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EXHIBIT 10.20
MANUFACTURING AND SUPPLY AGREEMENT
This Manufacturing and Supply Agreement ("Agreement") is entered into
effective as of October 17, 1995 (the "Effective Date"), by and between Collagen
Corporation, a Delaware corporation with an office at 0000 Xxxxx Xxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 ("Collagen"), and Innovasive Devices, Inc., a
Massachusetts corporation with an office at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000 ("Innovasive").
WHEREAS, the parties have entered into (i) a Research and Development
Agreement (the "R&D Agreement") effective on even date herewith, pertaining to
the development of certain resorbable or partially resorbable mechanical
tissue-fixation devices utilizing collagen-based biomaterials, and (ii) a
Distribution Agreement (the "Distribution Agreement") effective on even date
herewith, pertaining to the distribution of certain products;
WHEREAS, the parties intend that this Agreement will cover the
manufacture and supply of products to be distributed pursuant to the
Distribution Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Collagen and Innovasive agree as follows:
1. Definitions.
1.1 All terms with initial letters capitalized which are not expressly
defined herein shall have the definitions set forth in the R&D Agreement.
1.2 A "Catastrophe" with respect to a particular Supplied Product shall
be deemed to occur when either (i) the Supplier of such Supplied Product is
unable to supply any units of such Supplied Product for a period of three (3)
consecutive months, or (ii) in any six (6) calendar month period (the "Test
Period") after the expiration of the first six (6) complete calendar months
following the first commercial sale of such Supplied Product, the Supplier of
such Supplied Product is unable to supply at least fifty percent (50%) of the
units of such Supplied Product ordered by the Purchaser of such Supplied
Product. Notwithstanding the foregoing, with respect to (ii) of the preceding
sentence, (a) the number of units of such Supplied Product which the Purchaser
of such Supplied Product rejects in the last calendar month of the Test Period
shall be deemed to have been ordered and supplied, and (b) the maximum number of
units of such Supplied Product which the Supplier of such Supplied Product can
be deemed to have failed to supply during the second three (3) months of the
Test Period shall equal one hundred and ten percent (110%) of the units of such
Supplied Product ordered during the first three (3) months of the Test Period,
and (c) the parties will mutually agree on the orders which may be placed during
the first Test Period.
1.3 A "Lot" of a given Supplied Product shall mean a quantity of such
Supplied Product which shall be mutually agreed upon by the parties.
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1.4 The "Purchaser" of a given Supplied Product shall be the party which
shall purchase such Supplied Product from the other party pursuant to this
Agreement.
1.5 "Shipment Point" for a given Supplied Product shall mean the
facility operated by or for the Supplier of such Supplied Product, at which such
Supplied Product is manufactured.
1.6 "Specifications" for a given Supplied Product shall mean mutually
agreed upon written specifications for such Supplied Product, which shall be
attached hereto as Exhibit A promptly after such specifications have been agreed
upon. The Specifications may be amended from time to time by mutual written
consent of the parties.
1.7 "Supplied Product" shall mean any unit of any Product or Other
Innovasive Product for which development has been completed and for which a
forecast has been furnished by a party with the right to distribute such product
under the Distribution Agreement.
1.8 The "Supplier" of a given Supplied Product shall be the party which
shall supply such Supplied Product to the other party pursuant to this
Agreement.
2. Supply of the Supplied Product.
2.1 Supplied Products. During such time as this Agreement remains in
effect with respect to a particular Supplied Product, the Supplier of such
Supplied Product shall use its commercially reasonable efforts to supply the
Purchaser of such Supplied Product with the Purchaser's requirements for such
Supplied Product.
