Exhibit 10.34

 

DEVELOPMENT AND LICENSEAGREEMENT

 

THIS DEVELOPMENTAGREEMENT (the “**Agreement**”) is made and entered into as of November 26th,2001, (the “**Effective Date**”) between VITAL IMAGES, INC. (as defined below,“**VTAL**”)and SURGICAL NAVIGATION TECHNOLOGIES, INC. (as defined below, “**SNT**”).

**WITNESSETH:**

WHEREAS, VTAL hasexpertise in the development, manufacture and distribution of volume renderingand visualization software for radiology; and

WHEREAS, SNT has expertise in the development,manufacture and distribution of visualization and surgical planning software;and

 

WHEREAS, VTAL and SNT desire to enter into anagreement to utilize each other’s expertise in the 2D and 3D visualization andsurgical planning marketplace; and

 

WHEREAS, it is the desire of the parties that SNTshall market and sell products developed by VTAL into the image guided surgeryand surgical planning marketplaces and that VTAL market and sell products ithas developed into the radiology and surgical planning marketplaces; and

 

WHEREAS, the parties desire to work together toproduce certain “Products” (as defined below);

 

NOW THEREFORE, inconsideration of the representations, warranties, covenants and agreementscontained herein, and for other valuable consideration, the receipt andadequacy of which is hereby acknowledged, the parties mutually agree asfollows:

**ARTICLE 1DEFINITIONS**

## 1.1           Specific Definitions.  As used in this Agreement, the followingterms shall have the meanings set forth or as referenced below:

**“Affiliate”** of a specified person (natural or juridical) means aperson that directly, or indirectly through one or more intermediaries,controls, or is controlled by, or is under common control with, the personspecified.  “Control” shall meanownership of more than 50% of the shares of stock entitled to vote for theelection of directors in the case of a corporation, and more than 50% of thevoting power in the case of a business entity other than a corporation.

**“Agreement”** means this Agreement and all Appendices and ProductPlans hereto.

**“API”**means an application programming interface.

 

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**“Confidential Information”** means know-how, trade secrets, and unpublishedinformation disclosed (whether before or during the term of this Agreement) byone of the parties (the “disclosing party”) to the other party (the “receivingparty”), and which is marked as proprietary or confidential as provided below,excluding information that:

### (a)           was already in the possession ofreceiving party prior to its receipt from the disclosing party (provided thatthe receiving party is able to provide the disclosing party with reasonabledocumentary proof thereof);

### (b)           is or becomes part of the publicdomain by reason of acts not attributable to the receiving party;

### (c)           is or becomes available to receivingparty from a source other than the disclosing party which source, to thereceiving party’s Knowledge, has rightfully obtained such information and hasno obligation of nondisclosure or confidentiality with respect thereto;

### (d)           is made available by the disclosingparty to a third party unaffiliated with the disclosing party on anunrestricted basis;

### (e)           is independently developed by thereceiving party completely without reference to any Confidential Information ofthe disclosing party, as evidenced by the receiving party’s written records; or

### (f)            has been or must be publiclydisclosed by reason of legal, accounting or regulatory requirements beyond thereasonable control, and despite the reasonable efforts, of the receiving party;provided, with respect to this Paragraph (f), that the other party gives thedisclosing party reasonable notice in order to permit the disclosing party tocontest such requirement of disclosure.

All ConfidentialInformation disclosed by one party to the other under this Agreement shall bein writing and bear a legend “Proprietary,” “Confidential” or words of similarimport or, if disclosed in any manner other than writing, shall be followed bya written description of the Confidential Information and confirmation thatsuch information is confidential by the disclosing party within 30 days afterthe non-written disclosure.

**“Current SNT IGS Systems”** means each of the following SNT IGS Systems:StealthStation® system, TreonTM system, TreonTM ENT system and LandmarXTM systemand successors thereto, in each case to the extent running on the SGI 02Platform, but not replacements thereof.

**“FDA”** means the United States Food and Drug Administration.

**“Force Majeure”**means any event or condition, not existing as of thedate of this Agreement, not reasonably foreseeable as of such date and notreasonably within the control of the affected party, which prevents in whole orin material part the performance by such party of its obligations hereunder,such as an act of government, war or related actions, civil insurrection, riot,sabotage, strike, epidemic, fire, flood, windstorm, and similar events.

 

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**“GAAP”**means United States generally accepted accounting principlesconsistently applied.

**“GMP”** means Good Manufacturing Practices as defined in 21 CFR Parts 800through 898 as applicable.

**“IGS System”** means any image guided surgery system or product.

**“Intellectual Property”**means U.S. andforeign patents and patent applications, trademarks, service marks andregistrations thereof and applications therefor, copyrights and copyrightregistrations and applications, mask works and registrations thereof, know-how,trade secrets, inventions, discoveries, ideas, technology, data, information,processes, drawings, designs, licenses, computer programs and software, andtechnical information including but not limited to information embodied inmaterial specifications, processing instructions, equipment specifications,product specifications, confidential data, electronic files, researchnotebooks, invention disclosures, research and development reports and the likerelated thereto and all amendments, modifications, and improvements to any ofthe foregoing.

