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