Exhibit 10.5
Execution Copy
PURCHASE AGREEMENT
This Purchase Agreement ("Agreement"), 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 May
14, 1999 (the "Effective Date").
WHEREAS, Lorad and USSC are parties to that certain Distributorship
Agreement dated as of October 20, 1995 as amended to date by the letter
agreement dated March 19, 1996, the letter agreement dated April 15, 1996, the
amendment to Distributorship Agreement dated March 26, 1998, the Amended
Agreement dated July 2, 1998, and the letter agreement dated August 10, 1998
(the "Distributorship Agreement");
WHEREAS, Tyco is the owner of all of outstanding capital stock of USSC;
WHEREAS, the parties wish to terminate their respective rights and
obligations under the Distributorship Agreement and provide for the repurchase
by Lorad of certain stereotactic tables purchased by USSC from Lorad under the
Distributorship Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Purchase and Sale of Tables. Subject to the terms of this Purchase Agreement,
Lorad agrees to purchase and USSC agrees to sell to Lorad *** stereotactic
tables with serial numbers as set forth on Schedule 1 of which *** are new
and 6 are demonstration units (each a "Table" and collectively, the
"Tables"). Any tables that are not specifically identified on Schedule 1 will
not be supported by Lorad for service, installation, or subject to Lorad's
current standard warranty or any Lorad warranty.
2. Purchase Price; Royalties.
(a) For purposes of this Section 2 and elsewhere in this Agreement, the
term "Current Inventory Tables" shall mean the Tables, together with
the stereotactic tables held in Lorad inventory immediately prior to
the purchase of the Tables by Lorad from USSC pursuant to this
Agreement (which inventory Lorad estimates to number approximately **
stereotactic tables).
(b) Lorad will take title and 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
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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 ****** (**) Current Inventory
Tables are sold by Lorad in any of these **** calendar quarters, Lorad
will pay to USSC at the time the next quarterly payment is due the sum
of $***** per Current Inventory Table multiplied by the number of
Current Inventory Tables sold by Lorad in excess of **. To the extent
any payment in excess of the required payment is made in any of the
seven 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 June 30, 1999, Lorad sells ** Current Inventory Tables
then the payment due September 30, 1999 shall be $****** and the
payment due ***** **, **** 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.
(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 the Tables (the "Additional Consideration"). The Additional
Consideration shall be payable, in the first instance, 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
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 stereotactic table sold to Novation (as
described in Section 8 below). Each stereotactic 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,
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will reduce the Additional Consideration payable to USSC by $***** per
stereotactic table sold (or leased). By way of example, if six (6)
stereotactic 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 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.
(d) Damaged Tables purchased by Lorad will be assessed accordingly for
adjustments requiring parts replacement or repair. USSC shall reimburse
Lorad the cost of parts, labor, and reasonable overhead incurred by
Lorad in connection with such repair. Any damage to Tables with a
manufacture date prior to ******* *, ****, 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 August 31, 1999.
Lorad shall report any physical damage to USSC at the time of Lorad's
inspection process, regardless of manufacture date, for payment
assessment. Notwithstanding the foregoing, USSC shall not be
responsible for damage to Tables manufactured after ******* *, ****
resulting from age or otherwise not directly or indirectly caused by
USSC or its agents.
3. Pick-Up. 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 * Tables will be picked up by Lorad and Lorad will take title and
possession 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 ***** **, ****.