**“Invention”** means any invention, discovery, know-how, tradesecret, data, information, technology, process or concept, whether or notpatented or patentable, and whether or not memorialized in writing.

**“Knowledge”** means actual knowledge of a fact or the knowledgethat such person could reasonably be expected to have based on reasonableinquiry.  The “knowledge” of an entityshall include the knowledge of such entity’s employees.

**“Net Sales”** of Products for purposes of this Agreement withrespect to a particular period means the difference between amounts recognizedas revenue on a consolidated basis in accordance with GAAP by SNT with respectto the sale, licensing or other disposition of a designated Product minus anydeductions from such revenue by reason of rejections, credits or returns ofsuch Products the revenue from which was previously so recognized,  (and excluding to the extent includedtherein revenue from licenses to use such Product in clinical trials or othertesting, sales, occupation or excise taxes, freight, duty or insurance,discounts and allowances, all determined in accordance with GAAP); provided that if SNT recognizes incomewith respect to a Product sold at a single price or rate as part of apackage/combination of products, not all of which if sold individually would beProducts, then “Net Sales” with respect to a sale of such package shall equalthe greater of (i) the average revenue per such Product recognized by SNT inaccordance with GAAP with respect to its sale, licensing or other disposition,on a consolidated basis during such period or (ii) the average revenue persuch package/combination of products recognized in accordance with GAAP on aconsolidated basis during such period multiplied by a fraction, the numeratorof which is the average list price during such period of the Product includedin such package/combination of products and the denominator of which is the sumof average list prices during such period of all products, including theProduct, included in such package/combination.

**“Product”** means any product developed pursuant to a ProductPlan under this Agreement.

 

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**“Product Plan”** means, with respect to each Product, themutually-agreed upon and signed written description of the development processfor such Product anticipated to be in the form of Appendix A hereto, as amendedfrom time to time by written agreement thereto.

**“Proposed Product”** means the following products, each of which areexpected to become a Product under a Product Plan: a) a product incorporatingthe VRE into the Current SNT IGS Systems, b) a product incorporating the VRE onto a computer platform other than IGS 02 Platform, c) a product to be known asthe *Vitrea®*OR, expected to be a standard *Vitrea®**2, version 2.0* productadapted for use on the Current SNT IGS Systems; d) a product to be known asvarious types of *Vitrea®* Therapy Application Modules, beingApplication-specific planning modules (e.g., vascular, AAAs, basal ganglia,calcium scoring, etc.) for use on the Current SNT IGS Systems; e) a product to beknown as the *Vitrea®* — SNT IGS Link, being a planning protocol to bridgeradiology and the operating room, by transfers of fiducial information gatheredby the *Vitrea®*product to a Current SNT IGS Systems; f) a product to be known as *Vitrea®* with SNT IGS Link, being a *Vitrea®*basedvisualization and planning station for surgeons and g) a product under whichinformation gathered by the *Vitrea2®* can be transferred to the CurrentSNT IGS Systems.

**“IGS 02 Platform”** means the IGS O2 platform with the IRIX6.5 operating system.

**“SNT”** means SNT, Inc. and its Affiliates.

**“Specifications”** means the specifications for a Product as set forthin the respective Product Plan as amended from time to time.

**“VRE”** means the *Vitrea®*volume rendering engine withrespect to a specified platform, e.g., IGS O2 or Windows® software platform, asthe same exists on the date hereof or as is otherwise agreed in the applicableProduct Plan.

**“VTAL”** means Vital Images, Inc. and its Affiliates.

## 1.2           Meaning of “Sale”.  In addition to the foregoing,  terms such as “sale” and “purchase” andvariants and synonyms thereof when used with reference to the supply of anysoftware product are used herein for convenience only and refer to transactionsinvolving the grant of a software license for product.

## 1.3           Other Terms.  Other terms may be defined elsewhere in thetext of this Agreement and shall have the meaning indicated throughout thisAgreement.

## 1.4           Definitional Provisions.  The term “person” includes any individual,partnership, joint venture, corporation, trust, unincorporated organization orgovernment or any department or agency thereof.

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**ARTICLE2DEVELOPMENT OF PRODUCTS**

## 2.1           Development Efforts.  VTAL and SNT will work together to developProducts according to each Product Plan attached hereto or added from time totime.

 

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## 2.2           Product Plans.  Product Plans Products may be executed fromtime to time  by the parties as and whenthey reach agreement thereon.  EachProduct Plan, when signed by both parties, shall be subject to the generalterms and provisions of this Agreement; provided that to the extent of anyconflict between the terms hereof and the terms of a Product Plan, the terms ofthe Product Plan will control.  Theparties affirm their intention to enter into a Product Plan with respect toeach Proposed Product, but no Proposed Products shall be a Product unless anduntil a Product Plan with respect thereto is executed by the parties.

## 2.3           Reports and Records.  Within fifteen (15) days after the end ofeach month, VTAL shall provide to SNT a reasonably detailed report settingforth a summary of the development activities of VTAL under each Product Planduring such month and the status of development of each Product as of the endof such month.