2.2 Exclusivity. Except as set forth below, the Supplier of a Supplied
Product, or, in the Supplier's sole discretion and subject to Good Manufacturing
Practices audit of the subcontractor by the Purchaser of such Supplied Product,
the Supplier's subcontractor, shall be the Purchaser's exclusive source of the
Supplied Product; provided, however, that in the event that a Catastrophe occurs
with respect to such Supplied Product, the Supplier shall notify the Purchaser,
within thirty (30) days after the Supplier receives written notice from the
Purchaser that such Catastrophe has occurred, if the Supplier intends to
establish a second source for such Supplied Product. If the Supplier provides
such written notification, then the Supplier shall use commercially reasonable
efforts to establish such second source. If the Supplier does not provide such
written notice, or if the Supplier is unable to establish a second source,
within a period of six (6) months after Supplier's receipt of such written
notice, which is able to supply at least the order level for such Supplied
Product in effect during the last calendar month prior to the date on which the
Catastrophe is deemed to have occurred, the Purchaser shall have the right to
establish a second source itself; provided, that such second source established
by the Purchaser shall not use any of the Supplier's proprietary trade secrets
or Confidential Information. Thereafter, the Supplier may, at its option, regain
its rights to exclusively supply such Supplied Product if it (i) demonstrates to
the Purchaser's reasonable satisfaction that the Supplier is able to meet the
Purchaser's requirements for such Supplied Product, and (ii) pays the Purchaser
the Purchaser's reasonable incremental costs of establishing its own second
source and obtaining units of such Supplied Product from such second source.
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3. Distribution of Supplied Products; Proprietary Rights.
The ownership of intellectual property and other rights in Supplied
Products is set forth in the R&D Agreement. The parties' rights to distribute
Supplied Products are set forth in the Distribution Agreement.
4. Terms and Conditions for Supply of Supplied Products.
4.1 Forecasts. During the term of this Agreement,
(i) A party intending to be the Purchaser of a Supplied Product
shall provide a preliminary forecast for its anticipated purchase order levels
during the first twelve (12) months following the first commercial sale of such
Supplied Product (the "Preliminary Forecast"). Such preliminary forecast shall
be provided to the Supplier of such Supplied Product at least twelve (12) months
prior to the anticipated date (as determined by the parties) of first commercial
sale of such Supplied Product.
(ii) The Purchaser shall provide the Supplier on or prior to the
first day of each calendar month (the "Forecast Due Date") with a twelve (12)
month rolling forecast for units of such Supplied Product to be manufactured by
the Supplier in the twelve (12) month forecast period commencing three (3)
calendar months after the Forecast Due Date, setting forth the Purchaser's
estimated monthly requirements for Supplied Products. Such forecast shall be
updated monthly. Such quantity requirements shall be specified as multiples of
complete and undivided Lots. The first such forecast shall be provided at least
three (3) complete calendar months prior to the anticipated date of first
commercial sale of such Supplied Product. The parties understand and agree that
because of variability in the yield of manufacturing processes, the Supplier
shall be regarded as being in compliance with its supply obligations under this
Agreement if it meets such quantity requirements to within plus or minus ten
percent (10%).
(iii) Each such forecast shall be accompanied by a firm purchase
order. The first such firm purchase order shall cover the three (3) calendar
month period commencing three (3) calendar months after the Forecast Due Date.
Each such forecast thereafter shall be accompanied by a firm purchase order for
the calendar month commencing five (5) calendar months after the date of such
forecast. The Supplier shall only be obligated to supply Supplied Products for
which a firm purchase order has been provided by the Purchaser. The Purchaser
shall only be obligated to purchase Supplied Products which are ordered in a
firm purchase order. Firm purchase orders shall include requested delivery dates
and shipping instructions for shipments in the period covered by such firm
purchase orders, and may not be canceled or rescheduled.
(iv) During the first six (6) months after first commercial sale
of a Supplied Product, the Purchaser shall purchase at least fifty percent (50%)
of the units of such Supplied Product forecasted for such six (6) month period
in the Preliminary Forecast referred to in Section 4.1 (i) above.
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4.2 Packing, Delivery and Title. Each Supplied Product shall be shipped
by the Supplier of such Supplied Product in conformance with the Supplier's
standard shipping procedures. Shipment shall be F.O.B. the Shipment Point for
such Supplied Product. All freight, insurance and other shipping expenses from
the Shipment Point shall be borne by the Purchaser of such Supplied Product. The
Supplied Product shall be shipped to the Purchaser's address as set forth in the
purchase orders provided by the Purchaser pursuant to Section 4.1(iii), or to
such other address as may be specified by the Purchaser in writing. Risk of loss
and title to Supplied Products shall pass to the Purchaser upon delivery by the
Supplier of such products to the Shipment Point. All Supplied Products delivered
pursuant to this Section 4.2 shall be packed for shipment in the manner
specified in the Specifications.