4. Representations and Warranties.
(a) USSC and Tyco jointly and severally represent and warrant to Lorad:
(i) that USSC is the true, legal and beneficial owner of the Tables and
that USSC has not previously sold or transferred any or all of the Tables
to any third party, has not pledged, mortgaged, hypothecated or otherwise
encumbered any or all of the Tables, and has not granted any third party
any liens, security interests or other interests, contingent or otherwise,
in or with respect to any or all of the
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Tables. Upon the closing of the purchase and sale of the Tables pursuant
to this Agreement and other than as set forth in this Agreement neither
USSC nor Tyco shall have any further interest in the Tables and Lorad
shall be the sole legal and beneficial owner of the Tables, subject to no
liens, encumbrances, claims, security interests or restrictions
whatsoever;
(ii) that USSC is a corporation duly organized, validly existing, and in
corporate good standing under the laws of the State of Delaware and that
Tyco is a company duly organized and validly existing in its jurisdiction
of formation;
(iii) that each of USSC and Tyco has full power and authority to enter
into this Agreement and to perform all of its agreements and obligations
under this Agreement. This Agreement has been duly executed and delivered
by USSC and Tyco, and constitutes the legal, valid, and binding obligation
of USSC and Tyco enforceable against USSC and Tyco in accordance with its
terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity;
(iv) that the execution and delivery of this Agreement and the
consummation by USSC and Tyco of the transactions contemplated hereby will
not (A) violate or conflict with any provision of the Certificate of
Incorporation, By-laws or other charter documents of USSC or Tyco, each as
amended to date; or (B) constitute a violation of, or be in conflict with,
or constitute or create a default under, or result in the creation or
imposition of any encumbrance upon any property of USSC or Tyco pursuant
to (x) any agreement or instrument to which USSC or Tyco is a party or by
which USSC or Tyco or any property of USSC or Tyco is bound, or (y) any
statute, judgment, decree, order, regulation or rule of any court or
governmental or regulatory authority;
(v) that neither USSC nor Tyco has any stereotactic tables in its
inventory other than (A) the Tables and the Charity Tables (which in the
aggregate do not exceed ***) and (B) up to 10 tables maintained for
demonstration purposes and not offered for sale;
(vi) that the Tables include no more than *** tables with a manufacture
date prior to January 1, 1998;
(vii) that the Charity Tables are comprised of the oldest tables held by
USSC, that the Charity Table program began in October 1998 and ended on
March 12, 1999, and that as of the date hereof all Charity Tables are
committed to end-users;
(viii) that USSC has provided to Lorad a true and correct copy of the
Novation Contract as in effect as of the date hereof; and
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(ix) that the transactions contemplated by Section 8 below do not and will
not require the approval of Novation LLC (or any Novation participant).
(b) Lorad represents and warrants to USSC:
(i) that Trex Medical Corporation ("Trex Medical") is a corporation duly
organized, validly existing, and in corporate good standing under the laws
of the State of Delaware;
(ii) that Trex Medical has full power and authority to enter into this
Agreement and to perform all of its agreements and obligations under this
Agreement. This Agreement has been duly executed and delivered by Trex
Medical, and constitutes the legal, valid, and binding obligation of Trex
Medical enforceable against Trex Medical in accordance with its terms,
except as the enforceability thereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting creditors'
rights generally or by general principles of equity;
(iii) that the execution and delivery of this Agreement and the
consummation by Trex Medical of the transactions contemplated hereby will
not (A) violate or conflict with any provision of the Certificate of
Incorporation or By-laws of Trex Medical , each as amended to date; or (B)
constitute a violation of, or be in conflict with, or constitute or create
a default under, or result in the creation or imposition of any
encumbrance upon any property of Trex Medical pursuant to (x) any
agreement or instrument to which Trex Medical is a party or by which Trex
Medical or any property of Trex Medical is bound, or (y) any statute,
judgment, decree, order, regulation or rule of any court or governmental
or regulatory authority.
5. Releases. Except for the obligations set forth in this Agreement, Lorad
hereby releases and forever discharges USSC and Tyco, and their respective
successors, assigns, agents, employees, principals, directors, officers,
stockholders, attorneys, affiliates, and related companies from the royalty
payment obligations as set forth in the Distributorship Agreement. Lorad also
releases USSC from certain current outstanding debt payments owed to Lorad
valued at $******** which debt is described on Schedule 5 hereto. USSC agrees to
pay all other debt outstanding as of the date hereof owed to Lorad in the
ordinary course of business but in any event prior to *** **, **** which the
parties acknowledge is equal to $********. USSC agrees to pay all debt owing to
Lorad which may arise after the date hereof on time in the ordinary course of
business. Each of Tyco and USSC acknowledges it has no claim against or right to
any reserves maintained by Lorad in respect of any tables (including the Tables)
held in USSC or Tyco inventory. Except for the obligations set forth in this
Agreement, each of Tyco and USSC releases and forever discharges Lorad, its
successors, assigns, agents, employees, principals, directors, officers,
stockholders, attorneys, affiliates, and related companies from any debt or
other obligations owed to USSC, including those set forth in the Distributorship
Agreement.