## 2.4           Regulatory.

### (a)           VTAL shall, at its cost and expense,use commercially reasonable efforts to ensure that each Product is produced andpackaged in accordance with all applicable regulations in the USA, Canada andthe countries of the European Union as constituted on the date hereof,including without limitation the FDA and CE Mark per Medical Device Directive(MDD 93/42/EEC), and shall bear all costs related to such compliance.  Responsibility for production compliancewith the regulations of any other governmental unit and paying the cost thereofshall be agreed to and allocated as set forth in the applicable Product Plan.

### (b)           SNT shall be responsible forobtaining all other regulatory approvals for the commercial sale of Products,including the preparation of the clinical study protocols, selection ofinvestigational sites, preparation of the investigator’s brochures, instructionand training of clinical investigators, monitoring the performance of clinicaltrials, data collection and analysis, reporting of adverse events, preparationand prosecution of regulatory submissions, and post approval clinicalstudies.  All regulatory approvals forthe Products will be in SNT’s name and owned by SNT.  In connection with the foregoing:

### (c)           VTAL shall supply to SNT suchquantities of Products as is reasonably required by SNT to obtain necessaryregulatory approvals.  Unless otherwisespecified in the Product Plan, SNT shall pay VTAL an amount equal to VTAL’sdirect cost of materials and labor for such Products supplied to SNT for use inobtaining necessary regulatory approvals.

### (d)           VTAL will grant SNT the right ofreference to VTAL’s regulatory files with the FDA or other appropriategovernment agencies as necessary or helpful for support of SNT’s regulatory submissionswith respect to Products and, upon SNT’s request participate in any discussionswith the FDA or clinical investigators with respect thereto****at SNT’s expense.

## 2.5           Termination of Product Plan.  SNT shall be entitled to terminate anyProduct Plan for a Product if SNT, in its sole discretion, determines that suchProduct will not be technically or commercially feasible or will have onlylimited commercial value to SNT. Payment for any 

 

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## work performed by VTAL inconnection with a terminated Product Plan will be as provided in the ProductPlan.  If the terminated Product Plan issilent on the issue of payment, SNT shall pay VTAL the actual costs that it hasincurred in performance of its duties under the Product Plan.

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**ARTICLE 3MARKETING OF PRODUCTS**

## 3.1           VTAL Exclusivity. VTAL shallnot, nor shall it permit its Affiliates to, incorporate, or facilitate theintegration of its volume rendering engine into any IGS System sold orotherwise made available by persons other than SNT.

## 3.2           SNT Exclusivity.   SNT shall not, nor shall it permit itsAffiliates to, incorporate, or facilitate the integration of, a volumerendering engine of any person other than VTAL into any IGS System sold orotherwise made available by SNT; provided that the foregoing shall not precludeSNT from selling or otherwise making available an IGS System feature developedby a non-Affiliated third party which includes a different volume renderingengine.

3.3           Cooperation.  SNT and VTAL will cooperate on marketing andsales of Products.  VTAL and SNT willimplement a lead-sharing program and cite each other in marketing literaturerelating to Products.  All demonstrationsoftware related to Products shall be provided to the other party free ofcharge and demonstration hardware related to Products, if purchased from theother party, shall be transferred to the other party at standard cost.  Within fifteen (15) days of the date hereof(i) SNT shall provide to VTAL a then current list, including contactinformation, with respect to licensees of any of the Current SNT IGS systems and (ii) VTAL shall provide to SNT athen current list, including contact information, with respect to licensees ofits  *Vitrea® 2* product.

 

3.4           DistributionTerritory.  The distributionterritory for all Products shall be the entire world.

 

**ARTICLE4**

# **ROYALTIES AND OTHERPAYMENTS**

 

## 4.1           Reports and Payments.  Within sixty (60) days of the end of eachSNT fiscal quarter, SNT shall provide VTAL with a written report indicating theNet Sales of Products by SNT, as well as other reasonably detailed informationsupporting the amount of any non-Net Sales based payments due to VTAL by theterms of any Product Plan, in relation to such quarter, and shallsimultaneously pay to VTAL all Net Sales based and non-Net Sales based amountsdue with respect to such fiscal quarter. Within sixty (60) days of the end of each VTAL fiscal quarter, VTALshall provide SNT with reasonably detailed information supporting the amount ofany payments due to SNT by the terms of any Product Plan in relation to suchquarter, and shall simultaneously pay to SNT such amounts.

## 4.2           Records.  Each party agrees to keep accurate writtenrecords sufficient in detail and where applicable in accordance with GAAP, toenable the verification and audit of any payments due the other under eachProduct Plan.  Such records shall beretained by each party for a period of not less than three (3) years after eachsuch quarter.