4.3 Inspection and Acceptance.
(i) The Purchaser shall have thirty (30) days after receipt by
the Purchaser of Supplied Products shipped by the Supplier to inspect and test
such Supplied Products. During such thirty (30) day period, the Purchaser shall
store such Supplied Products in a manner which preserves the integrity of such
Supplied Products for commercial sale and use. If the Purchaser determines,
using inspection and testing procedures set forth in the Specifications, that
any such Supplied Products fail to meet any applicable Specifications in any
material way, the Purchaser may reject such Supplied Products by notifying the
Supplier in writing of such rejection and the reasons for such rejection. The
Purchaser shall, as directed by the Supplier, destroy or return any rejected
Supplied Products in accordance with the Supplier's then-standard procedures for
destruction or return of rejected products manufactured by Supplier. Provided
that the Purchaser has already paid the original costs of shipment of such
rejected Supplied Products from the Supplier to the Purchaser, the Supplier
shall bear the cost (if any) incurred by the Purchaser in returning correctly
rejected Supplied Products, and the cost of shipping replacement Supplied
Products to the Purchaser. The Purchaser shall bear all costs incurred by the
Purchaser in shipping incorrectly rejected Supplied Products to the Supplier,
and the cost incurred by the Supplier in returning such incorrectly rejected
Supplied Products to the Purchaser, or in shipping replacement Supplied Products
to the Purchaser. Failure by the Purchaser to provide written notification of
rejection to the Supplier within the thirty (30) day inspection and testing
period set forth in this Section 4.3 shall constitute acceptance of a shipment
of Supplied Products by the Purchaser. If the Supplier disputes the Purchaser's
reasons for rejection, and the parties are unable to resolve the dispute within
thirty (30) days of rejection, then (a) except as set forth in (b) of this
sentence, the rejected units of Supplied Product shall remain at the Purchaser's
location, and (b) the rejected units of Supplied Product shall be inspected and
tested by a mutually acceptable third party using the inspection and testing
procedures set forth in the Specifications and utilized by the Purchaser. The
decision of such third party shall be binding with respect to the issue of
acceptance or rejection of such units of Supplied Product. In the event that
such third party determines that units of Supplied Products were correctly
rejected, the parties will mutually discuss in good faith and agree upon the
disposition of all such rejected units remaining at the Purchaser's location. In
the event that such third party determines that units of Supplied Products were
incorrectly rejected, such units shall be deemed accepted by the Purchaser.
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(ii) Notwithstanding anything to the contrary in Section 4.3(i)
above, it is the parties' intention that Innovasive shall accept Collagen's
certificate of analysis for units of any Supplied Product which are supplied by
Collagen more than twelve (12) months after the date on which Collagen first
supplies units of such Supplied Product to Innovasive, provided that the units
of such Supplied Product supplied by Collagen during such twelve (12) month
period have substantially complied with applicable Specifications. After such
twelve (12) month period, and subject to Innovasive's right to periodically
inspect and test units of such Supplied Product to verify compliance with
applicable Specifications, Section 4.3(i) shall cease to apply with respect to
units of such Supplied Product other than any units of such Supplied Product
that have been rejected based on Innovasive's inspection and testing in
accordance with Section 4.3(i), and units of such Supplied Product (other than
those rejected as aforesaid) shall be deemed accepted by Innovasive once such
units have passed Collagen's internal quality control procedures and received
Collagen's certificate of analysis.
5. Price and Payment.
5.1 Transfer Pricing for Supplied Products. The following transfer
pricing structure shall apply to the supply of Supplied Products hereunder:
5.1.1 Freight. All Supplied Product transfer prices referred to
in this Section 5 shall be F.O.B. the Shipment Points for such Supplied
Products.