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6. Trade Shows. Lorad will work with USSC at trade shows where USSC has acquired
booth space and will be promoting stereotactic biopsy. Lorad will provide the
most current version of its stereotactic tables, stages, and DSM work stations
for demonstration purposes at the conventions listed below. For the following
shows, Lorad will provide, at Lorad's expense, shipment of the equipment to the
show, set-up of equipment, dismantling of the equipment and shipment back from
the show. Equipment to be displayed will be mutually agreed upon between Lorad
and USSC.
Xxxxx Xxxxxx 2/08/99 - 2/12/99 2 stages, 2 DSM
Fourth Annual BreastConference 2/11/99 - 2/14/99 2 tables, 1 stage
SSO 3/5/99 - 3/6/99 1 table
Spring ACS 4/25/99 - 4/28/99 3 tables
RSNA 11/28/99 - 12/3/99 3 tables
Additional shows, such as the AORN scheduled for April 1999, may be added if
mutually agreed upon. All expenses related to the booth at conventions will be
paid by USSC. Lorad will be able to provide appropriate personnel at conventions
for equipment demonstration at Lorad's discretion.
7. Support.
(a) Lorad will provide stereoguide tables and product support for formal
physician and/or sales training at USSC's headquarters. Lorad's support
responsibility will consist of shipment of demonstration tables to
USSC, set-up, dismantle, and return shipment. In addition, Lorad will
provide appropriate personnel for the training. The number of training
programs will be mutually agreed upon between Lorad and USSC. As of the
Effective Date, all new customer application and re-application
stereotactic operational training for the Current Inventory Tables will
be Lorad's responsibility and expense. Application and re-application
device training on Current Inventory Tables, i.e, MIBB/ABBI training,
will be performed by USSC personnel at USSC's cost or, alternatively,
at USSC's discretion, a purchase order will be issued by USSC to Lorad
requesting Lorad to perform such training. At Lorad's discretion, Lorad
will include tuition for up to **** (*) physicians at a rate up to
$**** per physician with the purchase of a full Current Inventory Table
by any one of the following institutions: Xxxxx Xxxxxxx (MD), Xxxxxxx
Center (FL), Cabrini Center (NY), St. Xxxxxx (FL), Rose (CO), Tuckahoe
(VA), University of Nebraska (NE), Good Samaritan (AZ), and any other
institutions with CME accredited programs.
(b) Additional support from Lorad will include the following:
(i) **** (*)days versus ***** (*) days of operational and device
applications on-site training when a sold Current Inventory Table
includes an ABBI and a MIBB device;
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(ii) ***** (*) days of operational and device applications on-site
training when a sold Current Inventory Table includes a MIBB only
device
(iii) *** (**) Windows NT upgrades for selected USSC demonstration and
training systems, at Lorad's expense;
(iv) **** (*) DSM Windows NT upgrades to support USSC trade show units,
at Lorad's expense; and
(v) re-application requests for the first ***** (**) USSC customers
following the date of this Agreement will be re-priced from travel
and expense plus $*** per day to travel and expense plus $*** per
day.
(c) The ****** (**) Tables in USSC inventory that are stereotactic table
only units will be refurbished by Lorad so that such Tables meet the
specifications for such tables as of the date of original manufacture.
These ****** (**) Tables will not be subject to Lorad's current standard
warranty but will be subject to a warranty to be reasonably determined by
Lorad after inspection of such Tables based on the current condition of
such Tables. In the event any of these Tables are sold to Novation the
warranty will be the warranty established by Lorad pursuant to the
foregoing sentence as opposed to Lorad's standard customer warranty.
(d) USSC shall compensate its sales representatives at the rate of $****
per stereotactic table sold ($**** if such table includes a MIBB) with
respect to sales of stereotactic tables sold (irrespective of installation
date) on or prior to ******* *, ****. USSC and Lorad shall cooperate in
good faith to jointly develop on or before September 15, 1999 a mutually
acceptable quarterly sales program to compensate their respective sales
organizations in connection with sales of stereotactic tables sold after
October 1, 1999. The parties acknowledge and agree that the purpose of
these payments is to improve the working relationship between Lorad and
USSC field personnel in selling stereotactic tables and related consumable
devices.
