Fiscal Year Ended July 31

** Information marked as "[redacted**]" has been omitted pursuant to a request for confidential treatment and has been filed separately with the Securities and Exchange Commission.

This AMENDMENT No. 2 (the “Second Amendment”):

 

DePuy Synthes Products, LLC, utilizing the Codman Neuro brand name, with a primary business address at 325 Paramount Drive, Raynham, MA 02767, a Delaware company (“DSP”),  a successor of Codman and Shurtleff, Inc. (“Codman”) with respect to the agreements that are the subject hereof, and

 

Synergetics USA, Inc., 3845 Corporate Centre Drive, O'Fallon, Missouri 63368, a Delaware corporation ("Synergetics");

 

WHEREAS, Synergetics has designed and developed certain bipolar electrosurgical forceps (as further described herein) not previously included within the scope of the Distribution Agreement, and the parties desire pursuant hereto to extend the scope of the Distribution Agreement and the Trademark Agreement to cover such forceps and such other products now enumerated in Schedule A attached hereto but which were not previously included in the respective written agreement; and

 

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements hereinafter set forth, the parties hereto agree as follows.

 

1.

Distribution Agreement.  The Distribution Agreement is amended by deletion of Schedule A (Existing Products) thereof, which schedule is hereby replaced with Schedule A attached hereto and incorporated herein and incorporated into the Distribution Agreement hereby.  As Schedule D (Product Specifications) is no longer applicable due to the changes in the list of Existing Products effected hereby, Schedule D is deleted.  A new Schedule D may be added to the Distribution Agreement at a later date when the parties have finalized the identification of appropriate specification documents.

 

2.

Trademark Agreement.  The Trademark Agreement is amended to remove from its Schedule A (Products) those Products that were listed in any embodiment of the Distribution Agreement Schedule A (Existing Products) in existence heretofore, and further amended to insert into the Trademark Agreement Schedule A (Products) all of the Products listed in the revised Distribution Agreement Schedule A (Existing Products), as is incorporated hereby into the Distribution Agreement, and is shown in Exhibit A hereto.

 

3.

SPETZLER Sublicense.  The sublicense under the Spetzler License Agreement granted to Codman by Synergetics in the First Amendment is amended to include within the scope thereof those Spetzler-Malis branded forceps added to the Distribution Agreement by this Second Amendment, such that all Spetzler-Malis branded forceps listed in Distribution Agreement Schedule A (shown in Exhibit A hereto) shall be included within the scope of the sublicense.  For clarity regarding such sublicense, DSP shall be responsible for paying directly to the licensor (Dr. Robert F. Spetzler) the royalty due under the sublicense, based on DSP’s product sales, particularly such royalty due based upon DSP’s sales of Spetzler-Malis branded forceps.

4.

Miscellaneous Provisions.

a.

General Representation and Warranty.  Each Party represents and warrants to the other that the execution and delivery of this Amendment and the performance of the obligations contemplated hereunder do not violate any law, rule or regulation or order, judgment or decree binding upon the representing Party and will not result in a breach of any term of the certificate of incorporation or by-laws of the representing Party or of any contract, agreement or other instrument to which it is a party.

 

b.

Governing Law. The Amendment shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to the choice of law provisions thereof.

c.

Counterparts.  This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  An executed counterpart of this Second Amendment delivered by electronic means (such as telephonic facsimile or electronic mail) shall have the same binding effect as if delivered as a paper copy bearing an original, hand-written signature.

** Information marked as "[redacted**]" has been omitted pursuant to a request for confidential treatment and has been filed separately with the Securities and Exchange Commission.