5.1.2 Supplied Products for Commercial Use. For each Supplied
Product ordered by the Purchaser thereof for use by the Purchaser or the
Purchaser's customers, the Purchaser shall be charged the transfer prices set
forth for such Supplied Product in the Distribution Agreement, in Section 7.2
thereof and Section 1 of Exhibit B thereof. Transfer prices for non-sterile
units of such Supplied Product used by the Purchaser solely for demonstration
purposes and labeled for such Supplied Products shall be set forth in Section 2
of Exhibit B of the Distribution Agreement.
5.2 Taxes. All prices for any Supplied Product are exclusive of any
export, foreign import, federal, state or local tax or excise. Any such export,
federal, state or local tax or excise paid by the Supplier (other than taxes on
the Supplier's income) shall be reimbursed by the Purchaser of such Supplied
Product, and shall appear as a separate item on the Purchaser's invoice;
provided, however, that the Supplier shall not pay any such tax or excise if the
Supplier receives a valid tax exemption certificate from the Purchaser prior to
shipment.
5.3 Payment.
5.3.1 Invoices, Taxes. The Supplier of any Supplied Product shall
submit an invoice to the Purchaser of such Supplied Product upon shipment of
units of such Supplied Product. The invoice shall state the amount to be paid by
the Purchaser for all units of such Supplied Product in such shipment, as well
as any freight expenses and/or taxes paid by the Supplier which shall be
reimbursed by Purchaser in accordance with Sections 4.2 and 5.2.
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5.3.2 Payment Terms. The full invoiced amount for each shipment
of Supplied Products shall be paid net thirty (30) days. All payments shall be
in U.S. Dollars. Late payments shall be subject to a charge of one and one-half
percent (1.5%) per month or the maximum rate permitted by law, whichever is
lower. The Supplier of any Supplied Product shall have the right at any time, in
its commercially reasonable discretion, to discontinue credit and require
payment prior to shipment. Notwithstanding anything to the contrary, if the
Purchaser of any Supplied Product is delinquent in its payments for units of
such Supplied Product and has not cured such delinquency within ten (10) days
after its receipt of written notice of such delinquency from the Supplier, the
Supplier may cease to supply the Purchaser with units of such Supplied Product
under Section 2 hereof for so long as the Purchaser remains delinquent in its
payments for units of such Supplied Product.
6. Changes to Supplied Products.
The Supplier of any Supplied Product shall notify the Purchaser of such
Supplied Product in writing of any changes to such Supplied Product which (i)
are required for safety reasons, or (ii) are required to meet any
Specifications, and shall begin implementing such changes promptly after
provision of such written notice; provided, that the changed Supplied Product
shall have substantially the same functionality as the Supplied Product it
replaces.
7. Warranties; Disclaimer.
7.1 By Both Parties. Each party warrants that (i) it has full right,
power and authority to enter into this Agreement and to grant the rights granted
to the other party hereunder, and (ii) it has not entered into, and during the
term of this Agreement will not enter into, any agreement with any third party
that is or would be inconsistent with its obligations hereunder.
7.2 Product Warranty. The Supplier of a Supplied Product warrants that
all units of such Supplied Product supplied by Supplier hereunder shall be
manufactured, if for pre-clinical use, in accordance with Good Laboratory
Practices for medical products (as defined by the U.S. Food and Drug
Administration ("FDA")), and if for clinical or commercial use, in accordance
with Good Manufacturing Practices for medical products (as defined by the FDA),
and shall meet the Specifications for such Supplied Product. The sole remedy of
the Purchaser of such Supplied Product for any breach of the warranty in this
Section 7.2 shall be replacement or credit at the Purchaser's discretion, by
Supplier at Supplier's expense, of any units of such Supplied Product that do
not meet applicable Specifications or are not manufactured in accordance with
such Good Manufacturing Practices; provided, however, that the Supplier shall
remain obligated to indemnify the Purchaser under Section 8 against product
liability claims brought against the Purchaser in connection with such Supplied
Product.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7, THE
SUPPLIER OF ANY SUPPLIED PRODUCT MAKES, AND THE PURCHASER OF SUCH SUPPLIED
PRODUCT RECEIVES, NO WARRANTIES OR CONDITIONS IN CONNECTION WITH SUCH SUPPLIED
PRODUCT, WHETHER EXPRESS, IMPLIED, CONTRACTUAL OR STATUTORY, AND THE SUPPLIER
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SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
