FY 2000 IMATRON INC. FORM 10-K
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Exhibit 10.33
DISTRIBUTORSHIP AGREEMENT
among
IMATRON INC., MEDITEC CORPORATION AND MARUBENI CORPORATION
10. November , 2000
THIS AGREEMENT is entered into as of November 10, 2000 by and between
IMATRON INC., a corporation organized under the laws of the State of New Jersey
with its principal office at 000 Xxxxxx Xxxxx Xxxx., Xxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("Imatron"), MEDITEC CORPORATION, a
corporation organized under the laws of Japan, with its principal office at
0-00, Xxxxx-Xxxxxx, 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx ("Importer") and MARUBENI
CORPORATION, a corporation organized under the laws of Japan, with its principal
office at 0-0, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx ("Distributor"),
WITNESSETH:
WHEREAS, Imatron desires to appoint Distributor as the exclusive
distributor of the Products (hereafter defined) and appoint Importer as the
exclusive importer and service provider of the Products in the Territory
(hereafter defined);
WHEREAS, Distributor desires to accept such appointment and to perform
the duties and obligations as hereinafter set forth; and
WHEREAS, Importer desires to accept such appointment and to import into
the Territory and sell the Products to Distributor;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto hereby agree as follows:
1. Appointment of Importer and Distributor.
(a) Appointment. Imatron hereby appoints (i) Importer as its
exclusive importer to import the Products into the Territory and as its
exclusive service provider in the Territory and (ii) Distributor as its
exclusive distributor in the Territory for the Imatron EBT Scanner systems
including spare parts and all options and accessories as shall be offered for
sale by Imatron. A complete Imatron EBT Scanner system is hereinafter referred
to as a "System" and Systems together with spare parts, options and accessories
are collectively referred to as "Products" which expressions include all of
their modifications, developments and improvements and new CT scanner systems
invented or developed and for sale by Imatron. The specifications of a basic
complete System are set forth in APPENDIX A hereto.
(b) Territory. The geographical area to which this Agreement
pertains is the country of Japan ("Territory"). Imatron agrees that during the
term of this Agreement it will not authorize any other importer to import the
Products into the Territory nor any other distributor to sell the Products in
the Territory nor export the Products into the Territory nor will it sell the
Products (either directly of indirectly) to any purchaser or importer that
intends to export the Products into the Territory. During the term of this
Agreement, Distributor agrees it will neither sell nor service the Products
outside the Territory, nor will Distributor sell the Products (either directly
or indirectly) to any purchaser that intends to distribute the Products outside
the Territory, unless specifically authorized in writing by Imatron. Distributor
agrees not to distribute or sell products acquired from any other person which
are similar to the Products if distribution or sale by Distributor of such
similar products are competitive with distribution or sale of Products. Imatron
agrees to refer to Distributor all inquiries or orders for the Products received
from any person, firm, or company residing or carrying on business in the
Territory.
(c) Term. The term of this Agreement shall commence on the
date set forth above and shall continue until December 31, 2003. This Agreement
shall immediately terminate upon written notice to such effect by either party
hereto to the other parties, without the necessity of prior advance notices, (i)
in the event of such other party's voluntary or involuntary bankruptcy or
insolvency, (ii) in the event that such other party shall make a general
assignment of its property for the benefit of a creditor or (iii) in the event
that a petition shall have been filed against such other party under a
bankruptcy law, any other law for relief of debtors, or other law similar in
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purpose or effect, the effect of which is to cause such other party to have its
business effectively discontinued. This Agreement shall immediately terminate
upon written notice to such effect by Imatron to the other parties, without the
necessity of prior advance notice, in the event Distributor or Importer shall be
in default in the payment of any amounts due Imatron hereunder for the sale of
Products, or any parts thereof, or for the providing of services.
(d) Payment. In consideration for (i) the appointment by
Imatron of Importer and Distributor as its exclusive importer and distributor
respectively pursuant to this Paragraph, (ii) the arrangement to be rendered by
Imatron pursuant to Paragraph 2, and (iii) the transfer of the Homologation
rights for the System pursuant to Paragraph 22 and other rights, title and
interest set forth in the Transition Agreement (hereafter defined) from Imatron
to Distributor by Imatron, Distributor agrees to pay to Imatron sum of
Yen500,000,000.-. Yen250,000,000.- out of Yen500,000,000.- shall be paid within
ten(10) days following the execution of this Agreement. The remaining
Yen250,000,000 shall be paid within ten(10)days following the effective date of
transfer of Homologation rights to Distributor.
2. Transition from Previous Distributor.
(a) Assignment. In consideration for the payments set forth in
Section 1(d), above, Imatron assigns and transfers to Distributor without
payment to Imatron, all of its rights, title and interest in and to that certain
Transition Agreement dated Oct 5th, 2000 (the "Transition Agreement") between
Imatron and Imatron Japan INC., a corporation organized under the laws of Japan,
with its principal office at 0-0-0 Xxxxxxxxxx Xxxx-xx, 000-00000, Xxxxx, Xxxxx
("IJ" ) pursuant to the terms and conditions of an Assignment and Assumption
Agreement to be entered into simultaneous herewith in the form of APPENDIX B
hereto ("Assignment and Assumption Agreement").
(b) Assumption of Obligations. In consideration for the
transfer as provided in Paragraph 2(a) above and strictly subject to and
pursuant to the terms and conditions of the Assignment and Assumption Agreement,
Distributor agrees to assume and perform all of Imatron's obligations under the
Transition Agreement save for (i) the obligations which can logically be
performed solely by Imatron such as (without limitation) the obligation to
continue to provide replacement parts under Clause 4 of the Transition Agreement
(which shall therefore be performed by Imatron) and (ii) the obligations which
cannot be performed by Distributor without assistance of Imatron (which shall
therefore be performed by Distributor with necessary assistance of Imatron);
provided, however, that Distributor is not liable to perform any obligations
arising from the Service Contracts for any reasons having its origin prior to
the Closing Date (as defined in the Transition Agreement) and further Imatron
shall hold harmless Distributor and Importer from any claims, losses or damages
incurred on account of or based on the Service Contracts as they relate to the
period prior to the Closing Date.
(c) Transition of Employees. In connection with the transfer
of service responsibilities for the installed based of Imatron EBT scanners in
Japan from Imatron to the Distributor, Imatron agrees to use its best efforts to
transfer to the Distributor the one (1) service manager and the four (4) service
employees currently employed by Imatron. Distributor agrees to employ such
employees on terms and conditions not less favorable than currently in place
with such employees. Imatron does not guaranty that any or all the transferred
employees will accept employment by Distributor.
3.1
3. Duties of Distributor and Importer. In addition to all other duties
herein set forth, Distributor shall have the following obligations:
(a) Solicitation of Orders. Distributor shall use its best
efforts in soliciting orders for and selling the Products for delivery to
customers within the Territory.
(b) Annual Target. As a target, Distributor shall use its
reasonable efforts to purchase from Imatron through Importer fifteen (15)
Systems, the breakdown of which are four (4) Systems during Y2001, five (5)
Systems during the second year, and six (6) Systems during the third year
(respectively, "the Target Quantity").
(c) Prompt Payment. Importer shall promptly comply with all
terms and conditions of sale described hereunder, including without limitation,
prompt payment of the price of the Products sold to Importer by Imatron. Payment
shall be made according to the following schedule: Sixty days prior to delivery
of each System, Importer shall provide a letter of credit for the full amount of
each System. Such letter of credit shall provide for partial shipments. The
service and spare parts terms shall be net 30 days.
