indirectly, disparage or be damaging to the other parties or any of their respective officers,
directors, employees, advisors, businesses, or reputation.



(c) The parties each acknowledge that the restrictions contained in this Section 13 are
reasonable and necessary to protect the legitimate interests of the other parties and constitute a
material inducement to the other parties to enter into this Termination Agreement and consummate
the transactions contemplated by this Termination Agreement. The parties acknowledge that any
violation of this Section 13 may result in irreparable injury to the other parties and agrees that
the affected party shall be entitled to seek preliminary and permanent injunctive relief as well as
an equitable accounting of all earnings, profits and other benefits arising from any violation of
this Section 13, which rights shall be cumulative and in addition to any other rights or remedies
to which such party may be entitled. Without limiting the generality of the foregoing, the
Noncompetition Period shall be extended for an additional period equal to any period during which a
party is in breach of its obligations under this Section 13.



(d) In the event that any covenant contained in this Section 13 should ever be adjudicated to
exceed the time, geographic, product or service or other limitations permitted by applicable law in
any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant
shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service
or other limitations permitted by applicable law. The covenants contained in this Section 13 and
each provision thereof are severable and distinct covenants and provisions. The invalidity or
unenforceability of any such covenant or provision as written shall not invalidate or render
unenforceable the remaining covenants or provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or
provision in any other jurisdiction.



14. Surviving Terms of Distributor Agreement. Notwithstanding anything to the
contrary contained in Section 9f of the Distributor Agreement, the following provisions of the
Distributor Agreement shall survive the expiration thereof for the time periods set forth below, if
any: (i) Section 6; (ii) Section 8e for (1) year from the Termination Date; (iii) Section 10 except
that clause d of Section 10 is deleted and superseded by the provisions of this Termination
Agreement; (iv) Section 12 for one (1) year from the Termination Date; (v) Section 11a; and (vi)
Section 13.


 


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15. Indemnification. Subject to the other parties’ compliance with their obligations
hereunder, Misonix and Distributor each agree to indemnify, defend and hold harmless the other from
and against any assessments, liabilities, losses, damages, costs and expenses (including without
limitation interest, penalties and disbursements, but, excluding attorneys fees, other than
reasonable fees of attorneys retained by the indemnified party to assert such defense) arising out
of or relating to any demands, claims, actions, causes of action or proceedings asserted by a third
party which results from or arises out of a material breach by the other party of the terms and
conditions of this Termination Agreement or any misrepresentation or material breach of the
representations made by such party in this Termination Agreement.




16. Miscellaneous.



(a) Notices. Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing and shall be deemed
given (a) on the date established by the sender as having been delivered personally, (b) on the
date delivered by a private courier as established by the sender by evidence obtained from the
courier, (c) on the date sent by facsimile, with confirmation of transmission, if sent during
normal business hours of the recipient, if not, then on the next business day, or (d) on the fifth
day after the date mailed, by certified or registered mail, return receipt requested, postage
prepaid. In the event such communications are delivered by facsimile, such communication shall
also be followed by a mailed copy. Such communications, to be valid, must be addressed as follows:




If to Distributor, to:




Aesculap, Inc.

3773 Corporate Parkway

Center Valley, PA 18034

Attn: VP Marketing

Facsimile:




With a required copy to (which shall not constitute notice to Distributor):




Scarlett Spence, Esq.

Aesculap, Inc.

3773 Corporate Parkway

Center Valley, PA 18034

Facsimile: 610-849-5211




If to Misonix or F-S, to:




MISONIX, INC.

1938 New Highway

Farmingdale, NY 11735

Attn: Michael A. McManus, Jr.

Facsimile: 631-694-5740


 


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With a required copy to (which shall not constitute notice to Misonix or F-S):




Wilk Auslander LLP

675 Third Avenue

New York, NY 10017

Attn: Joel I. Frank, Esq.

Facsimile: 212-752-6380



or to such other address or to the attention of such person or persons as the recipient party has
specified by prior written notice to the sending party (or in the case of counsel, to such other
readily ascertainable business address as such counsel may hereafter maintain). If more than one
method for sending notice as set forth above is used, the earliest notice date established as set
forth above shall control.




(b) Amendments and Waivers.




(i) Any provision of this Termination Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Termination Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.




(ii) No failure or delay by any party in exercising any right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power or
privilege.




(iii) To the maximum extent permitted by applicable law, (i) no waiver that may be
given by a party shall be applicable except in the specific instance for which it was given
and (ii) no notice to or demand on one party shall be deemed to be a waiver of any
obligation of such party or the right of the party giving such notice or demand to take
further action without notice or demand.



(c) Expenses. Each party shall bear its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby, including all legal, accounting, financial
advisory, consulting and all other fees and expenses of third parties, whether or not the
transactions contemplated by this Termination Agreement are consummated.



