Amendment to Marketing Services Agreement between Regeneration Technologies, Inc. - Cardiovascular and ATS Medical, Inc.

Summary

This amendment updates the Marketing Services Agreement between Regeneration Technologies, Inc. - Cardiovascular (RTI-CV) and ATS Medical, Inc. It revises compensation terms, performance requirements, and the agreement's end date, now set for December 31, 2007. The amendment also settles all existing disputes between the parties and rescinds a prior termination of ATS Medical’s exclusivity. Both companies agree to cooperate in marketing and distribution efforts and to meet regularly to review progress. All other terms of the original agreement remain in effect unless specifically changed by this amendment.

EX-10.61 5 c13073exv10w61.txt AMENDMENT TO MARKETING SERVICES AGREEMENT Exhibit 10.61 AMENDMENT TO MARKETING SERVICES AGREEMENT THIS AMENDMENT TO MARKETING SERVICES AGREEMENT (this "Amendment") is made and entered into as of January 1, 2007 (the "Amendment Effective Date") by and between Regeneration Technologies, Inc. - Cardiovascular ("RTI-CV") formerly known as Alabama Tissue Center, Inc. an Alabama corporation, and ATS Medical, Inc. ("ATS Medical"), a Minnesota corporation. WHEREAS, RTI-CV and ATS MEDICAL are parties to a Marketing Services Agreement having an effective date of July 21, 2005 (the "Agreement"); and, WHEREAS, RTI-CV and ATS MEDICAL desire to resolve and settle, by agreeing on the terms and conditions set forth herein, all current disputes that they may have against each other arising out of the Agreement; and WHEREAS, RTI-CV and ATS MEDICAL desire to amend the Agreement on the terms and conditions set forth herein; AGREEMENT NOW THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein, and in consideration of RTI-CV's agreement to rescind its termination of ATS MEDICAL'S exclusivity, and for other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties mutually agree as follows: I. Amendment. The parties mutually agree that the Agreement shall be amended and restated as of the Amendment Effective Date as follows: A. Section 1.16 is added and reads as follows: "'Compensation Minimum' shall mean one hundred seventy five thousand dollars ($175,000) per calendar quarter." B. Section 1.9 is deleted and replaced in its entirety with the following: "'Minimum Performance Level' shall mean total orders received by RTI-CV for Processed Tissue that are at least twenty percent (20%) of the dollar value of the fees associated with the finished Processed Tissue existing in RTI_CV's inventory on the last day of the prior quarter." ** The appearance of a double asterisk denotes confidential information that has been omitted from the exhibit and filed separately, accompanied by a confidential treatment request, with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. C. Section 3.6.1 is deleted and replaced in its entirety with the following: "After the Amendment Effective Date, ATS MEDICAL shall be entitled to Service Compensation as listed below or the Compensation Minimum, whichever is greater. 1. ** of Net Invoice Amount for items in high demand as identified on Exhibit A. 2. ** of Net Invoice Amount for items with secondary demand as identified on Exhibit A. 3. ** of Net Invoice Amount for items that are in low demand as identified on Exhibit A. Exhibit A in the original agreement is deleted and replaced in its entirety with the attached Exhibit A. Notwithstanding the foregoing, if ATS MEDICAL fails to achieve the Minimum Performance Level for two consecutive quarters, ATS MEDICAL shall not be entitled to the Compensation Minimum for the second consecutive quarter in which ATS MEDICAL failed to achieve the Minimum Performance Level, as well as any subsequent quarter where ATS MEDICAL does not achieve the Minimum Performance Level." During each quarter remaining in the Agreement, RTI-CV will use commercially reasonable efforts to release for distribution tissue which is eligible medically and in process as of December 31, 2006. Proportions of high demand, secondary demand and low demand tissues available in Finished Goods inventory at the end of each quarter will be representative of the historical experience of RTI-CV. ATS will use commercially reasonable efforts to distribute all available tissues in cooperation with customer service personnel of RTI-CV during the remaining period of the Agreement. In addition, during the remaining term of the Agreement ATS and RTI-CV will meet, at a minimum, on a monthly basis to discuss marketing and processing fees discount strategies, marketing activities and progress toward the minimum order level goals for the quarter. As long as ATS continues to use commercially reasonable efforts to distribute all available tissues RTI will agree not to exercise its rights under Section 2.4 and Section 2.5. D. Section 8.1 is deleted and replaced in its entirety with the following: "The term of this Agreement shall commence on the Amendment Effective Date herein and shall terminate on December 31, 2007, unless otherwise terminated as provided herein." II. Ratification. Except as amended hereby, the Agreement is hereby ratified and confirmed in all respects. As amended by Section I of this Amendment, the Agreement shall be read and construed as one and the same instrument. The execution of this Amendment is not intended to be, and shall not be construed as, a waiver by either party of any breach of any provision hereof. III. Settlement and Release. In consideration of their respective agreement to this Amendment, the parties hereby settle and release all claims that either party may have against the other as of the Amendment Effective Date that arose out of the Agreement, including, without limitation, any claim for breach under the Agreement arising prior to the Amendment Effective Date. In addition, RTI-CV hereby rescinds its letter to ATS Medical dated January 5, 2007, which purported to terminate ATS Medical's right to exclusivity under the Agreement. [remainder of page intentionally left blank] IN WITNESS WHEREOF, each of the parties has caused this AMENDMENT TO MARKETING SERVICES AGREEMENT to be executed by their respective duly authorized representatives as of the date first above written. REGENERATION TECHNOLOGIES, INC. - CARDIOVASCULAR. By: /s/ Thomas F. Rose ------------------------------------ Print name: Thomas F. Rose Its: Vice President & CFO Date: 1/26/07 ATS MEDICAL, INC. By: /s/ Richard A. Curtis ------------------------------------ Print name: Richard A. Curtis Its: Vice President Date: 1/26/07 EXHIBIT A RTI CARDIOVASCULAR - CURRENT INVENTORY IDT Product Code: (ALL) Tissue Type: (ALL) Blood Type: (ALL)