8. Novation Contract.
(a) Lorad will make Tables available to USSC to enable USSC to honor its
contract with Novation for a period of 36 months commencing as of
the date of this Agreement. USSC may buy Tables from Lorad for the
account of USSC for supply to Novation for $***** per Table as
currently configured in USSC's inventory as of the date of this
Agreement. USSC will not buy Tables from Lorad where orders for
stereotactic tables are accepted by USSC for the account of Lorad as
outlined in Section 8(b) below. Lorad will be responsible for
payment of dealer compensation and installment costs of $***** for
each stereotactic table sold to Novation. The stereotactic tables
sold to Novation will reduce the Additional Consideration as
described in Section 2 above. Tables sold to Novation will in the
first instance be supplied from the Tables repurchased from the USSC
inventory; provided that Lorad
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reserves the right at Lorad's discretion to supply tables sold to
Novation from other Lorad inventory. Lorad will pay any dealer
warranty and installation fees directly arising pursuant to the
terms of the Novation Contract (as such contract in effect as of the
date hereof and reviewed by Lorad prior to the date hereof). Subject
to Section 7(c), the warranty on tables sold to Novation will be
Lorad's current standard customer warranty and will begin at date of
installation.
(b) USSC agrees that every other order for a stereotactic table received
by USSC from Novation will be accepted for the account of Lorad. For
example, if Novation orders five tables from USSC, tables one,
three, and five shall be for the account of USSC and tables two and
four shall be accepted for the account of Lorad and assigned to
Lorad. In connection therewith, for sales accepted for the account
of Lorad, Lorad shall be entitled to, and USSC shall pay or require
Novation to pay to Lorad directly, the initial deposit of $*****
required under the Novation Contract as well as the monthly lease
payments (including any late fees, penalties, or interest which may
accrue thereunder) in respect of such table for the term of the
lease (including any extensions or renewals to such lease). Any
payments received by USSC from Novation in respect of sales accepted
for the account of Lorad shall be held in trust for Lorad and
forwarded to Lorad within fifteen (15) business days of receipt.
Payments received by USSC but not forwarded to Lorad within fifteen
(15) business days 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. Upon
Lorad's request, USSC shall provide a written accounting of Novation
orders to Lorad.
(c) USSC guaranties all payments due to Lorad in respect of Novation
sales or leases accepted by USSC for the account of Lorad and USSC
agrees to pay to Lorad all amounts owed in respect of such leases
regardless of whether such amounts have actually been received by
USSC from Novation USSC agrees to indemnify and hold harmless Lorad
(or any of its affiliates or successors and assigns) from and
against any and all liability, loss, damage and expense in
connection with, or arising out of, Lorad's agreement, at the
request of USSC, not to seek the prior written approval of Novation
with respect to the arrangements set forth in this Section 8 or
elsewhere in this Agreement.
9 (a). Installed Base. Lorad has supplied USSC with a list of the current
installation base of stereoguide tables and will update this list regularly.
USSC may work directly with Lorad distributors to develop an incentive program
to promote the packaging of MIBB's with Lorad tables.
9 (b). Charitable Donations. USSC will retain ** stereotactic tables
manufactured by Lorad with serial numbers as listed on Schedule 9(b) hereto in
its inventory for
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previously committed hospitals as charitable donations or competitive system
(e.g., Xxxxxxx) tradeouts (the "Charity Tables"). The end-user and USSC shall be
responsible for all costs of installation, training, support, warranty,
applications, and service in respect of Charity Tables. Lorad shall have no
responsibility, liability, or obligation in respect of Charity Tables. USSC
agrees to indemnify and hold harmless Lorad (or any of its affiliates or
successors and assigns) from and against any and all liability, loss, damage and
expense in connection with the Charity Tables or any other tables other than the
Tables. USSC shall apply the FIFO inventory method to the Charity Tables. The
Charity Tables shall be comprised of the oldest manufacture date tables.
10 (a) ABBI Upgrade. Lorad will allow USSC to sell ABBI upgrade kits that will
enable all stereoguide tables manufactured by Lorad existing as of the date of
this Agreement that are already installed in the field (or already sold by USSC
but not yet installed in the field) without an ABBI kit to utilize the ABBI. The
ABBI upgrade kit will be available to USSC for $***** per table unit and *****
will be responsible for compensating Lorad dealers for installation and
calibration at their customary prices and for providing *** (*) days operational
and device application training for each new customer. Lorad dealers will also
be able to sell the same kit to end customers.