(d) Advertising and Mailing Lists. Importer shall advertise
the Products to such an extent, and in such media, as is reasonably necessary to
encourage the sale of the Products in the Territory. Importer agrees that it
will not advertise the sale of the Products, without first submitting (fully
translated into English) such
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advertising to, and obtaining Imatron's written approval thereof , which
approval in all instances shall be contingent upon the entire cost of said
advertising being paid by Importer, unless otherwise agreed to in writing by
Imatron. Importer shall accept all liability, and hold Imatron harmless, for the
content of any advertising it shall publish or distribute in Japan without
Imatron's written approval. Importer shall develop and maintain a mailing list
of existing and prospective customers within the Territory, and shall
periodically mail advertising literature to said customers.
(e) Sales Force and Service Personnel. Distributor shall at
all times maintain an adequate staff of sales personnel reasonably necessary to
carry out the obligations of Distributor under this Agreement, and Importer
shall fully train such sales personnel with respect to all pertinent aspects of
the Products. Importer shall also train and maintain such service and
installation personnel as are necessary to service the installed base of Systems
in Japan and as otherwise necessary for the performance of Importer's service
obligations under this Agreement.
(f) Sales Reports. Distributor shall make quarterly written
reports on the sale and distribution of the Products and Distributor's business
activities in promotion and distribution thereof, together with information on
the market situation of the Territory, including:
(i) Names of active sales prospects.
(ii) Government regulations affecting the Products.
(iii)Competitive products and competitor's activities.
(iv) Commonly experienced component failures and
service problems.
(g) Other Duties of Distributor. Distributor shall at all
times maintain sales data on the Products, including price lists, catalogs and
technical bulletin files. Distributor shall accept and service all sales
inquiries with respect to the Products relating to possible sales within the
Territory. Distributor and Importer shall not in any way, directly or
indirectly, disparage Imatron or any of Imatron's products.
(h) Installation. Importer shall be responsible for all costs
of installation, customer warranties and applications training of Systems
purchased pursuant to this Agreement. Imatron shall provide a limited warranty
with regard to parts during the warranty period.
(i) Alteration of Products. Distributor shall not alter
Products in any way without written consent by Imatron.
(j) Prohibition on Manufacture or Sale of the Products.
Distributor shall not engage in the manufacture or sale of any products which
are now or in the future may be competitive, with the Products covered in this
Agreement in the Territory.
(k) Prohibition on Purchase and Sale of Used Products. During
the term of this Agreement, Distributor shall not engage in the purchase and/or
sales of used Systems within or without the Territory with the exception of any
System sold by Distributor during the term of this Agreement.
3.2
4. Individual Contract and Other Conditions. The detailed terms and
conditions of each individual purchase of the Products hereunder by Importer
from Imatron, except the following conditions, shall be mutually agreed upon at
the time of each such purchase and confirmed by such parties in a "Confirmation
of Purchase Contract" (the form of which is attached hereto as APPENDIX C and
made an integral part hereof) to be issued by Importer to Imatron and
countersigned and returned by Imatron.
Each such individual purchase contract between Imatron and Importer shall be
deemed to incorporate all of the terms and conditions hereof to the extent that
they may be applicable; provided, however, that the terms and conditions of this
Agreement shall, in the event of a conflict, have precedence over those on the
reverse side of the "Confirmation of Purchase Contract". The failure by Imatron
to return any countersigned "Confirmation of Purchase Contract" within thirty
(30) days after dispatch by Importer shall be deemed an acceptance thereof by
Imatron.
(a) Prices. Except as may otherwise be agreed between the
parties, the price of each System FOB Imatron dock, South San Francisco,
California, U.S.A. shall be United States Dollars One Million Seven Hundred
Thousand (US$1,700,000). Prices for add-ons and optional products shall be the
prices established from time to time by Imatron. The current prices for such
add-ons and optional products are set forth in APPENDIX A. In case the quantity
of the Systems which Distributor has purchased from Imatron through Importer
exceeds the Target Quantity in each year set forth Paragraph 3(b), the price of
the excess Systems for such year shall be reduced to United States Dollars One
Million Five Hundred Thousand (US$1,500,000). Should the exchange rate of the
Japanese Yen devaluate against the U.S.Dollar at the date of placing an order to
Yen120 or less, Imatron shall compensate the Distributor's exchange loss between
the actual rate at the date of placing an order and Yen120.
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Should the exchange rate of the Japanese Yen evaluate against the U.S Dollar at
the date of placing an order to Yen100 or more, Imatron shall increase the
System price by the percentage of evaluation between Yen100 and actual rate at
the date of placing an order.
(b) No Liability for Late Deliveries. Imatron will not be
liable for any penalty clause from customers accepted by Distributor unless
Imatron has agreed in writing to this clause at the time of order
(c) Customs. Importer shall be responsible for customs
clearance on the Products and components being imported into the Territory.
(d) Taxes. The prices specified in this Agreement are
exclusive of any sales, use, excise; or similar taxes (other than any federal or
state taxes on net income of Imatron), and of any export and import duties,
which may be levied upon or collectable by Imatron as a result of the sale,
lease or shipment of the Products to Importer, or its customers, any services
performed by Imatron in connection herewith, and use, resale or sublease of the
Products by Importer or its customers. Importer agrees to pay and otherwise be
fully responsible for any such taxes and duties, unless in lieu thereof Importer
provides Imatron with an exemption certificate acceptable to the relevant
governmental authorities. Imatron shall have the right, but shall not be
obligated to pay any such taxes or duties directly, in which case Importer shall
immediately reimburse Imatron in the amount thereof upon presentation by Imatron
of evidence of payment.
5. Changes in Products.
(a) Right to Make Changes. Imatron may, at any time, either
add to, delete, or change any of the Products pursuant to any updating,
obsolescence, or other change in the Products occurring within the ordinary
course of business. Imatron will notify Importer of any such change as soon as
practicable. However, if such change results in impossibility or difficulty for
Importer to import the Products under Japanese law or the necessity of obtaining
of a new license or amendment to the existing license for import to the
Territory, Distributor may accordingly amend the Target Quantity.
(b) Training. Imatron agrees to provide additional training
for designated Distributor or Importer personnel at mutually agreed upon rates
where this becomes necessary because of changes made to the Products.
6. Warranty and Warranty Service.
(a) Limited Warranty. Imatron warrants to Distributor that the
Products provided in accordance with the terms hereof shall be free from defects
in material and workmanship and in any event comply with the requirements
specified by the Ministry of Health of Japan. The foregoing warranty (i) in the
case of new Systems shall be for a period of twelve (12) months from the date on
which the Products are put into operation with the exception of any options or
parts so noted in APPENDIX A and (ii) in the case of refurbished Systems and
renewal and/or replacement parts shall be for ninety (90) days from installation
or until termination of the System warranty period, whichever is longer. This
warranty pertains to all parts failing in the course of normal operation. It
does not cover parts modified without the prior authorization of Imatron or
parts damaged due to mishandling or misuse or failure to operate and maintain
the Products in accordance with the operating manuals and specifications
supplied to Importer or Distributor. Notwithstanding the foregoing, Imatron
makes no warranty with regard to options or accessories purchased from other
vendors but agrees to assign to Distributor any warranties received by Imatron
from its suppliers for such options and accessories. The AccuImage Workstation
is warranted as a part of the System.
EXCEPT AS SET FORTH ABOVE, IMATRON MAKES NO REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. DISTRIBUTOR ACCEPTS THE PRODUCTS SOLELY ON THE BASIS OF THE WARRANTY
EXPRESSED ABOVE.
