CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
AGREEMENT, dated as of October 10, 1997, by and between Ethicon
Endo-Surgery, Inc. ("EES") and Xxxxxxx Imaging Corporation ("FIMG").
WHEREAS, FIMG is in the business of manufacturing, selling and
distributing stereotactic x-ray imaging equipment, in particular, the
Mammotest(R) System; and
WHEREAS, EES is in the business, among other things, of manufacturing,
selling and distributing the Mammotome(R) Biopsys system; and
WHEREAS, FIMG currently sells and distributes stereotactic x-ray imaging
equipment on which the Mammotome Biopsys system is or may be installed; and
WHEREAS, FIMG and EES wish to formalize and expand the relationship
between the parties and their respective products;
NOW, THEREFORE, for due and valid consideration as set forth herein, EES
and FIMG hereby agree as follows:
1. FIMG hereby grants to EES the option, at any or all times during the
term of this Agreement, to distribute *-* the Mammotest(R) and other FIMG breast
imaging systems (collectively referred to herein as the "FIMG Systems"). Should
EES decide to so distribute any or all of the FIMG Systems the parties shall
negotiate appropriate transfer pricing and other terms as necessary; *-* on the
FIMG Systems. This option to distribute shall survive any merger of or with,
sale of substantially all of the assets of, change of control of, reorganization
or similar restructuring of FIMG and be binding upon any assigns or successors
to its business. In the event that FIMG or its assigns or successors shall be
unable, unwilling or otherwise fail to allow EES to so distribute the FIMG
Systems, then EES, in addition to any other
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
rights or remedies, shall be granted a *-* license to all intellectual property
and know-how necessary to make, have made, use or sell *-* and *-* for a royalty
rate *-* on net sales for the capital equipment portion of such *-* manufactured
and sold by EES. The term of the *-* license shall be *-* years from the date
these rights are exercised.
2. Nothing in this Agreement shall be deemed to prevent EES from selling
the Mammotome Biopsys systems to any other producer of imaging equipment as
deemed appropriate by EES. Similarly, nothing in this Agreement shall be deemed
to prevent FIMG from selling any of the FIMG Systems to other parties or
distributors as deemed appropriate by FIMG; provided that *-* other than *-* or
*-* has been installed. Except as expressly set forth in this Agreement, each of
the parties acknowledges that this Agreement is not intended to confer any
rights of exclusivity on or in connection with the other party in any aspect of
its respective business.
3. During the term of this Agreement, FIMG shall maintain the design of the
FIMG Imaging Systems (which are used for breast biopsies) *-*. FIMG shall not,
without the prior written consent of EES, design, develop, manufacture or
distribute any products that substantially conform to the specifications and
intended functionality of the Mammotome Biopsys system.
4. During the term of this Agreement, *-* agrees to *-* systems, as
appropriate, *-*. *-* agrees to provide *-*. FIMG agrees to cover all shipping
*-* expenses *-*. EES agrees to cover all shipping *-* expenses *-*.
2
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
5. During the term of this Agreement, EES shall include the Mammotest
system *-* and shall take such steps as is reasonably necessary for the
Mammotest system to be eligible to participate in EES's existing and future
national contracts *-*. Specific terms of pricing and sale of the
Mammotest and other FIMG Systems in connection with such *-* national contract
shall be determined by FIMG and the applicable third party customers. FIMG shall
reimburse EES for *-* and other related costs incurred by EES in connection with
*-* such national contract. In the event that EES becomes unable to make the
Mammotest system eligible for *-* national contracts, then, FIMG, as its sole
and exclusive remedy, may terminate this Agreement upon six (6) months' prior
written notice at any time after *-*.