## 4.3           Audit of Records.  Upon reasonable notice and during regularbusiness hours, each party (the “Audited Party”) shall from time to time (butno more frequently than once annually) make 

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## available its recordsreferred to in Article 4.2 for audit by independent certified public accountingrepresentatives selected by such other party and reasonably acceptable to theAudited Party, at such other’s expense, to verify the accuracy of the reportsprovided by the audited Party hereunder. Such representatives shall execute a suitable confidentiality agreementreasonably acceptable to the Audited Party prior to conducting such audit.  If under-payment or under–reportingresulting in under–payment of royalties is verified during any audit inan amount in excess of five percent (5%) of the total amount due, then theAudited Party shall (i) reimburse the other party for the cost of such auditand (ii) pay to the other party the amount found to be due by such independentcertified public accounting representatives together with interest from thedate due until the date of payment at a rate of one percent (1%) per month.

 

**ARTICLE 5****REPRESENTATIONS,WARRANTIES, DISCLAIMERS AND LIMITATIONS**

 

## 5.1           Representations of VTAL.  VTAL represents, warrants and covenants toSNT that:

### (a)           VTAL is a corporation duly organized,validly existing, and in good standing under the laws of the State of Minnesotaand has full company power to conduct the business in which it is presentlyengaged and to enter into and perform its obligations under this Agreement.

### (b)           VTAL has taken all necessary companyaction under the laws of the state of its organization and its articles oforganization and operating agreement to authorize the execution andconsummation of this agreement and, when executed and delivered by VTAL, thisagreement shall constitute the valid and legally binding agreement of VTALenforceable against VTAL in accordance with the terms hereof, subject tobankruptcy, insolvency, fraudulent transfer, reorganization, moratorium andsimilar laws of general applicability relating to or affecting creditors’rights and to general equity principles.

### (c)           Neither the execution and delivery ofthis agreement nor the consummation of the transactions contemplated hereinwill violate any provision of the articles of organization or operatingagreement of VTAL or any law, rule, regulation, writ, judgment, injunction,decree, determination, award or other order of any court or governmental agencyor instrumentality, domestic or foreign, or conflict with or result in anybreach of any of the terms of or constitute a default under or result intermination of or the creation or imposition of any mortgage, deed of trust,pledge, lien, security interest or other charge or encumbrance of any naturepursuant to the terms of any contract or agreement to which VTAL is a party orby which VTAL or any of its assets is bound.

### (d)           VTAL owns, or has valid andsubsisting right to grant each license set forth in Product Plan, subject to nolien, charge or encumbrance whatsoever. To VTAL’s Knowledge, all pending patent applications with respect toeach product to which a license is granted to SNT in a Product Plan are validand the claims described therein patentable. To VTAL’s Knowledge, SNT’s exploitation of each license set forth inProduct Plan will not infringe, misappropriate, misuse or 

 

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### conflictwith the rights of third parties.  ToVTAL’s Knowledge, no person or entity nor such person’s or entity’s business orproduct has infringed, misused or misappropriated the technology which is thesubject of a license set forth in Product Plan.

### (e)           To VTAL’s Knowledge, there are noactions, suits, claims, disputes or proceedings or governmental investigationspending or threatened against VTAL with respect to any license set forth inProduct Plan, either at law or in equity, before any court or administrativeagency or before any governmental department, commission, board, bureau, agencyor instrumentality, or before any arbitration board or panel whether located inthe United States or a foreign country, other than patent applications beingprosecuted before the applicable patent authority by VTAL or itslicensors.  To VTAL Knowledge, VTAL hasnot failed to comply with any law, rule, regulation, writ, judgment,injunction, decree, determination, award or other order of any court or othergovernmental agency or instrumentality, domestic or foreign, which failure inany case would in any material respect impair any rights of SNT under thisAgreement.

(f)            EachProduct to be licensed under this Agreement will have been produced andpackaged in accordance with all applicable laws and regulations, including (asapplicable) FDA and GMP requirements and European Medical Device Directiverequirements, as well as applicable ISO 9001 or successor certificationrequirements, of the USA, Canada and the countries of the European Union asconstituted on the date hereof and any other countries required by theapplicable Product Plan, including without limitation the FDA and CE Mark perMedical Device Directive (MDD 93/42/EEC), and shall bear all costs related tosuch compliance.  Upon prior writtennotice, VTAL shall allow SNT’s regulatory personnel to be provided withreasonable access from time to time to the facilities and records of VTAL forthe purpose of confirming VTAL’s and the Product’s compliance with thisrepresentation and warranty.  VTAL’sentire liability, and SNT’s exclusive remedy, for any warranty claim made bySNT under this Subarticle  5.1(f) shallbe for VTAL (i) use commercially reasonable efforts to bring itself and allProducts into conformity with this representation and warranty and (ii) to theextent required by applicable law, at its option, to either (a) replace any defectivemedia which prevents the Product from satisfying the limited warranty describedin Article 5.1; (b) attempt to correct any material and reproducible errorsreported by SNT provided however if VTAL is unsuccessful in such attempts VTALagrees to take action under either (a) or (c) of this Clause (f); or (c)terminate the relevant Product Plan and refund all fees paid under theapplicable Product Plan for the affected Product, less charges for the previoususage of such Product based on a ten year amortization from the date of sale,or in the case of fees based on the grant of a sublicense, from the date ofgrant of the sublicense.  VTAL does notwarrant that the operation of any Product will be uninterrupted or error-free,that all errors in a Product will be corrected, that any Product will satisfySNT’s requirements where they differ from the specification 

 

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defined in the respective Product Plan or that any Product will operatein the combinations which SNT may select for use.