(b) Sole Remedy. In the event any Product or part thereof
fails to meet the foregoing warranty during the specified warranty periods,
Imatron's sole responsibility and Distributor's and Importer's sole remedy shall
be for Imatron, at its sole cost and expense, to supply Distributor with
replacement parts for any Product or part thereof which fails to meet the
warranty. Importer shall be responsible for the installation labor and return of
the defective components to Imatron. All other costs of fulfilling warranty
obligations to customers, including (without limitation) labor, installation
costs and customer training, shall be borne by Importer. Imatron shall be
responsible for return freight charges for the defective parts. Distributor will
inform Imatron when and where Products are installed.
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(c) Product Liability. Imatron shall defend, indemnify and
hold harmless Importer, Distributor and/or any of its customers for the Products
from and against any and all costs, expenses, losses, damages or liabilities
arising out of or in relation to any claim made or threatened to be made by any
third party based on any death, bodily injury or property damage occurring
directly or indirectly out of the Products ("Liabilities"), including without
limitation, a claim based on the "Product Liability Act" of Japan Law No. 85
promulgated on July 1, 1994, as it may be amended, but excluding any Liabilities
resulting from actions or negligence of Distributor or Importer. Imatron shall,
prior to the shipment of the Products hereunder, procure and maintain a policy
of insurance, at its sole cost, from a reputable insurance company acceptable to
Distributor covering the Liabilities. A copy of such policy of insurance shall
be sent to Distributor immediately.)
(d) Regulation Changes. If applicable regulation changes in
the future and any conforming change becomes necessary, Imatron shall carry out
such change upon such terms as may be agreed between the parties.
7. Limitation of Liability IN NO EVENT, WHETHER AS A RESULT OF BREACH
OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR
ANY OTHER KIND, AND STRICT LIABILITY) OR OTHERWISE, SHALL IMATRON BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR BUSINESS INTERRUPTION DAMAGES
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE
PRODUCTS OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF
CAPITAL, DOWN TIME COSTS, OR CLAIMS OFDISTRIBUTOR'S CUSTOMERS.
8. In Country Training. Imatron will hire and train an "in country"
Imatron Sales Manager to assist with all sales in the Territory and also assist
to train Importer or Distributor Sales staff on an ongoing basis during the term
of this Agreement.
9. Spare and Replacement Parts.
(a) Obligation to Maintain Inventory. Distributor agrees to
maintain a sufficient quantity of spare parts to fulfill Distributor's
obligations to its customers, such quantity of spare parts to be mutually agreed
upon by the parties and reflected in a separate agreement containing all terms
and conditions relating thereto including, but not limited to, quantity,
purchase price, payment of purchase price, return of spare parts, and use of
substitute spare parts.
(b) Substitute Spare Parts. Distributor shall have the right
to purchase and use spare parts manufactured by third parties ("Substitute Spare
Parts") provided that the Substitute Spare Parts must meet Imatron's
specifications and are not used unless and until Imatron has tested and approved
each of such parts.
10. Software Updates and Options.
(a) Updates and Options. System software updates may be
provided as optional products for sale, or without charge as standard system
software features, at Imatron's option. For software provided without charge,
Imatron shall supply electronic media and supporting documentation equal to the
number of systems installed by Importer or Distributor. For software options
offered for sale by Imatron, electronic media and supporting documentation will
be provided only for the institution ordering the software option. All software
updates and options are offered subject to execution and delivery of appropriate
Imatron User License Agreements attached as APPENDIX D and made an integral part
hereof.
(b) Limitations. Imatron shall not be obligated to provide
software updates or options:
(i) For any Product which has not been upgraded or
modified in accordance with safety recommendations or hardware requirements to
implement required safety recommendations;
(ii) If, beyond five (5) years from the date at which
the software product was last shipped as a standard production product; and
(iii) For any Product for which obsolete computer
hardware is no longer manufactured. 11. Training and Support.
(a) Training and Service Support. Imatron agrees to provide
the following additional services:
(b) Applications Training. Distributor will provide
applications training for its customers at completion of the installation and as
required thereafter. Alternatively, if requested by Distributor, Imatron will
provide applications training at the customer's site at the weekly rate for
applications training (which is currently $5,000.00) plus travel and lodging
expenses.
(i) Service Training. In addition to its obligations
pursuant to Paragraph 3 of this Agreement, Distributor agrees to maintain a
staff of service personnel trained in the theory, installation, repair and
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maintenance of the Products. The number of service personnel will be adequate to
provide service coverage to all customers within the Territory.
(ii) Service Support. If requested by Distributor,
Imatron service engineers will be available to provide on-site support at the
customer's site. The cost of such service will be billed at the current
published rate plus travel and lodging expenses.
(iii) Sales Support. Imatron agrees to provide
Distributor through Importer with adequate quantities of advertising materials
and other sales and promotion aids. Distributor may use their own collateral
materials on approval by Imatron. Distributor shall be responsible for the costs
of translation, duplication and distribution of all advertising materials and
other sales and promotion aids.
12. Relationship of Parties. The relationship of the parties is
respectively that of vendee and vendor. Nothing herein contained shall be deemed
to create an agency, joint venture or partnership relation between the parties
hereto. It is understood and agreed that each party is not, by reason of this
Agreement or anything herein contained, constituted or appointed the agent or
representative of any other party for any purpose whatsoever, nor shall anything
herein contained be deemed or construed as granting to such party any right or
authority to assume or to create any obligation or responsibility, expressed or
implied, for, on behalf of or in the name of other parties, or to bind any other
party in any way or manner whatsoever.
13. Assignment of Agreement.
(a) Prohibition on Assignment. Neither this Agreement nor any
interest herein is assignable by any party, whether by way of assignment,
operation of law or otherwise, without the prior written consent of the other
party hereto. Any attempted assignment or transfer by any party without the
prior written consent of the other party hereto shall forthwith terminate and
cancel this Agreement and all rights of any party thereunder. Notwithstanding
the foregoing, Distributor may assign this Agreement or any part hereof to
Importer.
(b) Transfer of Control. Transfer of a controlling interest in
Distributor to a party not in control at the time of execution of this Agreement
shall be deemed an assignment of this Agreement for purposes of the restrictions
set forth in this Paragraph.
14. Patents and Trademarks.
(a) No Rights to Patents. No rights are granted hereunder to
Importer nor Distributor under any of Imatron's patents, patent applications,
trademarks or other intellectual property.
(b) Rights to Use Trademarks. Importer and Distributor shall
have the right to use, in connection with and only in connection with the
marketing of the Products under this Agreement, the name of the Products and any
trademarks, trade names and service marks derived from any of said names or
related thereto in the form and manner as approved by Imatron (collectively, the
"Licensed Names"). Imatron represents that the Licensed Names set out in
APPENDIX E have been duly registered in the Territory and none of them has been
challenged by any third party. Imatron reserves all rights for itself in and to
the Licensed Names, and all goodwill associated therewith whether or not arising
out of this Agreement. Importer and Distributor will cause to appear on all
materials, on or in connection with which any of the Licensed Names are used by
them, such legends, markings and notices or their equivalent, as Imatron may
request in order to give appropriate notice of any trademark or other rights
therein or pertaining thereto.
(c) Software Licenses. Imatron hereby grants to Importer and
Distributor a limited, exclusive within the Territory, non-transferable license
to use any software delivered pursuant to this Agreement (the "Software"), only
with and on the Products. Simultaneously with its execution and delivery of this
Agreement, Importer and Distributor will execute and deliver to Imatron a User
License Agreement. Importer and Distributor shall have the right to grant to
customers to whom Distributor sells the Products a license for the use of the
Software on the Products. Distributor shall cause any customer to whom it sells
Products to sign a User License Agreement prior to any sale. Distributor shall
promptly forward to Imatron a copy of each such signed User License Agreement.