6. Following the execution of this Agreement, the parties will use
reasonable good faith efforts to expand the scope of their strategic
relationship by entering into an additional definitive agreement, which the
parties currently intend shall, among other things, contain the terms and
conditions set forth on the Exhibit annexed hereto. The parties shall use all
reasonable good faith efforts to finalize such definitive agreement by December
31, 1997. Nevertheless, failure of the parties to enter into such additional
definitive agreement by December 3 1, 1997 will have no consequence whatsoever,
including any consequence on the enforceability of the other provisions of this
agreement.
7. The term of this Agreement shall be from the date hereof through and
until *-* subject to renewals upon the mutual agreement of the
parties.
8. The terms and conditions of this Agreement and all other written
information designated as confidential and exchanged between EES and FIMG while
this Agreement is in effect shall be treated as confidential information under
the terms of the confidentiality agreement between the parties dated as of *-*.
Neither party shall during the term hereof and for
3
three (3) years after termination of this Agreement use or disclose any such
information to any third party without written approval of the other party
except as may be required by federal securities or other laws.
9. Neither party shall originate any publicity, news release or public
announcement, written or oral, whether to public or press, stockholders or
otherwise, relating to this Agreement without the mutual consent of both
parties. If either party believes that such an announcement is required by
federal securities or other laws, then such party shall give the other party no
less than 48 hours prior notice of, and the chance to review and provide
comments on, any such announcement.
10. All disputes, controversies and differences between the parties
arising directly or indirectly from this Agreement or any transaction
contemplated hereby or thereby or in connection herewith or therewith shall be
resolved by arbitration. Arbitration shall be held before three arbitrators in
New York, New York pursuant to the Commercial Arbitration Rules then obtaining
of the American Arbitration Association, which arbitration shall be binding on
all parties and shall constitute the final resolution of such dispute. No party
shall commence any action against another to resolve any such dispute in any
court except that judgment upon any such award rendered may be entered by any
court having jurisdiction thereof. The arbitrators (i) shall not have any power
or authority to add to, alter, amend or modify the terms of this Agreement; (ii)
shall interpret and construe this Agreement in accordance with, and shall be
bound by, the laws of the State of New Jersey (except that this Section shall be
governed by the Federal Arbitration Act); (iii) shall have no power or authority
to grant or award punitive damages; (iv) shall establish and enforce appropriate
rules to ensure that the proceedings, including the decision, be kept
confidential and that all Confidential Information of the parties be kept
confidential and be used for no purpose other than the arbitration and (v) shall
have the power to enforce specifically this Agreement and the terms and
conditions hereof in addition to any other remedies at law or in equity. The
parties shall be deemed to have waived any rights to punitive damages.
Notwithstanding the foregoing, any court having competent jurisdiction shall
have the power to review the decision of the arbitrators to determine (i)
whether the findings of fact rendered by the
4
arbitrators are, on the entire record of said arbitration proceedings, supported
by substantial evidence, and (ii) whether as a matter of law based on said
findings of fact the award should be affirmed, modified or vacated. Upon such
determination, judgment shall be entered in favor of either party consistent
therewith.
11. Neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned by either party without the prior written consent of
the other party; except that EES may, without such consent, assign this
Agreement or any or all of such rights, interests and obligations to a direct or
indirect wholly-owned subsidiary of Xxxxxxx & Xxxxxxx, a New Jersey corporation,
or to any affiliate thereof. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other person shall have any right,
benefit or obligation under this Agreement as a third party beneficiary or
otherwise.
12. This Agreement shall not be modified or otherwise amended except
pursuant to an instrument in writing executed and delivered by each of the
parties hereto.
13. The failure of either party to require the performance of any term of
this Agreement, or the waiver of either party of any breach of this Agreement,
shall not prevent a subsequent exercise or enforcement of such terms or be
deemed a waiver of any subsequent breach of the same or any other term of this
Agreement.
14. In the event that any one or more of the provisions (or any part
thereof) contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
15. It is the desire and intent of the parties to provide certainty as to
their future rights and remedies against each other by defining the extent of
their undertakings herein. This
5
Agreement constitutes the entire agreement and understanding between the
parties and there are no warranties, representations, conditions, provisions or
other terms related thereto other than those set forth herein. This Agreement
supersedes all previous understandings, agreements and representations between
the parties, written or oral, with respect to the subject matter hereof.
