Exhibit 10.7
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AMENDMENT No. 1 to Agreement
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FIRST AMENDMENT (this "Amendment") dated as of February 5, 2002 to that
certain Agreement (the "Original Agreement") between Ethicon Endo-Surgery, Inc.
("EES") and Xxxxxxx Imaging Corporation ("FIMG") dated October 10, 1997, as
modified by that certain Addendum to the Agreement ("Addendum") dated January
28, 1998 (the Original Agreement as amended by the Addendum, the "Agreement").
WHEREAS, FIMG has developed a breast imaging system for full-field digital
upright mammography (rather than biopsy) known as a SenoScan(R) (the "SenoScan
System"); and
WHEREAS, EES is desirous of waiving any right it may have to distribute,
market or sell the SenoScan System as provided below without waiving any of its
other rights under the Agreement.
NOW, THEREFORE, for due and valid consideration, the sufficiency of
which is acknowledged by both parties, EES and FIMG hereby agree as follows:
ARTICLE 1 DEFINITION; EFFECTIVE DATE
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1.1 All capitalized terms used and not defined in this Amendment shall have
the meaning as set out in the Agreement.
1.2 The "Effective Date" of this Amendment is January 23, 2002.
ARTICLE 2 AMENDMENTS
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2.1 Notwithstanding Section 1 of the Original Agreement and Sections 2 and 12
of the Addendum, EES hereby irrevocably relinquishes any and all rights to
market, sell or distribute the SenoScan System during the term of the Agreement;
provided, however, this Section 2.1 shall not apply to any other system
developed by Xxxxxxx during the term of the Agreement or to a hybrid of the
SenoScan System and another system to which Xxxxxxx gives the SenoScan brand
name; and provided, further, this Section 2.1 shall not affect any other rights
which EES may have under the Agreement including without limitation with respect
to Tables and or imaging systems on which the EES Mammotome system may be
installed.
2.2 Section 8.1 of the Addendum to the Agreement is hereby deleted in its
entirety and the following Section 8 is substituted in its place:
8.1 FIMG shall pay EES a commission in the amount of $2,500
per Table for all Table sales resulting from leads and sales assistance
provided by EES representatives. Such commission shall be payable by
FIMG on a quarterly basis, based on Tables shipped by FIMG to its
customers during that quarter. EES shall at its sole discretion
distribute such payments made by FIMG including but not limited to
making such payments in the form of sales commissions, field level
marketing programs, or similar activities. For purposes of this Section
8.1, Quarters shall mean calendar quarters which are deemed to end on
March 31, June 30, September 30 and December 31, respectively.
ARTICLE 3 MISCELLANEOUS
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3.1 Except as expressly modified by this Amendment, the terms of the Agreement
shall continue in full force and effect without modification.
3.2 This Amendment shall be deemed to have been made in the State of Ohio and
its form, execution, validity, construction and effect shall be determined in
accordance with the laws of the State of Ohio, without giving effect to the
principles of conflicts of law thereof.
3.3 All section headings contained in this Amendment are for convenience of
reference only and shall not affect the meaning or interpretation of this
Amendment.
3.4 This Amendment may be executed in multiple counterparts, each of which
shall be an original as against any party whose signature appears thereon but
all of which together shall constitute one and the same instrument. A facsimile
transmission of the signed Amendment shall be legal and binding on all parties.
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IN WITNESS WHEREOF, each of the parties, through their authorized
officers, has caused this Amendment to be duly executed in the name of and on
its behalf, as of the Effective Date of this Amendment.
XXXXXXX IMAGING CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: XXXXX XXXXXXX
Title: PRESIDENT, CEO
ETHICON ENDO-SURGERY, INC.
By: /s/ Xxxxxxx Dakerd
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Name: XXXXXXX DAKERD
Title: VP Worldwide Business Development
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