(d) Infringement. Imatron hereby represents and warrants with
Distributor that none of the Products sold or to be sold to Distributor through
Importer nor any of Licensed Marks nor Software shall infringe any right of any
third party, and Imatron hereby indemnifies and keeps harmless Importer and
Distributor or customers against any loss or damage suffered by Importer,
Distributor or such customers or any claims made by any third party against
Importer, Distributor or such customers arising due to any infringement by the
Products or Licensed Names or Software of any right of any third party.
15. Confidentiality.
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(a) Confidentiality. All Proprietary Data, as hereinafter
defined, disclosed by any party to the other party(ies) in pursuance of this
Agreement, during the continuance of this Agreement and for two (2) years after
its expiration or its termination, shall be kept confidential and the party(ies)
to which the same have been disclosed shall take all necessary precautions to
prevent their disclosure to third parties. The parties to this Agreement shall
have the right to disclose such information to any of their affiliates, provided
that any such affiliate receiving such information shall agree to be bound by
the provisions of this Paragraph 15 and provided further, the disclosing party
shall agree to be responsible for the actions of its affiliates. In the event of
any breach of this covenant by any party, such breaching party shall be
responsible for all damages resulting therefrom.
(b) Exceptions. The provisions set forth in Paragraph 15(a)
shall not apply to:
(i) Any such information which at any time after its
disclosure by one party to the other party(ies) falls into the public domain,
except as a result of the fault of the party(ies) to which it was disclosed; or
(ii) Any such information which at the time of its
disclosure was known to the party(ies) to which it was disclosed, as evidenced
by written records; or
(iii) Any information that customers of each party or
regulatory bodies can reasonably request be disclosed to them, provided that
such party shall exert its best efforts to cause said customers or regulatory
bodies to agree to hold such information confidential.
(c) "Proprietary Data". The term "Proprietary Data" is used in
this Agreement to mean information, as well as data in written, graphic or
machine-readable or machine-executable form or in oral form, which is received
by one party from other parties and is identified as being proprietary,
confidential or a trade secret, and shall include, the Products, all technical
manuals relating to the Products, and all know-how and technology required to
utilize the Products and such manuals, as well as other information not
generally known in the trade, including, without limitation, inventions,
developments, specifications, pricing information, new product plans, methods,
supply sources, customers lists, costs, marketing plans, technical and
engineering data, and methods and reports relating to the business of the
disclosing party. Each party agrees that it will use the Proprietary Data only
to perform its required obligations hereunder and agrees to take all steps
necessary to keep confidential, and prevent the disclosure to and/or use by
third parties of any and all Proprietary Data which it may acquire. Without
limiting the generality of the foregoing, each party agrees to take such actions
(including, without limitation, instituting legal proceedings) as may be
necessary to prevent disclosure of Proprietary Data by its present and former
employees, agents and independent contractors. Each party shall provide to other
parties such information and data, and permit the receiving party to review and
copy all such agreements, as such receiving party shall reasonably request in
connection with any investigation of compliance with the foregoing obligations
of confidentiality.
16. United States Law and Regulations. Nothing contained in this
Agreement shall be construed to require either party to do, and Distributor
shall not directly or indirectly do, any act or thing that will or could
constitute a violation of the Export Control laws or other laws and regulations
of the United States of America. It shall be Imatron's responsibility to obtain
all necessary export licenses. Distributor is obligated to supply the
appropriate import certificates.
17. Exclusive Dealing. During the term of this Agreement neither
Importer, Distributor nor its officers, agents, servants or employees shall, at
any time, directly or indirectly, perform any service or be employed by or
become associated in any capacity with any person, firm or corporation competing
with or setting up to compete with Imatron in the Territory in the manufacture
or sale of goods similar to the Products. Nor, during the term hereof, shall
Imatron, directly or indirectly, compete similarly with Distributor in the sale
of the Products, and accordingly, Imatron shall not, directly or indirectly,
license any person to make, use, or sell the Products other than Importer and
Distributor in the Territory. The obligations of this Paragraph 17 shall not
apply to the officers, agents, servants and employees of Importer, Distributor
or Imatron after said persons are no longer employed by Importer, Distributor or
Imatron.
18. Termination.
(a) Notice of Termination. Unless otherwise stated herein if
any party to this Agreement should breach any obligation herein or in any
individual contract to be entered hereunder, the non-defaulting party may give
written notice to the defaulting party specifying the respect in which the
defaulting has breached this Agreement or any individual contract. In the event
that such breach is not remedied within thirty (30) days after such notice, the
non-defaulting party may, by written notice to the defaulting party, terminate
this Agreement or any individual contract effective immediately. The failure of
the non-defaulting party to so terminate this Agreement or
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any individual contract due to a breach on the part of the defaulting party
shall not constitute a waiver of its right to terminate on the basis of any
subsequent breach.
(b) Duties of Parties Upon Termination.
(i) Upon termination of this Agreement or any
individual contract each party shall perform all obligations, including
warranty, service and spare part supply, incurred prior to the effective date of
such termination and all indebtedness of each party to the other shall become
immediately payable.
(ii) The parties acknowledge and agree that the
Homologation rights for the Systems which rights are being transferred from IJ
to Imatron and then from Imatron to the Distributor belong solely to Imatron and
are assigned by Imatron to the Distributor solely for the purpose of its
distribution of the Products pursuant to this Agreement. Upon termination of
this Agreement for any reason such rights shall revert to Imatron and the
Distributor shall take all actions which may be deemed reasonably necessary in
order to transfer such rights back to Imatron.
(iii) No party hereto shall be liable to any other
for damages of any kind resulting from, or caused by, said termination
including, but not limited to, damages related to losses through commitments on
obligations or leases, loss of investment, loss of present or prospective
profits, inability to meet obligations, or any other causes or reasons
whatsoever.
(iv) Imatron shall in any case continue for a period
of seven (7) years following termination of this Agreement to make available to
Distributor's customers all necessary spare parts and after-service in relation
to Products purchased by Distributor and resold to its customers.
19. Notices. All notices, certificates, requests, demands, and other
communications hereunder shall be in writing and may be personally served or
sent by or facsimile or by certified or registered airmail. All such notices,
certificates, requests, demands, and other communications shall be delivered to
the party to receive the same at the address indicated below (or at such other
address as a party may specify in a written notice):
If to Distributor:
Marubeni Corporation
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx, Xxxxx
Attention: Mr. Xxxxxx Xxxxxx, General Manager, Medical
Business Sec.
Fax: (00) 0000-0000
If to Importer:
Meditec Corporation
0-00, Xxxxx-Xxxxxx, 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
Attention: Xx. Xxxxxxxx Xxxxxx
Fax (00) 0000-0000
If to Imatron:
Imatron Inc.
000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Mr. S. Xxxxx Xxxxx, Chief Executive Officer
Fax: (000) 000-0000
If personally delivered, a notice shall be effective upon delivery. If
delivered in accordance with this Paragraph, a notice shall be effective as of
the date of receipt. If given by facsimile, a notice shall be effective when
sent, answer back received or, in the case of facsimile, confirmation received.
A party may change its address indicated above by giving written notice of such
change to the other in the manner specified in this Paragraph.