16. Nothing in this Agreement shall be construed to make the relationship
of the parties herein a joint venture, an association, a partnership, or make
the parties agents of one another. The parties are not authorized to act as
agents of one another as to any matter or to make any representations to any
third parties indicating or implying the existence of any such agency
relationship. The relationship between the parties shall be that of independent
contractors.
IN WITNESS WHEREOF, the parties hereto intending legally to be bound
hereby, have each caused this Agreement to be duly executed as of the date first
above written.
XXXXXXX IMAGING CORPORATION ETHICON ENDO-SURGERY, INC.
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxxxx
--------------------------- ----------------------------
Signed: /S/XXXXXX XXXXXX Signed: /S/XXXXX XXXXXXX
--------------------------- ----------------------------
Date: October 14, 1997 Date: October 10, 1997
--------------------------- ----------------------------
B.E.S. 10/10/97
6
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
EXHIBIT
TERMS FOR EXPANDED ALLIANCE
------------------------------------------------------------------------------
1) Parties agree that the Term for the expanded Alliance is multi-year *-*
with options to renew for subsequent multi-year term(s) *-* at EES's
option;
2) The Alliance will cover the worldwide sale of *-* and in *-*. Specific
agreements that FIMG has with *-*;
3) The parties recognize that the relationship involves marketing *-* ;
4) The intent is to have Mammotest systems sold directly to the end user
customer by FIMG. Both parties agree to develop and provide *-* in order to
*-* further the intent of the Alliance. To this end, EES agrees *-* EES
agrees to *-* to be established from the *-* ;
5) *-* FIMG agrees that the *-* (excludes standard large core needle systems)
*-* ;
6) FIMG agrees to sell the Mammotome system bundled with the Mammotest system
where appropriate and as determined by the parties;
7) The parties agree to undertake joint development efforts for *-*. All *-*
products developed for *-* by FIMG shall be part of the marketing alliance
as specifically determined by the parties. For products developed by FIMG
outside the field of *-* distribution rights in *-*;
8) It is the intent of the parties to ensure continued availability of *-* for
the sales alliance in the event FIMG was purchased, reorganized, or became
insolvent;
------------------------------------------------------------------------------
CONFIDENTIAL October 9,1997 Page 1
EXHIBIT
TERMS FOR EXPANDED ALLIANCE
------------------------------------------------------------------------------
9) Professional education will be the prime responsibility of EES;
Responsibility for applications training for each Mammotest system shall be
the primary responsibility of FIMG and training for each Mammotome system
shall be the primary responsibility of EES or as determined by the parties;
installation, service and warrantee for the Mammotest system shall be the
prime responsibility of FIMG;
10) FIMG shall provide access to EES personnel (e.g. Operations, Quality
Assurance, Regulatory Affairs, etc.) to audit the facilities and operations
prior to and during the term of this alliance given adequate advance
notice;
11) Parties will agree to appropriate termination provisions based on minimum
economic benefits or breach of performance obligations.
12) It is expressly understood that this term sheet is not intended to be
binding. Neither party to this term sheet shall be deemed obligated to
proceed with the proposed transaction or with execution of the definitive
agreement if such party should decide, for any reason prior to the signing
of the definitive agreement, that to so proceed would not be in its best
interests. Any obligation of either of the parties to proceed with the
proposed transaction shall be conditioned upon, among other things,
approval of the Board of Directors of such party and the negotiation,
drafting and execution of the definitive agreement setting forth the full
agreements of the parties in form and with such terms and provisions as are
acceptable to such party.
XXXXXXX IMAGING CORPORATION ETHICON ENDO-SURGERY, INC.