10 (b) DSM Upgrade. USSC shall be entitled to purchase up to *** (*) new DSM NT
workstation upgrades for the purpose of upgrading USSC customers that USSC/Lorad
have committed to upgrade. USSC will be entitled to purchase the DSM NT upgrade
for a per unit price of $***** on or before **** *, ****.
10(c) New MIBB Purchases by Lorad. USSC agrees to sell MIBB devices to Lorad for
a purchase price per unit equal to $**** for a period ending on the first
anniversary of the date of this Agreement. Thereafter the price for such devices
shall be mutually agreed upon by the parties.
10(d) Lorad Warranty. Lorad agrees to provide its current standard warranty to
all Lorad manufactured stereotactic tables previously sold by USSC (other than
Charity Tables for which Lorad provides no warranty whatsoever) but not
installed as of the date hereof for a period of twelve (12) months commencing on
the date of installation. Warranty on Lorad manufactured stereotactic tables
previously sold by USSC and installed on or prior to the date of this agreement
shall remain subject to Lorad's standard product warranty for a period of twelve
months commencing the date such tables were first installed.
11. Business Relationship. Lorad and USSC will work together to develop a plan
to educate their respective sales forces and the Lorad dealer distribution
network regarding the new Lorad/USSC relationship. This plan will set forth
clearly defined roles and responsibilities to facilitate sales to qualified
prospects. USSC will compensate USSC table specialists and full line
representatives for table prospects that result in sales of stereotactic tables
through Lorad. Lorad will not owe any commissions in respect of any such sales.
The parties' relationship shall not be construed to constitute a partnership or
joint venture. Neither party shall have the right to enter into any contracts
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or commitments in the name of or on behalf of the other party, or to bind the
other party in any respect whatsoever. Lorad shall use reasonable commercial
efforts to supply USSC with a prospect listing for potential ABBI/MIBB
installations. USSC and Tyco shall use reasonable commercial efforts to supply
Lorad with a prospect listing for potential stereotactic table sales.
12. No Other Agreements. This Agreement constitutes the full and complete
agreement of the parties with respect to the subject matter and supersedes all
prior understandings, agreements, and communications (whether oral or written)
by and between the parties pertaining to such subject matter, including without
limitation the Distributorship Agreement and the letter of intent dated January
4, 1999 between Lorad and USSC.
13. Public Announcements. This Agreement is confidential and may not be
disclosed by any party, provided however, each of the parties may, to the extent
required by law or applicable stock exchange rules, make disclosures regarding
the transactions contemplated by this Agreement, including the signing hereof.
14. Expenses. The parties will each bear entirely their respective out-of-pocket
expenses incurred in connection with this Agreement including legal and other
fees.
15. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts (without reference to conflict or choice of law
provisions). The parties each consent to the jurisdiction of the federal and
state courts of the Commonwealth of Massachusetts with respect to any disputes
arising under this Agreement, or the transactions contemplated hereby or
thereby.
16. Successors and Assigns. This Agreement, and each and every provision hereof,
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or referred to in this
Agreement will be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their respective successors and assigns.
17. Amendments. This Agreement may be amended, modified, or supplemented only by
a written instrument executed by each of the parties.
18. No Waiver. The failure of any party to insist upon strict performance of a
covenant hereunder or of any obligation hereunder, irrespective of the length of
time for which such failure continues, shall not be a waiver of such party's
right to demand strict compliance in the future. No consent or waiver, express
or implied, to or of any breach or default in the performance of any obligation
hereunder, shall constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation hereunder.
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19. Limitation of Liability. No party shall be entitled to recover from any
party any special, incidental, consequential or punitive damages in respect of
any damages or loss that may result from any failure by any party to perform
such party's obligations hereunder.
20. Severability. The invalidity or unenforceability of any particular provision
of this Agreement will not affect the other provisions hereof, and this
Agreement will be construed in all respects as if such invalid or unenforceable
provision were omitted.
21. Survival. The representations and warranties set forth in this Agreement
shall survive the closing of the purchase and sale contemplated by this
Agreement.
22. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
23. Further Assurances. The parties agree (a) to furnish upon request to each
other such further information, (b) to execute and deliver to each other such
other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement.
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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/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: President
UNITED STATES SURGICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx XX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
TYCO HEALTHCARE GROUP, LP
By: /s/ Xxxxx X. Xxxxxx XX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, US Surgical Division