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20. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the commercial Arbitration Rules of the American Arbitration
Association ("AAA") and judgments upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. The arbitration shall take
place in San Francisco, California, United States and be governed by the laws of
the State of California. The arbitration shall be conducted by three (3)
arbitrators. Each of Imatron and Distributor shall select one arbitrator within
thirty (30) days after the filing of a request for arbitration. Should either of
them fail to select an arbitrator within such thirty-day period, the other party
shall also select that arbitrator. The two selected arbitrators shall select a
third arbitrator. The official language of the arbitration shall be English and
all proceedings and rulings shall be in English. The arbitration shall be
conducted as expeditiously as possible, and all parties shall exert best efforts
to finalize the arbitration hearings within one year. The arbitrators shall
render any decision within thirty (30) days after the close of the arbitration
hearings. The award rendered by the arbitrators shall be final and binding upon
the parties. Before, during or after arbitration, each party shall have the
right to seek from any appropriate court all provisional remedies permitted
under California law. If any party hereto must institute arbitration to collect
any payments due hereunder, the party liable therefore shall reimburse the other
party for reasonable attorneys' fees and other costs incurred in connection with
such arbitration.
21. Miscellaneous.
(a) Governing Law. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws of
the State of California without regard to that body of law known as the conflict
of laws.
(b) Governing Language. The official text of this Agreement
shall be in the English language, and any interpretation or construction of this
Agreement shall be based solely on the English-language text.
(c) Waivers. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial waiver thereof include any other or
further exercise thereof or the exercise of any other right, power, or
privilege.
(d) Amendments. Unless otherwise provided herein, this
Agreement may not be changed, waived, discharged, or terminated orally, but only
by a written document signed by duly authorized officers of the parties hereto.
(e) Entire Agreement. This Agreement is the entire agreement
between the parties and supersedes and shall be substituted for each and every
prior agreement with respect to distribution of Products, whether written, oral
or otherwise in effect between Distributor and Imatron. Imatron and Distributor
each represents and warrants that there are no other outstanding obligations or
agreements, either written, oral or implied inconsistent with this Agreement.
(f) Force Majeure. In the event that any party hereto shall be
rendered wholly or partly unable to carry out its obligations under this
Agreement by reason of causes beyond its control, including but not limited to,
fire, flood, explosion, strikes, lockouts, or other labor trouble or shortage,
inability to obtain or shortage of material, equipment or transportation,
insurrections, riots or other civil commotion, war, enemy action, acts, demands
or requirements of the governments (including the Ministry of Health and Welfare
of Japan) in any state or by other causes which it could not reasonably be
expected to avoid, then the performance of the obligations of either party or
both as they are affected by such causes shall be excused during the continuance
of any inability so caused but such inability shall as far as possible be
remedied with all reasonable dispatch.
(g) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(h) Other Cooperation. In case Japanese concerned regulations
may impose additional requirements or limitations to Distributor or Importer in
providing importation, sales, or after services of the System, Imatron shall be
willing to cooperate with Distributor and Importer in solving their problems
according to their requirements.
22. Assignment of Homologation rights.
Imatron agrees that Distributor may assign the Homologation rights for
the Systems to Importer at any time upon notice to Imatron.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
IMATRON INC.
------------------------------
Name: S. Xxxxx Xxxxx
Title: President
MEDITEC CORPORATION
------------------------------
Name: Hiroyuki Tatewaki
Title: President & C.E.O.
MARUBENI CORPORATION
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: General Manager, Electronics & Medical Business Dept.
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APPENDICES
Appendix A - Specifications and Price List
Appendix B - Assignment and Assumption Agreement
Appendix C - Confirmation of Purchase Contract
Appendix D - Imatron User License Agreement
Appendix E - Licensed Names
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APPENDIX A
Description of Imatron Model EBT Electron Beam Tomography Scanner
Imatron EBT scanner including:
o Gantry with dual solid state detectors and tungsten target rings
o High Resolution Detector System (HRDS)
o Electron Source and Beam Deflection Control
o Patient Couch with tilt, angulation, and swivel motion
o Distributed Processing System CPU
o Operator's Console
o GE Headholder
o System Software License
o Modem Telecommunications Link
o Patient Positioning Accessories
o Power Conditioner Distribution Unit
o Water Chiller
o Archive Storage System
o Operator's Manuals
o Warranty on parts for 1 year
o AccuImage Workstation - The AccuImage workstation displays 2-D,
3-D, and 4D images through advanced image post processing
capability when used in combination with Imatron's EBT or other
compatible imaging modalities. The AccuImage workstation is NT
based, and features an intuitive interface, help menus, and
universal icons for ease of use and maximum productivity.
Functions include surface rendering, interactive MIP, volume
rendering, curved reformatting, fly-through and calcium scoring.
Calcium scores are presented in a user-customizable report
template that includes a sampling of patient images, calcium
scores by artery and in total, and population data. Images and
reports are printed using the included color printer. Images are
transferred to the workstation via Megalink or Ethernet. A wide
variety of image review and management functions are included, as
well as DICOM 3 compliant image archiving and transfer.
Purchase Price For Basic System: $1,700,000 USD
(FOB: Imatron Shipping Dock So. San Francisco, CA)
Shipping and Installation
The system will be shipped within 60 days after receipt of Letter of Credit
by Imatron.
Terms
Terms of Payment are as follows:
o Letter of Credit issued 60 days prior to shipment.
o The shipping terms are as noted: "F.O.B. Imatron Shipping
Dock, South San Francisco, CA" and therefore upon shipment
from Imatron the risk of loss passes to Importer.
Prices do not include:
o Site preparation/construction to Imatron's specifications
o Any other display workstation as determined by the buyer
o Shipping, insurance, and rigging from the factory to the site
o Foreign or local taxes
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FY 2000 IMATRON INC. FORM 10-K
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o Any costs of storage, should the site not be ready to accept
installation of the scanner, requiring shipment to a third-party
warehouse.
o Radiation permits, licenses, and certificates as required by
local or national government authorities
o Other equipment such as laser cameras, injectors, teleradiology
and PACS systems
Description of Imatron Model EBT Electron Beam Tomography Options
IMATRON EBT SYSTEM OPTIONS
New Systems
2nd AccuImage Workstation $70,000 USD
Requires connection to another AccuImage workstation that is included
with the Imatron scanner.
CODONICS MODEL NP-1600 M COLOR MEDICAL IMAGER $16,310 USD
Includes utilizing Dye-Diffusion Print technology, Post Script level # software,
CDNX-1SG key, Paper & color Ribbon, 100 A size sheets, and Paper & black
Laminate Ribbon 300 A size sheets
Installed, Used and Remanufactured EBT Scanners
AccuImage Workstation $90,000 USD
The AccuImage workstation displays 2-D, 3-D, and 4D images through advanced
image post processing capability when used in combination with Imatron's
EBT or other compatible imaging modalities. The AccuImage workstation is NT
based, and features an intuitive interface, help menus, and universal icons
for ease of use and maximum productivity. Functions include surface
rendering, interactive MIP, volume rendering, curved reformatting,
fly-through and calcium scoring. Calcium scores are presented in a
user-customizable report template that includes a sampling of patient
images, calcium scores by artery and in total, and population data. Images
and reports are printed using the included color printer. Images are
transferred to the workstation via Megalink or Ethernet. A wide variety of
image review and management functions are included, as well as DICOM 3
compliant image archiving and transfer.
