TERMINATION OF EXCLUSIVE SALES REPRESENTATION, CO-PROMOTION AND COOPERATION AGREEMENT
TERMINATION
OF
EXCLUSIVE
SALES REPRESENTATION, CO-PROMOTION AND
COOPERATION
AGREEMENT
THIS
TERMINATION OF EXCLUSIVE SALES REPRESENTATION, CO-PROMOTION AND COOPERATION
AGREEMENT
(the
“Termination”) is made and entered into as of the last date of signature set
forth below (the “Effective Date”),
by and
between GIVEN
IMAGING LTD.,
a
company incorporated under the laws of Israel (“Given”)
and
ETHICON
ENDO-SURGERY, INC.,
an Ohio
corporation, acting by and through its InScope Division (“EES”),
(EES
and Given hereinafter each individually a “Party”
and
together the “Parties”).
WHEREAS,
the
Parties have entered into an Exclusive Sales Representation, Co-Promotion and
Cooperation Agreement, dated May 10, 2004, as amended in June, 2004, on October
4, 2004, on October 27, 2005, November, 2005, August 2006 and February 16,
2007
(the “Agreement”);
WHEREAS,
EES
provided written notice to Given on November 6, 2007 of its intent to terminate
the Agreement pursuant to Section 14.04(c) of the Agreement effective on or
about May 6, 2008; and
WHEREAS,
the
Parties now mutually desire to terminate their respective rights and obligations
under the Agreement effective January 20, 2008.
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Defined
Terms.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Agreement.
2. Accelerated
Termination Date.
The
Parties agree that the Agreement and each Party’s rights and obligations under
the Agreement shall terminate on January 20, 2008 (the “Accelerated Termination
Date”). Notwithstanding the foregoing, EES shall continue to provide the
reimbursement services described on Schedule
1
attached
hereto until the earlier of the completion of such service or May 6, 2008.
The
Accelerated Termination Date shall not affect the payments due from EES
to
Given pursuant to Section 14.04(c) of the Agreement.
3. Consideration;
Payments to Given; Commissions.
(a) In
consideration of the Accelerated Termination Date, and in addition to the
payments due from EES to Given pursuant to Section 14.04(c) of the Agreement,
EES shall pay Given one million, two hundred thousand US dollars (US$1,200,000)
on or before December 28, 2007.
(b) The
Parties agree that, pursuant to paragraph (a) above and Section 14.04(c) of
the
Agreement, EES shall pay the following amounts to Given on or before the dates
set forth below:
|
US
$1,200,000
|
-
|
December
28, 2007
|
|
US
$5,000,000
|
-
|
February
4, 2008
|
|
US
$2,620,000
|
-
|
February
28, 2008
|
The
Parties acknowledge and agree that these amounts represent all of the payments
due from EES to Given as a result of the Agreement and the Termination and
that
upon payment of these amounts, EES shall have fulfilled all of its financial
obligations to Given pursuant to the Agreement and the Termination.
(c) Given
will not be obligated to pay any commissions to EES for Products or Ancillary
Products sold in the Territory after the Effective Date.
4. Equipment
Transfer.
As of
the Accelerated Termination Date, EES shall transfer to Given all of its rights,
title and interest in and to the personal property listed on Schedule
2
to (the
“Equipment”). EES is transferring the Equipment to Given in “AS IS, WHERE IS”
condition, with no warranties of any kind and with all faults and defects.
5. Effect
on Agreement.
Until
the Accelerated Termination Date, the Agreement shall remain in full force
and
effect in accordance with its terms and does not relieve either party from
any
of its obligations thereunder.
[Next
Page is Signature page]
IN
WITNESS WHEREOF, the Parties hereby have executed this Termination by their
respective duly authorized officers effective as of the last date set forth
below.
|
ETHICON
ENDO-SURGERY, INC.
|
|
|
By:
|
/s/Xxxxxxxx
Xxxxxxx
|
|
Name:
|
Xxxxxxxx
Xxxxxxx
|
|
Title:
|
Vice
President
|
|
Date:
|
December
18, 2007
|
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
Title:
|
President
& Chief Executive Officer
|
|
Date:
|
December
18, 2007
|