## 5.2           Representations of SNT.  SNT represents, warrants and covenants toVTAL that:

### (a)           Surgical Navigation Technologies,Inc. is duly incorporated in Delaware and is a wholly owned subsidiary ofMedtronic, Inc., a corporation duly organized, validly existing and in goodstanding under the laws of the State of Minnesota.

### (b)           SNT has full corporate power toconduct the business in which it is presently engaged and to enter into andperform its obligations under this agreement.

### (c)           SNT has taken all necessary companyaction under the laws of the state of its organization and its articles oforganization and operating agreement to authorize the execution andconsummation of this agreement and, when executed and delivered by SNT, thisagreement shall constitute the valid and legally binding agreement of SNTenforceable against SNT in accordance with the terms hereof, subject tobankruptcy, insolvency, fraudulent transfer, reorganization, moratorium andsimilar laws of general applicability relating to or affecting creditors’rights and to general equity principles.

### (d)           Neither the execution and delivery ofthis agreement nor the consummation of the transactions contemplated hereinwill violate any provision of the articles of organization or operatingagreement of SNT or any law, rule, regulation, writ, judgment, injunction,decree, determination, award or other order of any court or governmental agencyor instrumentality, domestic or foreign, or conflict with or result in anybreach of any of the terms of or constitute a default under or result intermination of or the creation or imposition of any mortgage, deed of trust,pledge, lien, security interest or other charge or encumbrance of any naturepursuant to the terms of any contract or agreement to which SNT is a party orby which SNT or any of its assets is bound.

### (e)           To SNT’s Knowledge, SNT has notfailed to comply with any law, rule, regulation, writ, judgment, injunction,decree, determination, award or other order of any court or other governmentalagency or instrumentality, domestic or foreign, which failure in any case wouldin any material respect impair any rights of VTAL under this Agreement.

5.3           Limited Warranty.  THE EXPRESS WARRANTIES SET FORTH IN THISAGREEMENT OR IN ANY PRODUCT PLAN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSOR IMPLIED, WHICH ARE HEREBY SPECIFICALLY DISCLAIMED, INCLUDING WITHOUTLIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE OR USE.

 

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## 5.4           No Consequential Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FORCONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN THOUGH IT MAY HAVEBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

**ARTICLE 6INDEMNIFICATION**

 

## 6.1           VTAL’s Liability.  VTAL shall indemnify, defend and holdharmless SNT and each of its officers, directors, employees, shareholders anddistributors from and against and in respect of any and all demands, claims,actions or causes of action, assessments, losses, damages, liabilities,interest and penalties, costs and expenses (including, without limitation,reasonable legal fees and disbursements incurred in connection therewith and inseeking indemnification therefor, and any amounts or expenses required to bepaid or incurred in connection with any action, suit, proceeding, claim,appeal, demand, assessment or judgment) finally awarded (“IndemnifiableLosses”), resulting from, arising out of, or imposed upon or incurred by anyperson to be indemnified hereunder by reason of (i) its negligence or grossmisconduct, (ii) personal injury or product damage resulting from the failureof a VTAL Product to meet its Specification or (iii) a VTAL Infringement (asdefined below).  VTAL shall maintainproduct liability insurance or self-insurance in such amounts as ordinary goodbusiness practice for its type of business would make advisable and shallprovide SNT with evidence of this coverage. For purposes of this Agreement, a “VTAL Infringement” means(a) infringement by a Product of a third party’s patent, copyright ortrademark to the extent not arising out of the requirements specified by SNTfor such Product or the information or designs SNT provides to VTAL forincorporation into such Product; or (b) provision by VTAL of amisappropriated trade secret of a third party for incorporation into a Product.

## 6.2           SNT’s Liability.  SNT shall indemnify, defend and holdharmless VTAL and each of its officers, directors, employees, shareholders fromand against and in respect of any and all Indemnifiable Losses resulting from,arising out of, or imposed upon or incurred by any person to be indemnifiedhereunder by reason of (i) its negligence or gross misconduct, (ii) personalinjury or product damage resulting from a Product except to the extent VTALmust indemnify SNT with respect thereto under Article 6.1 or (iii) a SNTInfringement (as defined below).  SNTshall maintain product liability insurance or self-insurance in such amounts asordinary good business practice for its type of business would make advisableand shall provide VTAL with evidence of this coverage.  For purposes of this Agreement, a “SNTInfringement” means (a) infringement by a Product of a third party’s patent,copyright or trademark except to VTAL must indemnify SNT with respect theretounder Article 6.1 or (b) provision by SNT of a misappropriated tradesecret of a third party for incorporation into a Product.