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxxxx
--------------------------- ----------------------------
Signed: /S/XXXXXX XXXXXX Signed: /S/XXXXX XXXXXXX
--------------------------- ----------------------------
Date: October 14, 1997 Date: October 10, 1997
--------------------------- ----------------------------
B.E.S. 10/10/97
------------------------------------------------------------------------------
CONFIDENTIAL October 9,1997 Page 2
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
This Addendum ("Addendum") modifies the Agreement ("Agreement") between
Ethicon Endo-Surgery, Inc. ("EES") and Xxxxxxx Imaging Corporation ("FIMG")
dated October 10, 1997.
NOW, THEREFORE, for due and valid consideration as set forth herein, EES
and FIMG hereby agree as follows:
1. FIMG grants EES an option to renew, at EES's sole discretion, the Agreement
for *-* upon the expiration of the initial term
on *-*. EES shall pay *-* for each additional option term
exercised. EES shall notify FIMG in writing, thirty (30) days prior to the
end of the term of EES's intent to exercise their option to renew.
2. The Agreement covers the worldwide sale of EES Mammotome Biopsys system
("EES System") and FIMG Systems (collectively, the Mammotest, all future
versions of the Mammotest, and other FIMG breast imaging systems) *-* as
defined in the Addendum Section No. 3 below or as EES exercises its option
as defined in the Agreement Section No. 1. FIMG shall use best efforts *-*
as needed.
3. FIMG currently has *-* agreement with the Xxxxxxx-Xxxxx Division of
Urohealth Systems, Inc. (now Imagyn) ("Urohealth Agreement") for
Mammotest(R)Stereotactic Prone X-Ray Tables ("Tables") wherein Urohealth
agrees to purchase *-* of systems from FIMG for use in general surgery in
the U.S. FIMG represents and warrants that it has the right to enter into
this Agreement with EES and it has the right to sell FIMG Systems to all
markets and all surgical specialties. The redacted Urohealth Agreement
dated September 8, 1997 is hereby referenced as Appendix I.
4. FIMG shall have sales responsibility for its own products and will
distribute the EES System to customers as a part of the initial sale of the
FIMG System, as appropriate or requested by the end-user customer.
5. EES shall endeavor to support sales of FIMG Systems when practicable by
*-*
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 1
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
*-* inclusion in *-* reviews; co-developing account level sales strategy;
providing access *-* activity; sales of FIMG Systems to customers *-*; etc.
6. EES shall *-*. Except as provided below, EES shall *-*. However, *-*
regardless of the *-*. Should EES deem it necessary to *-*, EES shall
notify FIMG in writing and *-* . FIMG shall have no longer than *-* from
date of written notification to provide *-*. Should FIMG *-*, EES shall
*-*.
7. FIMG shall *-*. FIMG shall *-* except as outlined in the *-*.
8. When EES *-* in conjunction with the *-* shall be collected and paid for as
follows:
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 2
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
8.1 FIMG shall *-* EES for all FIMG Systems sold, except when FIMG Systems
are sold *-* or as mutually agreed upon by *-*. For purposes of this
section, FIMG Systems shall include FIMG Systems as defined in
Addendum No. 2, as well as other products and services such as:
options, initial installation, applications training, service and
warranty coverage, but shall exclude any extended service and warranty
contracts that provide coverage beyond the initial service and
warranty period. *-* on a quarterly basis and shall be based on *-*
during that quarter. Quarters shall be defined as calendar quarters
which end on the dates of March 31st, June 30th, September 30th and
December 31st. EES shall distribute *-*. *-* shall be tiered as
follows on an annual basis (1/1 - 12/31):
8.1.1 *-*
8.1.2 *-* shall be calculated based on *-* beginning January 1, 1998.
8.1.3 On *-* FIMG shall deliver to EES written reports
that shall include copies of invoices for FIMG Systems sold. All
information contained in such reports shall be treated as
confidential information.
