Addendum and Amendment to the Deferred Prosecution Agreement
Exhibit 10.1
Addendum and Amendment to the Deferred Prosecution Agreement
1. ▇▇▇▇▇▇ Medical Technology, Inc. (“▇▇▇▇▇▇”), pursuant to authority granted by its Board of
Directors, and the United States Attorney’s Office for the District of New Jersey (the “Office”),
enter into this Addendum and Amendment to the Deferred Prosecution Agreement (the “Addendum”).
2. ▇▇▇▇▇▇ and the Office agree to extend the term of the Deferred Prosecution Agreement currently
in effect between ▇▇▇▇▇▇ and the Office (the “DPA”) by a period of 12 months, from September 29,
2011 to September 29, 2012. Unless expressly addressed herein, all other terms and conditions of
the DPA will remain in full force and effect until September 29, 2012.
3. Paragraphs 1 and 4 of the DPA are hereby amended to substitute “twenty-four (24) months” for
“twelve (12) months” and Paragraph 52 of the DPA is hereby stricken.
4. If the Office does not find, prior to September 29, 2012, that ▇▇▇▇▇▇ has committed a knowing,
willful and uncured breach of a material provision of the DPA, then the Office agrees not to take
any additional action regarding any breach of the DPA referenced in the Office’s May 5, 2011
letter; provided, that the Office agrees that it will not make any such finding unless it first
gives ▇▇▇▇▇▇ notice and an opportunity to be heard, as specified in DPA paragraph 50; and provided,
further, that the Office agrees that any such finding will be based on either (1) conduct that
occurs after the date of the execution of this Addendum (the “Addendum Execution Date”) or (2)
conduct that has occurred prior to the Addendum Execution Date of which the Monitor is not aware,
as of the Addendum Execution Date.
5. ▇▇▇▇▇▇ and the Office agree to modify the date upon which the next report from the Monitor is
due from September 29, 2011 to November 29, 2011. ▇▇▇▇▇▇ and the Office further agree that after
November 29, 2011, the Monitor reports will be due on April 29, 2012 and September 29, 2012.
Accordingly, DPA Paragraph 11 is amended to strike both instances of the word “quarterly,” and DPA
Paragraph 19(c) is amended to substitute “on December 29, 2010, March 29, 2011, June 29, 2011,
November 29, 2011, April 29, 2012, and September 29, 2012” for “on at least a quarterly basis,” and
the last sentence of DPA Paragraph 19(c) is amended to strike the word “quarterly.”
6. The Office agrees to move on September 15, 2011 for an Order, in the form attached as
Exhibit A, further continuing the proceedings in United States ▇. ▇▇▇▇▇▇ Medical Technology, Inc.,
Mag. No. 10-8233 (MCA), through and including September 29, 2012.
AGREED TO: |
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇. ▇▇▇▇▇▇▇ Childers | |||
Chief Executive Officer
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Attorney for the United States, Acting Under | |||
▇▇▇▇▇▇ Medical Technology, Inc.
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Authority Conferred by 28 U.S.C. § 515 | |||
9/15/11
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9/15/11 | |||
DIRECTOR’S CERTIFICATE
I have read this Addendum and Amendment to the Deferred Prosecution Agreement (“Addendum”) and
carefully reviewed every part of it with counsel for ▇▇▇▇▇▇ Medical Technology, Inc. (the
“Company”). I understand its terms and voluntarily agree, on behalf of the Company, to each of
them. Before signing this Addendum, I consulted with the attorney for the Company. The attorney
fully advised me of the consequences of entering into this Addendum and no one has threatened or
forced me, or to my knowledge any person authorizing this Addendum on behalf of the Company, in any
way to enter into this Addendum. I am also satisfied with the attorney’s representation in this
matter. I certify that I am a director of the Company, and that I have been duly authorized by the
Board of Directors of the Company to execute this certificate on behalf of the Company.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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9/15/11 | |||
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
CERTIFICATE OF COUNSEL
I am counsel for ▇▇▇▇▇▇ Medical Technology, Inc. (the “Company”). In connection with such
representation, I have reviewed and discussed this Addendum and Amendment to the Deferred
Prosecution Agreement (“Addendum”) with the authorized representative of the Company. Based on my
review and discussion, I am of the opinion that:
1. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Executive Officer and a Director of the Company, is duly authorized
to enter into this Addendum on behalf of the Company; and
2. This Addendum has been duly and validly authorized, executed and delivered on behalf of the
Company, and is a valid and binding obligation of the Company.
Further, I have carefully reviewed this Addendum with directors of the Company. I have fully
advised these directors of the consequences of entering into this Addendum. To my knowledge, the
Company’s decision to enter into this Addendum is an informed and voluntary one.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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9/15/11 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP |
CERTIFIED COPY OF RESOLUTION
Upon motion duly made, seconded, and unanimously carried by the affirmative vote of all the
Directors present, the following resolutions were adopted:
WHEREAS, ▇▇▇▇▇▇ Medical Technology, Inc. (the “Company”) has been
engaged in discussions with the United States Attorney’s Office for the District of New Jersey
(the “Office”) regarding an alleged breach of its Deferred Prosecution Agreement with that Office;
WHEREAS, the Board of the Company consents to resolution of these discussions by entering into
the Addendum and Amendment to the Deferred Prosecution Agreement (“Addendum”) that the Company’s
Board of Directors has reviewed with outside counsel representing the Company;
NOW THEREFORE, BE IT RESOLVED that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Company’s Chief Executive Officer and
a Director, be, and hereby is, authorized to execute the Addendum on behalf of the Company
substantially in the same form as reviewed by the Company’s Board of Directors at this meeting and
as attached hereto as Exhibit A, and is authorized to execute the Director’s Certificate attached
thereto.
SECRETARY’S CERTIFICATION
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the duly elected Secretary of ▇▇▇▇▇▇ Medical Technology, Inc. (the
“Company”), a corporation duly organized under the laws of the State of Delaware, hereby certify
that the following is a true and exact copy of a resolution approved by the Board of Directors of
the Company at its telephonic meeting held on the 13th day of September, 2011;
WHEREAS, ▇▇▇▇▇▇ Medical Technology, Inc. has been engaged in discussions with the United
States Attorney’s Office for the District of New Jersey (the “Office”) regarding resolution of an
alleged breach of its Deferred Prosecution Agreement with the Office;
WHEREAS, the Board of Directors of the Company consents to resolution of these discussions on
behalf of the Company by entering into an Addendum and Amendment to the Deferred Prosecution
Agreement (“Addendum”) that the Board of Directors has reviewed with outside counsel representing
the Company;
NOW THEREFORE, BE IT RESOLVED that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Company’s Chief Executive Officer and
a Director, be, and hereby is, authorized to execute the Addendum on behalf of the Company
substantially in the same form as reviewed by the Board of Directors at this meeting and as
attached hereto as Exhibit A, and is authorized to execute the Director’s Certificate attached
thereto.
IN WITNESS WHEREOF, I have hereunto signed my name as Secretary and affixed the Seal of said
Corporation this 15th day of September, 2011.
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||