## 6.3           Procedure.  If a claim by a third party is made and aparty (the “Indemnitee”) intends to claim indemnification under this Article 6,the Indemnitee shall promptly notify the other party (the “Indemnitor”) inwriting of any claim in respect of which the Indemnitee or its Affiliates andany of their respective directors, officers, employees, shareholders ordistributors intends to claim such indemnification.  If the Indemnitor accepts liability for indemnifying Indemniteehereunder, Indemnitor shall have sole control of the defense and/or settlementthereof; provided that the Indemnitee may participate in any such proceedingwith counsel of its choice at its own expense. The indemnity agreement in this Article 6 shall not apply to amountspaid in settlement 

 

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## of anyIndemnifiable Losses if such settlement is effected without the consent of theIndemnitor, which consent shall not be withheld unreasonably.  The failure to deliver written notice to theIndemnitor within a reasonable time after the commencement of any such action,if adversely prejudicial to its ability to defend such action, shall relievesuch Indemnitor of any liability to the Indemnitee under this Article 6 but theomission to so deliver written notice to the Indemnitor shall not relieve theIndemnitor of any liability that it may otherwise have to any Indemnitee otherthan under this Article 6.  If theIndemnitor fails to provide defense of the claim, and diligently defend orsettle the same after receipt of notice from Indemnitee of, and a reasonableopportunity to cure, such failure, the Indemnitee may defend or settle theclaim without prejudice to its rights to indemnification hereunder, providedthat the Indemnitee does so diligently and in good faith and further does notenter into any settlement or agree to any stipulation that would adverselyaffect the rights of the Indemnitor or impose any additional obligation on theIndemnitor without the Indemnitor’s prior written consent (which consent willnot be unreasonably withheld).  The Indemniteeunder this Article 6, its employees and agents, shall cooperate fully with theIndemnitor and its legal representatives and provide full information in theinvestigation of any Indemnifiable Losses covered by this indemnification.

## 6.4           If any Product should become thesubject of any claim, suit or proceeding for infringement of any third partyUnited States or Canadian patent or any copyright, trade secret or trademark,or in the event of any adjudication that any Product infringes upon any thirdparty United States or Canadian patent, or any copyright, trade secret ortrademark, or VTAL reasonably believes that either such event is likely tooccur, VTAL shall consult with SNT and, at VTAL’s expense and at its option,shall secure for SNT and its sublicensee’s the right to continue using suchProduct; replace or modify the Product to make it noninfringing in a mannerreasonable acceptable to SNT; or, if commercially reasonable efforts to achievethe foregoing are unsuccessful, VTAL shall have the right to terminate thelicense for such Product and pay to SNT an amount equal to the fee paid for itunder the applicable Product Plan, less charges for the previous usage of theProduct based on a ten year amortization from the date such fee was paid.

 

**ARTICLE 7TERM AND TERMINATION**

 

## 7.1           Term.  This Agreement shall take effect as of thedate hereof and shall continue in force until the fifth (5th)anniversary of the date hereof.  Nothingcontained in this Agreement will be interpreted as requiring either party torenew or extend this Agreement beyond the initial term hereof.

## 7.2           Termination.  Notwithstanding the provisions of Article7.1 above, this Agreement may be terminated in accordance with the followingprovisions:

### (a)           A party may terminate this Agreementby giving notice in writing to the other party if the other party is in breachof any material representation, warranty or covenant of this Agreement and,except as otherwise provided herein, shall have failed to cure such breachwithin 90 days after receipt of written notice thereof from the first party;

### (b)           Either party may terminate thisAgreement if all or substantially all of either party’s assets are acquired orif all or substantially all of either party’s 

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### businessthat relates to this Agreement are acquired, upon twelve (12) months priorwritten notice to the other party, which notice must be given within 90 daysafter it learns of such acquisition; and

### (c)           A party may terminate this Agreementat any time by giving notice in writing to the other party, which notice shallbe effective upon dispatch, should the other party become insolvent, make anassignment for the benefit of creditors, go into liquidation or receivership orotherwise lose legal control of its business.

## 7.3           Rights and Obligations onTermination.  In the event oftermination of this Agreement for any reason, the parties shall have thefollowing rights and obligations:

### (a)           Termination of this Agreement shallnot release either party from the obligation to make payment of all amountspreviously due and payable.

### (b)           The terminating party shall have theright, at its option, to cancel any or all purchase orders that provide fordelivery after the effective date of termination.

### (c)           Upon termination of this Agreementfor any reason, nothing herein shall be construed to release either party fromany obligation that matured prior to the effective date of such termination.

### (d)           Upon any termination of thisAgreement, the parties will return and deliver to the other party all of suchparty’s materials and documents developed during the performance of thisAgreement provided that a party may retain one copy of such material anddocuments in the possession of its law department or with its lawyers for thesole and only purpose of determining the party’s obligation of confidentialityhereunder.

### (e)           Upon any termination of thisAgreement by SNT, SNT may nevertheless : a) continue making, using andsublicensing Products for a period of eighteen (18) months followingtermination provided SNT continues to pay VTAL the royalties or transfer costdue under Article 4 and b) service and support customers that have licensedProducts during or prior to the eighteen (18) month period, including in thecase of the VRE through use of any API licensed under the applicable productplan, provided that the foregoing shall not be deemed to obligate VTAL toprovide to SNT source code for any Product.