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 3
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
Within *-* days from of *-* under Addendum Section No 8.1.1. FIMG
shall permit EES to audit the purchase orders and other relevant
information that supports these reports given adequate notice at
EES's expense.
8.1.4 At this time, EES intends to apply the *-* schedule as set forth
in Appendix II. However, EES may change such schedule from time
to time at its sole discretion. EES shall notify FIMG of all such
changes. Changes to this schedule shall be reviewed by EES with
FIMG on *-* or as needed. *-* referenced in Addendum No. 8.1.1
may be renegotiated upon mutual agreement of EES and FIMG if
market conditions so warrant.
9. FIMG shall assign at least one (1) Regional Sales Manager and one (1) Sales
Representative to each EES Region / Regional Manager to be responsible for
coordinating *-*. The FIMG Sales Representative's,
assigned to EES, primary responsibility and accountability will be to
support the Agreement. The FIMG Sales Representative assigned to EES shall
not *-*. Assessment of field performance of
the FIMG Sales Representative assigned to EES will be appraised by both the
EES Regional Director and the FIMG Regional Manager. Changes to or
additional FIMG Sales support will be determined by the EES Regional
Director and the FIMG Regional Manager together.
10. FIMG shall *-* where *-*. While *-* mounted on *-* part of the FIMG System.
*-* where EES is *-* stereotactic x-ray table *-* breast biopsy system *-*.
11. EES shall transfer each Mammotome Motorized Driver (BMI-1000) ("EES
Driver") to FIMG *-*
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 4
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
*-* the *-* in *-*. *-* does not *-* at no charge, responds to *-* with *-*
or to the *-*. In consideration for receipt of each Mammotome Motorized
Driver (BMI-1000) FIMG *-*. EES may *-* provided that EES has provided FIMG
with ninety (90) days written notice.
12. The parties agree to meet at a minimum of *-* to assess opportunities for
collaboration. The failure of the parties to meet will not constitute a
material breach. In the event that the parties mutually decide to
collaborate in any particular area, prior to engaging in any such
collaboration, the parties shall enter into a written agreement for each
such collaboration. Such written agreement shall set forth the rights and
obligations of the parties with respect to know how, technology, funding,
intellectual property and patent rights developed or shared in such
collaboration. The research and development activities of both parties or
their direct affiliates shall continue to be done independently or with
third parties. Nothing in this Agreement is intended to grant either party
any intellectual property rights of the other party. All *-* developed for
*-* shall be subject to the Agreement. For products developed by *-*
outside the field of *-*, EES shall have *-* to market, sell, and
distribute for *-* within *-* of written notification. Such *-* any
relevant patent owned or controlled by FIMG. In addition, EES shall *-* to
*-* presented to FIMG prior to FIMG entering into an agreement with a
third-party. Specifically, in the event that the parties are unable to
agree upon the terms of a transaction within *-*, then FIMG shall be
permitted to offer *-* for sale to a third party, *-*
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 5
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
*-*. In the event that EES agrees to enter into such transaction, EES and
FIMG shall as promptly as practicable enter into such transaction. In the
event EES declines to enter into such transaction, then FIMG shall have *-*
from the expiration of the foregoing *-* period to consummate the
transaction set forth in the *-* but only on the terms and conditions that
are no more favorable to *-* or no less favorable than to FIMG than those
set forth in the *-*. In the event that such transaction is not consummated
within the *-*, then EES shall have the *-* with respect to any future
proposed Sales by FIMG to any third party.
13. In the event FIMG is purchased, reorganized, or becomes insolvent, the
Agreement shall survive. EES shall have the right to terminate the
Agreement, at its sole option, upon the purchase, reorganization or
insolvency at any time with *-* written notice.
14. Training responsibilities shall be shared by both FIMG and EES. FIMG shall
conduct a minimum of four (4) days of applications training on the FIMG
Systems for each new installation. EES shall conduct a minimum of one (1)
day of applications training on the EES System for each new installation.