CODONICS MODEL NP-1600 M COLOR MEDICAL IMAGER $16,310 USD
Includes utilizing Dye-Diffusion Print technology, Post Script
level # software, CDNX-1SG key, Paper & color Ribbon, 100 A
size sheets, and Paper & black Laminate Ribbon 300 A size
sheets
High Resolution Detector System Upgrade (HRDS) $ 250,000 USD
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APPENDIX B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of November 10, 2000 by
and between IMATRON INC., a corporation organized under the laws of the State of
New Jersey, United States of America with its principal office at 000 Xxxxxx
Xxxxx Xxxx., Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of
America("Imatron") and MARUBENI CORPORATION, a corporation organized under the
laws of Japan with its principal office at 0-0, Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxx, Xxxxx("Xxxxxxxxxxx").
WITNESSETH:
WHEREAS, Imatron has heretofore entered into a Transition Agreement
dated October 5, 2000 (the "Transition Agreement"), a copy of which is attached
hereto, with Imatron Japan INC. ("IJ") relating to the transition to a new
distributor and service provider of Imatron's products in Japan;
WHEREAS, Imatron has appointed Importer and Distributor as the
exclusive service provider and distributor respectively of the Imatron EBT
Scanner system and spare parts, options and accessories in Japan pursuant to a
Distributorship Agreement of even date herewith (the "Distributorship
Agreement"); and
WHEREAS, Imatron desires to assign to Distributor certain of its rights
pursuant to the Transition Agreement in consideration of the assumption by
Distributor of certain of Imatron's obligations pursuant to the Transition
Agreement and Distributor desires to accept such assignment and perform such
obligations.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto hereby agree as follows:
4 Assignment. Effective as of the date set forth above Imatron hereby sells,
assigns and transfers all of its right, title and interest in and to the
following:
4.1 all Imatron EBT Scanner system replacement and component parts and
service tools set forth on Exhibit A-1 to the Transition Agreement;
4.2 subject to Paragraph 2, all service contracts for the repair and
maintenance of Imatron EBT Scanner systems in Japan set forth on Exhibit
A-2 to the Transition Agreement (the "Service Contracts");
4.3 the rights, licensing and registration, if any, of IJ to enter into
service contracts for the repair and maintenance of Imatron EBT Scanner
systems in Japan;
4.4 all documents, including quotations and other marketing materials,
service files relating to past, present, and potential Imatron EBT
Scanner system purchase and service customers; and
4.5 the regulatory approvals for the importation or sale of Imatron EBT
Scanner systems, and the replacement and component parts thereof into
Japan, commonly referred to as the "homologation".
5 Service Agreements. With respect to the Service Contracts:
5.1 Imatron shall use its best efforts to obtain consents from the customer
of each Service Contract agreeing to the transfer of the Service
Contract to Distributor and further agreeing to any changes to the terms
and conditions of the Service Contract as may be required by Distributor
and agreed to by the customer; and
5.2 Imatron represents and warrants that each Service Contract represents
entire agreement between the parties thereto and there are no other
outstanding obligations or agreements, either written oral or implied,
formal or informal in respect of the subject matter thereof. This
representation and warranty expires 90days from the date of the signing
of this Agreement.
6 Rights Not Assigned. Notwithstanding the foregoing, the following rights
are not assigned:
6.1 The two existing Imatron EBT Scanner Systems owned by IJ (Serial Nos. 26
and 160).
7 Assumption of Obligations. In consideration for the above assignment,
Distributor agrees to assume
7.1 All obligations to provide service, training, software and hardware
updating, service support and warranty obligations as provided in
Paragraph 1 and Paragraph 3 a of the Transition Agreement.
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Except as set forth in this paragraph, Distributor is not assuming and
shall not be liable for any other of the obligations or liabilities of Imatron
of any kind or nature whatsoever under the Transition Agreement.
Imatron shall ensure that the Transition Agreement will not be
terminated or cancelled by Imatron Japan INC. for Imatron's breach of its
obligations under the Transition Agreement and hold harmless Distributor from
any losses or damages which Distributor may incur as a result of Imatron's
breach of the Transition Agreement.
8 Indemnification. Each of the parties hereby agrees to hold harmless and
indemnify the other, and its successors and assigns, against any claim,
action, loss, liability, damage, or cost and expense, including without
limitation reasonable attorneys' and experts' fees and expenses (hereafter
collectively "Losses" and separately as "Loss"), resulting from or arising
out of any breach or inaccuracy of any representation or warranty,
nonperformance of any agreement, covenant, promise, or obligation on the
part of the indemnifying party contained in this Agreement.
9 Notices. All notices, certificates, requests, demands, ad other
communications hereunder shall be in writing and shall be delivered as
provided in the Distributorship Agreement.
10 Miscellaneous.
10.1 Governing Law; Arbitration. This Agreement shall be deemed to have
been entered into and shall be construed and enforced in accordance
with the laws of the State of California without regard to that body
of law known as the conflict of laws. Any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration as provided in Paragraph 13 of the Transition
Agreement. This Agreement shall be deemed to have been entered into
and shall be construed and enforced in accordance with the laws of the
State of California without regard to that body of law known as the
conflict of laws.
10.2 Governing Language. The official text of this Agreement shall be in
the English language, and any interpretation or construction of this
Agreement shall be based solely on the English-language text.
10.3 Waivers. No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial waiver thereof include any other or
further exercise thereof or the exercise of any other right, power, or
privilege.
10.4 Amendments. Unless otherwise provided herein, this Agreement may not
be changed, waived, discharged, or terminated orally, but only by a
written document signed by duly authorized officers of the parties
hereto.
10.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
IMATRON INC. MARUBENI CORPORATION
By: S. Xxxxx Xxxxx By: X.Xxxxxxxx
Its: Chief Executive Officer Its: General Manager ,
Electronics & Medical Business
Department
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APPENDIX D
USER LICENSE AGREEMENT
This Agreement is made and entered into on between Imatron Inc., a
corporation, hereinafter called "Imatron", and Marubeni Corporation hereinafter
called the "Licensee".
In consideration of the mutual covenants and conditions contained
herein, the parties agree as follows:
1. License. Imatron hereby grants to the Licensee a nontransferable and
nonexclusive single site license to use the computer software package described
at the end of this form, hereinafter called the "Software", upon the terms and
conditions contained herein.
2. License Fee. The Licensee agrees to pay Imatron a one-time license
fee (included in the basic system price) for this license.
3. Conditions. This license is granted upon the following conditions:
(a) The Software and any copies thereof shall at all time remain
the sole property of Imatron. Imatron reserves the right to grant
nontransferable and nonexclusive rights to use the Software to other persons or
entities upon such terms and conditions as Imatron shall prescribe. The Licensee
covenants and agrees not to permit access to, transfer, or assign the Software,
or any part or copy thereof, in any form, to any other person or entity without
the prior written consent of Imatron.
(b) The Software shall be used only at the following location of
the Licensee:
In Japan.
(c) The Software shall be used by the Licensee only on the
following equipment:
(d) The Licensee acknowledges that the Software is proprietary to
Imatron and agrees not to disclose it in any form, in whole or in part, to any
other person or entity. The Licensee also agrees not to copy, duplicate, or
otherwise reproduce any Software, or any version, routine, subroutine, or part
thereof, or create or attempt to create, or permit others to attempt to create,
by reverse engineering or otherwise, the source programs, or any part thereof
from the object program or from other information or data made available by
Imatron, or otherwise acquired by Licensee, without prior written authorization
from Imatron. If such authorization is obtained, the Licensee shall apply
Imatron's copyright notice and other legend(s), if any, contained on the
Software to such reproductions or copies, and all restrictions herein on use and
disclosure of the Software shall apply to any such reproductions or copies
thereof.
(e) The Licensee shall not cause or permit the Software, or any
part thereof to be used by any person other than the officers, employees, and
agents of the Licensee' engaged in the business activities of the Licensee at
the location referred to herein. The Licensee agrees that it shall cause each
authorized person who uses the Software to agree to refrain from disclosing or
delivering the Software, or any part thereof, to any unauthorized person or
entity.