### (f)            The parties’ obligations pursuant toArticle 4, Article 5, Article 6, Article 7.3, Article 8, Article 9 and Article10 hereof and any and all other terms and provisions hereof intended to beobserved and performed by the parties after the termination hereof, shallsurvive termination of this Agreement. All other provisions of this Agreement shall terminate upon terminationof this Agreement.

 

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**ARTICLE 8INTELLECTUAL PROPERTY AND CONFIDENTIALITY**

 

## 8.1           Ownership of Intellectual Property.  All Intellectual Property developed solelyby the employees or agents of one party, including but not limited to alldesigns and specifications for Products and all manufacturing processesspecific to Products, shall be owned by the inventing party.  Each work of authorship created by employeesof, or consultants or agents working for each party in connection with suchparty’s development of Products under this Agreement shall be considered a“work for hire” and all copyrights thereto shall be owned by such party.  EachInvention made jointly by VTAL and SNT employees shall be jointly owned by VTALand SNT.  VTAL or SNT may elect to filea joint patent or other Intellectual Property application(s) thereon and shallnotify the other party promptly upon making this election.  The parties agree that each party’semployees necessary to execute, file and prosecute such patent or other IPapplications will fully cooperate in the preparation, filing and prosecution ofsuch patent applications.  Both VTAL andSNT agree to cooperate in the filing and prosecution of any and all patentand/or other Intellectual Property applications jointly owned by VTAL and SNT.

## 8.2           Trademarks.  No licenses to trademarks or service marksof a party are granted hereby.

## 8.3           Transfer of Know-How.  Except as expressly provided in thisAgreement, neither party shall be required to transfer confidential andproprietary know-how owned by or licensed to such party to the other party.

8.4           VTAL Property.  All specifications, drawings, samples,designs, software, firmware, programs, formulas, and other items and information,including, without limitations improvements to the Product furnished by VTAL toSNT in connection with this Agreement shall only be used in the performance ofwork for VTAL and shall remain the property of VTAL; and together with allcopies thereof shall be disposed of or returned in good repair, normal wear andtear excepted, by SNT to VTAL at VTAL’s direction and expense upon VTAL’srequest.  SNT assumes risk of loss anddamage to said items while in its possession or under its control.  SNT shall notify VTAL promptly whenever anyitems of VTAL’s tangible property are in need of repair or replacement.  VTAL’s property shall be marked or otherwiseadequately identified by SNT as property of VTAL for use only under thisAgreement and shall be safely stored. SNT waives any right it may have in law or equity to withhold VTAL’sproperty.

 

8.5           SNT Property.  All specifications, drawings, samples,designs, software, firmware, programs, formulae, and other items andinformation, including, without limitations improvements to the Productfurnished by SNT to VTAL in connection with this Agreement shall only be usedin the performance of work for SNT and shall remain the property of SNT; andtogether with all copies thereof shall be disposed of or returned in goodrepair, normal wear and tear excepted, by VTAL to SNT at SNT’s direction andexpense upon SNT’s request.  VTALassumes risk of loss and damage to said items while in its possession or underits control.  VTAL shall notify SNTpromptly whenever any items of SNT’s tangible property are in need of repair orreplacement.  SNT’s property shall bemarked or otherwise adequately identified by VTAL as property of SNT for useonly under this Agreement and shall be safely stored.  VTAL waives any right it may have in law or equity to withholdSNT’s property.

 

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## 8.6           Confidentiality.  With respect to any Confidential Informationof a party to which the other party gains access in connection with thisAgreement, the following terms and conditions shall apply:

### (a)           Each party shall maintain allConfidential Information of the other in secrecy and confidence;

### (b)           Each party expressly agrees that, ineach instance, without the other party’s prior written consent, it shall notdisclose or divulge any of the Confidential Information of the other party toany third party or to that party’s employees unless they are bound to maintainit in confidence and use it only in furtherance hereof;

### (c)           Each party expressly agrees that, ineach instance, without the other party’s prior written consent, it shall notuse the Confidential Information of the other party for any purpose other thanin connection with the transactions contemplated hereby;

### (d)           Each party expressly agrees that, in eachinstance, without the other party’s prior written consent, it shall not makeany copies of, excerpts from or in any way reproduce any of the ConfidentialInformation of the other party, except as may be specifically required infurtherance of the transactions contemplated hereby; Where reproductions arepermitted in accordance with this Agreement or such consent, each reproductionshall be appropriately marked to show that it contains Confidential Informationof the other party and shall contain all applicable copyright notices andproprietary legends, if any.

### (e)           Each party retains all worldwiderights, title and interest in and to its own Confidential Information subjectto any licenses granted in accordance herewith;

### (f)            Each party shall return any and alldocuments and other materials, regardless of media, evidencing or embodying theConfidential Information of the other party upon the written request of suchother party, subject to any licenses hereunder provided that a party may retainone copy of such material and documents in the possession of its law departmentor with its lawyers for the sole and only purpose of determining the party’sobligation with respect to the Confidential Information hereunder.