8. Indemnity.
8.1 Intellectual Property Indemnity. Each party (the "Indemnifying
Party") shall defend, indemnify and hold the other party (the "Indemnified
Party") harmless against all damages, costs (including attorneys' fees) or other
liability actually incurred by the Indemnified Party or assessed against the
Indemnified Party by a court of competent jurisdiction, to the extent arising
from an action based on a claim that (i) Collagen's compliance with Innovasive's
mechanical design specifications, if Collagen is the Indemnified Party, or (b)
the collagen base material supplied by Collagen for use in any Supplied Product,
in the form supplied by Collagen, if Innovasive is the Indemnified Party,
infringes any patent, copyright, trademark, trade secret or other intellectual
property right owned by any third party; provided, the foregoing obligation
shall be subject to the Indemnified Party notifying the Indemnifying Party
promptly in writing of the claim, giving the Indemnifying Party the exclusive
control of the defense and settlement thereof, and providing all reasonable
assistance in connection therewith. Notwithstanding the foregoing, the
Indemnifying Party shall not settle any such claim without the written consent
of the Indemnified Party, which shall not be unreasonably withheld. Except as
expressly set forth herein, the parties shall mutually decide and collaborate
upon a joint response to any claims of infringement of third party intellectual
property rights by any Supplied Product.
8.2 Intellectual Property Indemnity by the Purchaser. The Purchaser of
any Supplied Product shall defend at its expense any action brought against the
Supplier of such Supplied Product to the extent such action is based on a claim
that the use to which the Purchaser has put the Supplied Products, or any part
thereof, infringes any patent, copyright, trademark, trade secret or other
intellectual property right owned by any third party, and the Purchaser shall
pay all damages, costs (including attorneys' fees) or other liability actually
incurred by the Supplier in such action which are attributable to such claim;
provided, the foregoing obligation shall be subject to the Supplier notifying
the Purchaser promptly in writing of the claim, giving the Purchaser the
exclusive control of the defense and settlement thereof, and providing all
reasonable assistance in connection therewith.
8.3 Product Liability Indemnity by the Supplier. The Supplier of any
Supplied Product shall, at its own expense, defend or at its option settle, any
claim, suit or proceeding brought against the Purchaser of such Supplied Product
arising out of any injury, illness, and/or death that resulted from (i) any
negligent act or omission by the Supplier, or its employees, agents or other
representatives in connection with the manufacture or supply of such Supplied
Product to the Purchaser, or (ii) a defect in the manufacture of any such
Supplied Product supplied by Supplier hereunder. The Supplier shall have sole
control of any such action or settlement negotiations, and the Supplier agrees
to pay, subject to the limitations hereinafter set forth, any settlement amount
agreed to by the Purchaser in such settlement negotiations, or any final
judgment entered against the Purchaser on such issue in any such suit or
proceeding defended by the Supplier. The Supplier, at its sole option, shall be
relieved of the foregoing obligations unless the Purchaser notifies Supplier
promptly in writing of such claim, suit or
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proceeding, which notification shall be given not later than ten (10) days after
receipt of written notice of such claim by the Purchaser, and gives the Supplier
authority to proceed as contemplated herein, and, at the Supplier's expense,
gives the Supplier proper and full information and assistance to settle and/or
defend any such claim, suit or proceeding. Notwithstanding the foregoing, the
Supplier shall not settle any such claim, suit, or proceeding without the
written consent of the Purchaser, which shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, the Supplier shall
have no liability under the above indemnity for any claim of injury, illness
and/or death, if such claim arises from use of any Supplied Product that has
been modified, altered, repaired or serviced by any party other than Supplier,
or if such claim arises from any Supplied Product that has been combined with a
product not produced by the Supplier, unless such claim arises from a material
defect in the Supplied Product as originally manufactured by the Supplier. No
settlement or compromise entered into without the Purchaser's prior written
consent shall be binding upon the Purchaser.