(f) In the event that the Software is for use by the United
States Government, or any branch or agency thereof (hereinafter referred to as
the" Government"), the provisions of this subparagraph (f) shall apply to such
transaction in lieu of subparagraphs (a) through (e) above. The Software shall
be treated by
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FY 2000 IMATRON INC. FORM 10-K
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the Government as "Limited Rights Data" pursuant to DAR 7 104.9(A) or the
equivalent clause in other agency procurement regulations.
4. Reservation of Rights. The rights granted to the Licensee hereunder
shall not affect the exclusive ownership by Imatron of any trademarks,
copyrights, patents, or common law property rights of Imatron pertaining to the
Software. The License granted hereby shall at all times be subject to all
trademarks, copyrights, letters, patents, and common law property rights of
Imatron relating to the Software.
5. Modifications and Improvements. If the Licensee modifies the
Software in any manner or utilizes any other software with the Software, or uses
or permits the use of the Software on any Hardware/System other than the
Hardware/System with which the Software was provided without prior written
authorization from Imatron, all warranties associated with the Software and the
Hardware/System shall become null and void. If the Licensee, or any of it's
officers, agents, or employees devise or acquire any improvements in the
Software and the Licensee voluntarily discloses such improvements to Imatron
Imatron shall have a nonexclusive, royalty-free license to use such improvement
and the right to grant sublicenses thereto.
6. Term. This license shall continue for as long as the Licensee
continues to utilize the above specified Hardware/System (s), except that
Imatron may terminate this license upon thirty (30) days written notice to the
Licensee in the event of any default by the Licensee of any term, covenant, or
condition contained herein or in the contract of sale relating to the
Hardware/System. Such termination shall not relieve the Licensee of any of any
of its obligations incurred prior to such termination, and shall not impair any
of Imatron's rights which have accrued prior to such date. The Licensee agrees
to return the Software and any copies thereof to Imatron, at the Licensee's
expense, immediately upon the termination of this license. The covenants of the
Licensee contained in Paragraph 3 hereof shall survive the termination of this
License. The warranty contained in Paragraph 8 hereof shall terminate upon the
expiration or sooner termination of this License.
7. Patent and Copyright Indemnification. Imatron will defend any action
brought against Licensee to the extent that it is based on a claim that any
Software used within the scope of the License hereunder infringes a United
States patent or copyright, provided Licensee notifies Imatron promptly in
writing of the action (and all prior claims relating to such action) and Imatron
has sole control of the defense and all negotiations for its settlement or
compromise. In the event any Software becomes, or in the opinion of Imatron is
likely to become, the subject of a claim of infringement of a patent or
copyright, Imatron may at its option either, (a) secure the Licensee's right to
continue using the Software, (b) replace or modify it, to make it noninfringing,
so long as such replacement or modification dose not materially or adversely
affect its performance, or, if neither of the foregoing alternatives is
reasonably available to Imatron, accept return of such Software and refund to
Licensee all fees paid by Licensee for the Software so returned. Imatron shall
have no liability for any claim of copyright or patent infringement based on (1)
use of other than a current unaltered release of the Software available from
Imatron if such infringement would have been avoided by the use of such current
unaltered release or (2) use or combination of the Software with programs or
data not supplied by Imatron. THE FOREGOING STATES THE ENTIRE LIABILITY OF
IMATRON WITH RESPECT TO INFRINGEMENT OF ANY COPYRIGHTS OR PATENTS BY THE
SOFTWARE OR ANY PARTS THEREOF.
8. Warranty. THE SOFTWARE WHEN DELIVERED IS WARRANTED TO BE FREE FROM
DEFECTS IN MATERIALS AND WORKMANSHIP. EXCEPT FOR THE EXPRESS WARRANTY HEREIN,
IMATRON GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATED EXPRESS
WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF IMATRON FOR DAMAGES,
INCLUDING BUT NOT LIMITED TO SPECIAL OR CONSEQUENTIAL DAMAGES, OCCURRING OUT OF
OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE.
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9. Waiver of Liability. Subject to the provisions of paragraphs 7 and 8
above, the Licensee expressly waives all claims against Imatron. The parties
agree that neither shall be responsible for the acts or omissions of the other
in regard to the development or use of the licensed Software.
10. Taxes. The Licensee agrees to pay any state or local tax, use tax,
excise tax, or similar tax, however designated, levied or computed, on the
amount paid by the licensee to Imatron for this license to use the Software.
11. General.
(a) This Agreement constitutes the entire Agreement between
Imatron and the Licensee with respect to the subject matter of this Agreement.
(b) No modification of this Agreement shall be valid unless in
writing and signed by duly authorized representatives of both of the parties.
(c) The Licensee shall not assign this Agreement or any right
hereunder to any other person or entity without the prior written consent of
Imatron. Such consent will not be unreasonably withheld. Subject to the
foregoing prohibition against assignment, this Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the parties
hereto.
(d) This Agreement shall be considered as having been entered
into in the State of California and shall be subject to interpretation in
accordance with the laws thereof
In witness whereof, the parties have executed this Agreement as of the
date set forth above.
IMATRON INC. MARUBENI CORPORATION
By: S. Xxxxx Xxxxx By: X. Xxxxxxxx
-------------- -----------
Title: Chief Executive Officer Title: General Manager ,
----------------------- Electronics & Medical Business Department
------------------------------------------
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Appendix E
[Trade Xxxx]
IMATRON
(Registration No.3176291)
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Exhibit 10.34
IMATRON INC.
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
the 1st day of January, 2001 by and between Imatron Inc. (the "Company"), and
Xxxxx Xxxx, ("Consultant"). The Company desires to retain Consultant as an
independent contractor to perform consulting services for the Company and
Consultant is willing to perform such services, on terms set forth more fully
below. In consideration of the mutual promises contained herein, the parties
agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services
("Services") described in Exhibit A, attached hereto.
(b) The Company agrees to pay Consultant the compensation set
forth in Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
(a) Definition. "Confidential Information" means any Company
proprietary information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services, customers,
customer lists, markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed by the
Company either directly or indirectly in writing, orally or by drawings or
inspection of parts or equipment.
(b) Non-Use and Non-Disclosure. Consultant will not, during or
subsequent to the term of this Agreement, use the Company's Confidential
Information for any purpose whatsoever, other than performing Services for the
Company, or disclose the Company's Confidential Information to any third party.
It is understood that said Confidential Information shall remain the sole
property of the Company. Consultant further agrees to take all reasonable
precautions to prevent any unauthorized disclosure of such Confidential
Information including, but not limited to, having each employee, agent, or
contractor of Consultant, if any, with access to any Confidential Information,
execute a nondisclosure agreement containing provisions in the Company's favor
identical to Sections 2, 3 and 4 of this Agreement. Confidential Information
does not include information which (i) is known to Consultant at the time of
disclosure to Consultant by the Company as evidenced by written records of
Consultant, (ii) has become publicly known and made generally available through
no wrongful act of Consultant, or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such disclosure.
(c) Former Employer's Confidential Information. Consultant
agrees that Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any former or
current employer or other person or entity with which Consultant has an
agreement or duty to keep in confidence information acquired by Consultant, if
any, and that Consultant will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer, person or
entity. Consultant will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages and expenses, including reasonable
attorneys fees and costs of suit, arising out of or in connection with any
violation or claimed violation of a third party's rights resulting in whole or
in part from the Company's use of the work product of Consultant under this
Agreement.
