Common use of Amendment to Section 8.1 Clause in Contracts

Amendment to Section 8.1. Section 8.1 of the Distribution Agreement is hereby deleted in its entirety and replaced with the following provision: “COMPANY shall sell the Products to DISTRIBUTOR at the prices set forth in Schedule 1. Payments on purchase orders shall be due at the end of the month immediately following the month of shipment of the Products to DISTRIBUTOR. Payment shall be made by wire transfer in U.S. funds to an account designated in writing by COMPANY. All shipments of Products shall be billed to DISTRIBUTOR at the price in effect for each Product in accordance with this Section 8.1 and Schedule 1, on the date of DISTRIBUTOR’s purchase order for such Products. COMPANY shall have the right to change the prices of the Products no more than once each Contract Year consistent with prices charged to third-party international distributors of the Products, taking into consideration such factors as exchange rates, device-specific reimbursement rates for the Products in the Territory, if any, competition, and the like, by notifying DISTRIBUTOR in writing of any such change at least ninety (90) days prior to the effective date of any [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. such change; provided, however, that until the date on which COMPANY repays all principal and accrued interest under that certain Amended and Restated Note issued by COMPANY in an aggregate principal amount of $3,000,000 pursuant to that certain Subordinated Convertible Note Agreement dated June 16, 2003, as amended by Amendment No. 1 to Convertible Subordinated Note Agreement dated August 6, 2003, as further amended by Amendment No. 2 to Convertible Subordinated Note Agreement dated March 30, 2007, and as further amended by Amendment No. 3 to Convertible Note Agreement of even date herewith (collectively, the “Note Agreement”), COMPANY shall not raise the prices of any of the Products listed on Schedule 1. Notwithstanding the foregoing, in no event shall any price increase exceed [*]% of the then current price for such Product. DISTRIBUTOR shall have the right to request a change in price, taking into consideration such factors as exchange rates, device-specific reimbursement rates for the Products in the Territory, if any, competition, and the like, by notifying COMPANY in writing of any such request and the reason for such request which request COMPANY shall consider in good faith.”

Amendment to Section 8.1. Section 8.1 of the Distribution Agreement is hereby deleted in its entirety and replaced with the following provision: ““COMPANY shall sell the Products to DISTRIBUTOR at the prices set forth in Schedule 1. Payments on purchase orders shall be due at the end of the month immediately following the month of shipment of the Products to DISTRIBUTOR. Payment shall be made by wire transfer in U.S. funds to an account designated in writing by COMPANY. All shipments of Products shall be billed to DISTRIBUTOR at the price in effect for each Product in accordance with this Section 8.1 and Schedule 1, on the date of DISTRIBUTOR’s purchase order for such Products. COMPANY shall have the right to change the prices of the Products no more than once [*] each Contract Year consistent with prices charged to third-party international distributors of the Products, taking into consideration such factors as exchange rates, device-specific reimbursement rates for the Products in the Territory, if any, competition, and the like, by notifying DISTRIBUTOR in writing of any such change at least ninety (90) days prior to the effective date of any [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. such change; provided, however, that until the date on which COMPANY repays all principal and accrued interest under that certain Amended and Restated Note issued by COMPANY in an aggregate principal amount of $3,000,000 pursuant to that certain Subordinated Convertible Note Agreement dated June 16, 2003, as amended by Amendment No. 1 to Convertible Subordinated Note Agreement dated August 6, 2003, as further amended by Amendment No. 2 to Convertible Subordinated Note Agreement dated March 30, 2007, and as further amended by Amendment No. 3 to Convertible Note Agreement of even date herewith (collectively, the “Note Agreement”), COMPANY shall not raise the prices of any of the Products listed on Schedule 1. Notwithstanding the foregoing, (i) in no event shall any price increase exceed [*]% of the then current price for such Product, and (ii) COMPANY shall maintain the price of the Pas-Port, Proximal Device, at $[*] until June 17, 2010. Further, DISTRIBUTOR shall have the right to request a change in price, taking into consideration such factors as exchange rates, device-specific reimbursement rates for the Products in the Territory, if any, competition, and the like, by notifying COMPANY in writing of any such request and the reason for such request which request COMPANY shall consider in good faith.”” [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.