8.4 Product Liability Indemnity by Purchaser. The Purchaser of any
Supplied Product shall defend, or at its option settle, any claim, suit or
proceeding brought against the Supplier of such Supplied Product arising out of
any injury, illness, and/or death resulting from (i) any negligent or willful
act or omission by the Purchaser or its employees , agents or other
representatives (including without limitation any false representations made
with respect to Supplied Products) in connection with such Supplied Product, or
(ii) use of a unit of such Supplied Product that has been modified, altered,
repaired, assembled or serviced by the Purchaser, or combined by the Purchaser
with a product not produced by the Supplier, unless such claim is due to a
material defect in such unit of such Supplied Product as originally manufactured
by the Supplier. Notwithstanding the foregoing, the Purchaser shall not settle
any such claim, suit or proceeding without the written consent of the Supplier,
which shall not be unreasonably withheld. No settlement or compromise entered
into without the Supplier's prior written consent shall be binding upon the
Supplier.
9. Limitation of Liability.
EXCEPT AS SET FORTH IN SECTION 8, IN NO EVENT WILL EITHER PARTY HAVE ANY
LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY
OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Confidential Information.
This Agreement shall be governed by the confidentiality provisions set
forth in Section 13 of the R&D Agreement, which are incorporated herein by
reference.
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11. Compliance with Laws.
Any obligation of the Supplier of a Supplied Product to provide units of
such Supplied Product under this Agreement shall be subject in all respects to
all United States laws and regulations governing the license and delivery of
technology and products abroad by persons subject to the jurisdiction of the
United States. The Purchaser of such Supplied Product shall not export, directly
or indirectly, any units of such Supplied Product or related information without
first obtaining all required licenses and approvals from the appropriate
government agencies. The Purchaser shall not export, reexport, or transship,
directly or indirectly, units of such Supplied Product purchased hereunder to
any countries to which such export, reexport or transshipment is prohibited by
applicable United States laws and regulations, including the Export
Administration Act of 1979, as amended, any successor legislation, and the
Export Administration Regulations issued by the U.S. Department of Commerce
Bureau of Export Administration.
12. Term, Termination.
12.1 Term. This Agreement shall become effective as of the Effective
Date and, with respect to any Supplied Product, shall continue in force, until
either (i) the Distribution Agreement expires or is terminated with respect to
such Supplied Product, or (ii) this Agreement is terminated in accordance with
the provisions of this Section 12 (which termination will trigger the
termination of the Distribution Agreement).
12.2 Default. If either party defaults in the performance of any of its
material obligations hereunder and if such default is not corrected within
ninety (90) days after written notice thereof by the other party, then the
nondefaulting party, at its option, may, in addition to any other remedies it
may have, terminate this Agreement by giving written notice of termination to
the defaulting party.
12.3 Insolvency. This Agreement may be terminated by either party, upon
written notice, (i) if the other party becomes insolvent, (ii) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (iii) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in its favor within sixty (60) days thereafter,
(iv) upon the other party's making a general assignment for the benefit of
creditors, or (v) upon the other party's dissolution or ceasing to conduct
business in the normal course.
12.4 Survival. Sections 7.1(i), 7.2, 7.3, 8, 9, 10, 12.4 and 13 and all
payment obligations incurred prior to the termination or expiration of this
Agreement, shall survive such termination or expiration; provided, that Section
13 shall survive any termination or expiration of this Agreement to the same
extent that any of the provisions of the R&D Agreement referred to therein would
survive the expiration or termination of the R&D Agreement.
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13. Additional Provisions.
The following provisions of the R&D Agreement are hereby incorporated by
reference: Sections 9 ("Representations and Warranties"), 13
("Confidentiality"), 14 ("Confidentiality of Agreement"), and 15 ("General").
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
COLLAGEN CORPORATION INNOVASIVE DEVICES, INC.
BY: /s/ Xxxxx XxXxxxxx BY: /s/ Xxxxx X. Xxxxxxx
------------------------------- -------------------------------
PRINT NAME: /s/ Xxxxx XxXxxxxx PRINT NAME: /s/ Xxxxx X. Xxxxxxx
TITLE: Senior Vice President TITLE: Vice President, Chief
Financial Officer
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