Exhibit 10.1
This First Amendment to Purchase Agreement ("First Amendment"), by and
between the Lorad division of Trex Medical Corporation (together with its
affiliates, "Lorad"), United States Surgical Corporation (together with its
affiliates, "USSC") and Tyco Healthcare Group, LP (together with its affiliates,
"Tyco"), is dated as of December 3, 1999.
WHEREAS, Lorad, USSC, and Tyco are parties to that certain Purchase
Agreement ("Purchase Agreement"), dated as of May 14, 1999;
WHEREAS, Lorad, USSC and Tyco wish to amend the Purchase Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Section 1 is hereby amended to add the following sentence between the
first and second sentences of that section:
"(Table shall mean both the stereotactic prone table as well as the
Digital Spot Mammography unit, which were sold together as a system by
Lorad to USSC.)"
2. Sections 2(b), 2(c), and 3 of the Purchase Agreement shall be deleted
in their entirety.
3. The following language shall be substituted for Section 2(b):
(b) Lorad will take title possession of all ****** Tables in accordance
with the following schedule: ****** Tables per quarter for a period of
****** calendar quarters commencing ****** and ending ******. The last
****** Tables will be picked up and Lorad will take title and
possession on ******. Lorad may, in its discretion, accelerate the
foregoing schedule. The purchase price will be ****** per Table for an
aggregate purchase price of ****** (which aggregate shall be adjusted
downward in the event the actual number of Tables available for sale is
less than ******). The ****** purchase price will be payable at a rate
of ****** per quarter for a period of seven calendar quarters
commencing ****** and ending ******, followed by a final payment of
****** on ******. If more than ****** Tables are bought by Lorad from
USSC in any of these ****** calendar quarters, Lorad will pay to USSC
within thirty (30) days after delivery and acceptance of any such Table
by Lorad, the sum of ****** per Table. To the extent any payment in
excess of the required payment is made in any of the ****** calendar
quarters referenced above, the remaining installments shall be reduced
(in reverse order) so that the aggregate purchase price paid does not
exceed ******. For example, if in the calendar quarter ending ******,
Lorad purchases 22 Tables, then the payment due March 31, 2000 shall be
****** and the payment ****** shall be ******. The purchase price for
the Tables set forth above and the Additional Consideration set forth
below include all federal, state or local excise, sales, use, or other
similar taxes.
4. The following language shall be substituted for Section 2(c):
In addition to the purchase price set forth above, Lorad agrees to pay
USSC an additional amount not to exceed ****** in connection with its
purchase of Tables with a manufacture date after January 1, 1998 (the
"Additional Consideration"). There are ****** such Tables, ****** of
which were manufactured prior to January 1, 1998, and Lorad has agreed
to include those ****** in regards to the Additional Consideration.
These ****** Tables are hereafter referred to as the "Additional
Consideration Table(s)." The Additional Consideration shall be payable
upon resale of Current Inventory Tables to end users as opposed to
distributors unless such distributors have paid the purchase price in
full. The Additional Consideration shall be payable as each Current
Inventory Table is sold at a rate per Current Inventory Table as
specified in the following schedule:
Current Inventory Table Rate Maximum
-----------------------------------------------------------------------------------------
Units ****** to ****** ****** per table ******
Units ****** to ****** ****** per table ******
Units ****** to****** ****** per table ******
Additional Consideration payments will be payable in arrears quarterly
but (subject to reductions for sales to Novation and shortfalls in the
number of Tables actually sold to Lorad) in any event any balance of
the Additional Consideration owed but remaining unpaid will be paid to
USSC by Lorad on or before ******. If the actual number of Additional
Consideration Tables available for sale is less than ****** Tables,
then the Additional Consideration payable to USSC shall be reduced by
****** multiplied by the shortfall. In addition, notwithstanding the
above, sales to Novation (as described in Section 8 below) will reduce
the Additional Consideration by ****** per Additional Consideration
Table sold to Novation (as described in Section 8 below). Each
Additional Consideration Table sold or leased to Novation or any
Novation participants (as described in Section 8 below), whether sold
or leased for the account of Lorad or USSC, will reduce the Additional
Consideration payable to USSC by ****** per Additional Consideration
Table sold (or leased). By way of example, if six (6) Additional
Consideration Tables are sold or leased to Novation, three (3) for the
account of USSC and three (3) for the account of Lorad, the maximum
Additional Consideration payable to USSC by Lorad shall not exceed
******. In addition, for any Novation sales or leases after ******,
USSC shall refund to Lorad a portion of the Additional Consideration
paid at a rate of ****** per Additional Consideration Table sold or
leased to Novation (whether sold pursuant to Section 8 below for the
account of USSC or Lorad). Such refunds shall be paid to Lorad by USSC
within fifteen (15) business days of the sale to Novation. Overdue
refunds shall be subject to interest at a rate of 8% per annum computed
on a 30/360 day year until paid in full by USSC to Lorad.
5. Section 2(d) is hereby amended to delete the third sentence thereof and
substitute the following therefor:
"Any damage to Tables with a manufacture date prior to January 1, 1998,
whether due to age, caused directly or indirectly by USSC or its
agents, or due to any other factor shall be reported by Lorad to USSC
on or before June 30, 2000."
6. The following language will be substituted for Section 3:
******. Lorad will pick up and take title and possession of the Tables
in accordance with the following schedule: ****** Tables per quarter
for a period of ****** calendar quarters commencing ****** and ending
******. The last 8 Tables will be picked up by Lorad and Lorad will
take title and possession thereof on ******. Lorad may, in its
discretion, accelerate the foregoing schedule. USSC agrees that it
shall not sell, give away, transfer, or otherwise dispose of the Tables
until scheduled pick-up and title transfer. In the event that fewer
than ****** Tables are sold to Lorad, USSC shall pay to Lorad an amount
equal to the shortfall multiplied by Lorad's current list price for
stereotactic tables. Such amount shall be due within fifteen days of
discovery of such shortfall, but in any event shall be paid no later
than ******.
IN WITNESS WHEREOF, the undersigned have executed as an instrument
under seal as of the date first written above.
TREX MEDICAL CORPORATION,
LORAD division
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: President & CEO
UNITED STATES SURGICAL, division of Tyco
Healthcare Group, LP
By: /s/ Xxxxxx Amlico
-------------------------
Name: Xxxxxx Amlico
Title: VP & Controller
TYCO HEALTHCARE GROUP, LP
By: /s/ Xxxxx X. Xxxxxx XX
----------------------------
Name: Xxxxx X. Xxxxxx XX
Title: President, USS