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(d) Third Party Confidential Information. Consultant
recognizes that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on
the Company's part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that Consultant owes
the Company and such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for
the Company consistent with the Company's agreement with such third party.
(e) Return of Materials. Upon the termination of this
Agreement, or upon Company's earlier request, Consultant will deliver to the
Company all of the Company's property or Confidential Information that
Consultant may have in Consultant's possession or control.
3. OWNERSHIP
(a) Assignment. Consultant agrees that all material, notes,
records, drawings, designs, inventions, improvements, developments, discoveries
and trade secrets (collectively, "Work Product") conceived, made or discovered
by Consultant, solely or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of the Company that
Consultant may be directed to undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder, are the sole property of the Company. Consultant further agrees to
assign (or cause to be assigned) and does hereby assign fully to the Company all
Work Product and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto.
(b) Further Assurances. Consultant agrees to assist Company,
or its designee, at the Company's expense, in every proper way to secure the
Company's rights in the Work Product and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all pertinent information
and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive right, title and interest in and to such Work Product, and
any copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Consultant further agrees that Consultant's obligation to
execute or cause to be executed, when it is in Consultant's power to do so, any
such instrument or papers shall continue after the termination of this
Agreement.
(c) Pre-Existing Materials. Consultant agrees that if in the
course of performing the Services, Consultant incorporates into any Work Product
developed hereunder any invention, improvement, development, concept, discovery
or other proprietary information owned by Consultant or in which Consultant has
an interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to use, reproduce,
distribute, perform, display, prepare derivative works of, make, have made, sell
and export such item as part of or in connection with such Work Product.
Consultant shall not incorporate any invention, improvement, development,
concept, discovery or other proprietary information owned by any third party
into any Work Product without Company's prior written permission.
(d) Attorney in Fact. Consultant agrees that if the Company is
unable because of Consultant's unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant's signature to apply
for or to pursue any application for any United States or foreign patents or
mask work or copyright registrations covering the Work Product assigned to the
Company above, then Consultant hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as Consultant's agent and
attorney in fact, to act for and in Consultant's behalf and stead to execute and
file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Consultant.
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4. CONFLICTING OBLIGATIONS
Contractor is free to perform services for other entities
while performing services for the Company, except if such other entity is a
competitor of the Company, thereby creating a risk of disclosure of confidential
information, as defined in Section 2. Consultant certifies that Consultant has
no outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Consultant from complying
with the provisions hereof, and further certifies that Consultant will not enter
into any such conflicting Agreement during the term of this Agreement.
5. NON-SOLICITATION
During the term of this Agreement and for a period of twelve
months following termination of this Agreement, Consultant shall not, directly
or indirectly, hire, solicit, or encourage to leave the Company's employment,
any employee or contractor of the Company or hire any such employee or
contractor who has left the Company's employment or contractual engagement.
6. TERM AND TERMINATION
(a) Term. This Agreement will commence on the date first
written above and will continue for the Duration of Services as set forth on
Exhibit A, subject to early termination described below.
(b) Termination. The Company may terminate this Agreement
immediately and without prior notice if Consultant refuses to or is unable to
perform the Services or is in breach of any material provision of this
Agreement.
(c) Survival. Upon such termination, all rights and duties of
the parties toward each other shall cease except:
(i) That the Company shall be obliged to pay, within
thirty (30) days of the effective date of termination, all amounts owing to
Consultant for Services completed and accepted by the Company prior to the
termination date and related expenses, if any, in accordance with the provisions
of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership), 5
(Non-Solicitation) and 8 (Independent Contractors) shall survive termination of
this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest
herein may be assigned or transferred by Consultant without the express written
consent of the Company.
8. INDEPENDENT CONTRACTOR
It is the express intention of the parties that Consultant is
an independent contractor. Nothing in this Agreement shall in any way be
construed to constitute Consultant as an agent, employee or representative of
the Company, and Consultant shall perform the Services hereunder as an
independent contractor. Consultant is free to control his methods of work,
provided that Consultant continues to render his best efforts for the Company
under this Agreement. Consultant agrees to furnish (or reimburse the Company
for) all tools and materials necessary to accomplish this contract, and shall
incur all expenses associated with performance, except as expressly provided on
Exhibit A of this Agreement. Consultant acknowledges and agrees that Consultant
is obligated to report as income all compensation received by Consultant
pursuant to this Agreement, and Consultant agrees to and acknowledges the
obligation to pay all self-employment and other taxes thereon. Consultant
further
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agrees to indemnify and hold harmless the Company and its directors, officers,
and employees from and against all taxes, losses, damages, liabilities, costs
and expenses, including attorney's fees and other legal expenses, arising
directly or indirectly from (i) any negligent, reckless or intentionally
wrongful act of Consultant or Consultant's assistants, employees or agents, (ii)
a determination by a court or agency that the Consultant is not an independent
contractor, or (iii) any breach by the Consultant or Consultant's assistants,
employee or agents of any of the covenants contained in this Agreement.
9. BENEFITS
Consultant acknowledges and agrees and it is the intent of the
parties hereto that Consultant receive no Company-sponsored benefits from the
Company either as a Consultant or employee. Such benefits include, but are not
limited to, paid vacation, sick leave, medical insurance, 401K participation,
and incentive or bonus programs. If Consultant is reclassified by a state or
federal agency or court as an employee, Consultant will become a reclassified
employee and will receive no benefits except those mandated by state or federal
law, even if by the terms of the Company's benefit plans in effect at the time
of such reclassification Consultant would otherwise be eligible for such
benefits.
10. ARBITRATION AND EQUITABLE RELIEF
(a) Disputes. Except as provided in Section 10(d) below, the
Company and Consultant agree that any dispute or controversy arising out of,
relating to or in connection with the interpretation, validity, construction,
performance, breach or termination of this Agreement shall be settled by binding
arbitration to be held in San Mateo County, California, in accordance with, but
not necessarily the administration of, the Commercial Arbitration Rules,
supplemented by the Supplemental Procedures for Large Complex Disputes, of the
American Arbitration Association as then in effect (the "Rules"). The arbitrator
may grant injunctions or other relief in such dispute or controversy. The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. Judgment may be entered on the arbitrator's decision in any
court of competent jurisdiction.
(b) Governing Law. The arbitrator(s) shall apply California
law to the merits of any dispute or claim, without reference to conflicts of law
rules. Consultant hereby consents to the personal jurisdiction of the state and
federal courts located in California for any action or proceeding arising from
or relating to this Agreement or relating to any arbitration in which the
parties are participants.
(c) Costs. The Company and Consultant shall each pay one-half
of the costs and expenses of such arbitration, and each shall separately pay its
counsel fees and expenses unless otherwise required by law.
(d) Equitable Relief. The parties may apply to any court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other interim or conservatory relief, as necessary, without
breach of this arbitration agreement and without abridgment of the powers of the
arbitrator.
(e) ACKNOWLEDGMENT. CONSULTANT HAS READ AND UNDERSTANDS
SECTION 10, WHICH DISCUSSES ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING
THIS AGREEMENT, CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING
TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING
ARBITRATION, EXCEPT AS PROVIDED IN SECTION 10(d), AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF CONSULTANT'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP
BETWEEN THE PARTIES.
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11. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
California.
12. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and
supersedes any prior agreements between them, whether written or oral, with
respect to the subject matter hereof. No waiver, alteration, or modification of
any of the provisions of this Agreement shall be binding unless in writing and
signed by duly authorized representatives of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXX XXXX IMATRON INC.
______________________________ _________________________
Address: By:
____________________________ ______________________
______________________________ Its:______________
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