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As amended July 16, 2001

Appeals from the United States District Court for the Western District of Texas, Austin Division

Doug Clark is the sole shareholder of two corporations through which he has conducted a business selling medical devices, Oregon Cardio-Devices, Inc. (“OCD”) and Northwest Cardio-Devices, Inc. (“NCD”) (Doug Clark, OCD and NCD will be collectively referred to in this opinion as “Clark” unless a distinction between them is necessary). In 1996, Clark entered into two agreements with Sulzer Carbomedics (“Carbomedics”) to sell Carbomedics’s heart valves. One agreement covered Oregon and a small part of the state of Washington (“Oregon contract”), and the other covered other parts of the state of Washington (“Washington contract”).*fn2 For a term of four years, those contracts gave Clark the exclusive right to sell Carbomedics’s heart valves in the covered regions, and made Clark exclusive to Carbomedics, subject to termination provisions in the two contracts. That right of termination is “absolute,” and provides that a “party availing itself of such right will not be liable to the other party for any loss, damage, indemnity, cost, expense, or thing of any kind or nature whatsoever, and any and all claims of such liability and the right to make such claims are . . . expressly waived.” The contracts further provide: “In no event will either party be liable to the other for incidental, special or consequential damages, including but not limited to loss of anticipated revenues or profits or good will, for the [lawful]*fn3 termination or cancellation of this Agreement for any reason whatsoever.” The contracts also contain no-compete clauses. For one year after his relationship with Carbomedics ended, for any reason, the contracts prohibit Clark and his subrepresentatives from contacting former customers for “purposes of selling, offering for sale or promoting the sale” of any competing heart valves.

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