All actual and incidental expenses will be covered by each party for their
respective training commitments. Installation, service and warranty for the
FIMG Systems is the responsibility of FIMG. Installation, service and
warranty for the EES System are the responsibility of EES.
15. FIMG and EES shall comply with GMP's (Good Manufacturing Practices) and all
relevant regulatory and legal authority. Each party shall notify the other
as soon as practical after receiving notice of any claim, action or inquiry
by the Food and Drug Administration or other applicable U.S. or foreign
regulatory body or government authority or court of law relating to
non-compliance of products covered in the Agreement with this article. FIMG
shall provide access to EES personnel (e.g., Operations, Quality Assurance,
Regulatory Affairs, etc.) to audit FIMG facilities and operations prior to
and during the term of this Agreement for the purpose of verifying
regulatory compliance following adequate advance
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 6
CONFIDENTIAL TREATMENT
Xxxxxxx Imaging Corporation has requested
that the portions of this document marked
with an asterisk be accorded Confidential
Treatment.
notice. FIMG shall have the same rights as described above for products
FIMG distributes for EES.
16. The Agreement (including the Exhibit thereto) and this Addendum
(collectively "Restated Agreement") will collectively expire on *-*
if not renewed as provided for in Addendum Section No. 1. The parties
may by written agreement terminate the restated Agreement at any time.
Either party may, without limiting its other relief, rights and remedies,
terminate the Restated Agreement if the other party breaches or violates
any material provisions of the Restated Agreement, provided that, if any
such violation or breach is curable, the non-breaching party gives written
notice to the current Agreement Manager and Company President by certified
letters specifying the violation or breach and allowing sixty (60)-days
from receipt of such notice to cure the violation or breach. Any such
termination will be effective at the end of such sixty (60)-days if the
violation or breach is not cured, or, if not curable, twenty (20)-days from
receipt of such notice. Obligations associated with confidentiality and
accrued payments shall survive any termination of the Restated Agreement
for the stated or appropriate time.
17. An Agreement Manager shall be appointed by each FIMG and EES. These
designated people shall be responsible for communication and management of
the day to day activities associated with the Agreement. The designated
Agreement Manager for FIMG is *-* and the designated Agreement Manager for
EES is *-*. These Agreement Managers shall meet at *-* to discuss,
administer and make recommendations for improvements in this relationship.
A change in Agreement Manager shall be communicated promptly in writing to
the party of interest. Any failure of these Agreement Managers to meet or
otherwise exercise their duties shall not constitute a material breach.
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 7
Addendum to Agreement Dated 10/l0/97
------------------------------------------------------------------------------
18. The Restated Agreement constitutes the entire, final, complete and
exclusive agreement of the parties with respect to its subject matter, and
supersedes any prior or contemporaneous oral or written understanding,
arrangement, letter of intent, agreement or the like. Any amendment to or
modification of the Restated Agreement shall only be by written agreement
of the parties. The order of precedence in resolving any conflict or
inconsistent terms or interpretation among the documents comprising the
Restated Agreement shall be as follows: this Addendum shall prevail over
the Agreement and the Proposed Terms for Expanded Alliance, dated October
10, 1997 (i.e., the Exhibit to the Agreement), and the Agreement shall
prevail over the Proposed Terms for Expanded Alliance.
Please signify your agreement to the foregoing by signing a copy of this
addendum in the area provided below.
Xxxxxxx Imaging Corporation Ethicon Endo-Surgery, Inc.
Name Xxxxxx Xxxxxx Name Xxxxxx Xxxxxxx
--------------------------- ----------------------------
Signed /S/XXXXXX XXXXXX Signed /S/XXXXXX XXXXXXX
--------------------------- ----------------------------
Date 1/29/98 Date 1/28/98
--------------------------- ----------------------------
KAO/pg2 1/28/98
------------------------------------------------------------------------------
CONFIDENTIAL January 28, 1998 Page 8