(d) Successors and Assigns. This Termination Agreement may not be assigned by any
party hereto without the prior written consent of the other party(ies). Subject to the foregoing,
all of the terms and provisions of this Termination Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted assigns.



(e) Governing Law. This Termination Agreement and the Exhibits hereto shall be
governed by and interpreted and enforced in accordance with the laws of the State of New York,
without giving effect to any choice of law or conflict of laws rules or provisions (whether of the
State of New York or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.


 


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(f) Consent to Jurisdiction. Each party irrevocably submits to the exclusive
jurisdiction of (a) the State of New York, and (b) the federal court for the Southern District of
the State of New York, for the purposes of any action arising out of this Termination Agreement or
any transaction contemplated by this Termination Agreement. Each party agrees to commence any such
action either in the federal court for the Southern District of the State of New York, or if
such action may not be brought in such court for jurisdictional reasons, in the state courts of the
State of New York. Each party further agrees that service of any process, summons, notice or
document by U.S. registered mail to such party’s respective address set forth above shall be
effective service of process for any action in the State of New York with respect to any matters to
which it has submitted to jurisdiction in this Section 15(f). Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action arising out of this
Termination Agreement or the transactions contemplated by this Termination Agreement in the State
of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action brought in any such court has been brought in an
inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS TERMINATION
AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.



(g) Counterparts. This Termination Agreement may be signed in any number of
counterparts by the parties hereto, all of which taken together shall constitute one and the same
instrument. This Termination Agreement, to the extent signed and delivered by means of a facsimile
machine or as an attachment to an electronic mail message in “pdf” or similar format, shall be
treated in all manner and respects as an original agreement or instrument and shall be considered
to have the same binding legal effect as if it were the original signed version thereof delivered
in person. No party to this Termination Agreement shall raise the use of a facsimile machine or
electronic mail attachment in “pdf” or similar format to deliver a signature or the fact that any
signature was transmitted or communicated through the use of a facsimile machine or as an
attachment to an electronic mail message in “pdf” or similar format as a defense to the formation
of a contract and each such party forever waives any such defense. A facsimile signature or
electronically scanned copy of a signature shall constitute and shall be deemed to be sufficient
evidence of a party’s execution of this Agreement, without necessity of further proof. Each such
copy shall be deemed an original, and it shall not be necessary in making proof of this Termination
Agreement to produce or account for more than one such counterpart.



(h) Third Party Beneficiaries. No provision of this Termination Agreement is intended
to confer upon any person other than the parties hereto any rights or remedies hereunder.



(i) Entire Agreement. This Termination Agreement and the other documents, instruments
and agreements specifically referred to herein or therein or delivered pursuant hereto or thereto
set forth the entire understanding of the parties hereto with respect to the transactions
contemplated by this Termination Agreement. All Exhibits referred to herein are intended to be and
hereby are specifically made a part of this Agreement. Except as otherwise provided herein, any
and all previous agreements and understandings between or among the parties regarding the subject
matter hereof, whether written or oral, are superseded by this Termination Agreement.



(j) Captions. All captions contained in this Termination Agreement are for
convenience of reference only, do not form a part of this Termination Agreement and shall not
affect in any way the meaning or interpretation of this Termination Agreement.



(k) Severability. Subject to Section 12(d), any provision of this Termination
Agreement which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering unenforceable the
remaining
provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.


 


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(l) Further Assurances. Each of the parties agrees that it will from time to time on
or after the Termination Date promptly do, execute, acknowledge and deliver and will cause to be
done, executed, acknowledged and delivered, all such further acts, deeds, certificates, bills of
sale, assignments, transfers, conveyances, powers of attorney and other documents as may be
reasonably requested by any of the other parties for better assigning, transferring, granting,
conveying and conferring right, title and interest to Misonix of the Sonastar Contracts and
Customer List, the Products and the Sale Rights.



IN WITNESS WHEREOF, the parties have executed and delivered this Termination Agreement as of
the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	Aesculap, Inc.	 	 	 	MISONIX, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Yale Graves
 

Yale Graves

Vice President, Marketing
	 	 	 	By:
	 	/s/ Michael A. McManus
 

Name: Michael A. McManus, Jr.

Title:   President & CEO
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Fibra-Sonics (NY) Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Steven Burdorf
	 	 	 	By:
	 	/s/ Michael A. McManus	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Steven Burdorf

Vice President, Operations
	 	 	 	 	 	Name: Michael A. McManus, Jr.

Title:   President	 	 





 


12









 





Exhibit 1




Distributor’s Sonastar Contracts, Customer List and Sales History



 


13









 







Exhibit 2




Products and Buyback Amount



 


14









 







Exhibit 3




Additional Optional Products and Buyback Amount



 


15









 







Exhibit 4




Form of Promissory Note




To be Attached



 


16









 







Exhibit 5




Exclusions to Section 2




 


17