### (g)           The foregoing obligations withrespect to a particular item of Confidential Information shall survivetermination of this Agreement for any reason and until five (5) years after thedate such item of Confidential Information was first received by the otherparty; provided that this five (5) year limitation shall not apply to thesoftware, which shall remain Confidential Information so long as it fallswithin the definition thereof.

 

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**ARTICLE 9FORCE MAJEURE**

 

## 9.1           Notice of Force Majeure.  Upon giving notice to the other party, aparty affected by an event of Force Majeure shall be released without anyliability on its part from the performance of its obligations under thisAgreement, except for the obligation to pay any amounts due and owing hereunder,but only to the extent and only for the period that its performance of suchobligations is prevented by the event of Force Majeure.

## 9.2           Suspension of Performance.  During the period that the performance byone of the parties of its obligations under this Agreement has been suspendedby reason of an event of Force Majeure, the other party may likewise suspendthe performance of all or part of its obligations hereunder (except for theobligation to pay any amounts due and owing hereunder) to the extent that suchsuspension is commercially reasonable.

**ARTICLE 10MISCELLANEOUS**

## 10.1         Successors and Assigns.  This Agreement shall be binding upon andinure to the benefit of the parties hereto and the successors or assigns of theparties hereto; provided, that the rights and obligations of either partyherein may not be assigned except to any person who succeeds to substantiallyall of the assets and business of that party to which this Agreement relates.

## 10.2         Complete Agreement.  This Agreement and the Schedules andExhibits hereto and thereto, constitute the entire agreement between theparties hereto with respect to the subject matter hereof and supersede allprior agreements whether written or oral relating hereto.

## 10.3         Governing Law.  This Agreement shall be governed by andinterpreted in accordance with the laws of the State of Minnesota, includingall matters of construction, validity, performance and enforcement, withoutgiving effect to principles of conflict of laws.

## 10.4         Waiver, Discharge, Amendment, Etc.  The failure of any party hereto to enforceat any time any of the provisions of this Agreement shall not, absent anexpress written waiver signed by the party making such waiver specifying theprovision being waived, be construed to be a waiver of any such provision, norin any way to affect the validity of this Agreement or any part thereof or theright of the party thereafter to enforce each and every such provision.  No waiver of any breach of this Agreement shallbe held to be a waiver of any other or subsequent breach.  Any amendment to this Agreement shall be inwriting and signed by the parties hereto.

## 10.5         Notices.  All notices or other communications to aparty required or permitted hereunder shall be in writing and shall bedelivered personally or by facsimile (receipt confirmed electronically) to suchparty (or, in the case of an entity, to an executive officer of such party) orshall be sent by a reputable express delivery service or by certified mail,postage prepaid with return receipt requested, addressed as follows:

 

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1.             ifto SNT, to:

 

SNT, Inc.

Corporate Center

7000 CentralAvenue N.E.

Minneapolis,MN  55432

Attention:  General Counsel

FAX (763) 505-2350

 

with a copy to:

 

SNT, Inc.

826 Coal Creek Circle

Louisville, CO 80027

Attention: Business Development Officer

FAX (720) 890-3500

 

2.             if to VTAL, to:

 

Vital Images, Inc.

330 Fernbrook Lane North, Suite 200

Plymouth, MN 55447

Attention:  JayMiller

FAX (763) 852-4110

 

with a copy to:

 

Oppenheimer Wolff & Donnelly

Plaza VII, Suite 3300

45 South Seventh Street

Minneapolis, MN 55402 - 1609

Attention: Dennis P. Whelpley

FAX (612) 607-7797

 

## 10.6         Changes to Notice.  Any party may change the recipient and/ormailing address of Article 10.6 by notice to all other parties given in themanner herein prescribed.  All noticesshall be deemed given on the day when actually delivered as provided above (ifdelivered personally or by facsimile) or on the day shown on the return receipt(if delivered by mail or delivery service).

## 10.7         Expenses.  Except as expressly provided herein, VTALand SNT shall each pay their own expenses incident to this Agreement and thepreparation for, and consummation of, the transactions provided for herein.

## 10.8         Titles and Headings; Construction.  The titles and headings to the Articles andArticles herein are inserted for the convenience of reference only and are notintended to be a part of or to affect the meaning or interpretation of thisAgreement.  This Agreement shall beconstrued

 

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without regard to anypresumption or other rule requiring construction hereof against the partycausing this Agreement to be drafted.

 

## 10.9         Severability.  If any provision of this Agreement is heldinvalid, illegal or unenforceable, such provision shall be enforced to themaximum extent permissible and the remaining provisions shall nonetheless beenforceable according to their terms.

## 10.10       Relationship.  This Agreement does not make either partythe employee, agent or legal representative of the other for any purposewhatsoever.  Neither party is grantedany right or authority to assume or to create any obligation or responsibility,express or implied, on behalf of or in the name of the other party.  In fulfilling its obligations pursuant tothis Agreement, each party shall be acting as an independent contractor.

## 10.11       Benefit.  Nothing in this Agreement, expressed or implied, is intended toconfer on any person other than the parties hereto or their respectivesuccessors or assigns, any rights, remedies, obligations or liabilities underor by reason of this Agreement.

## 10.12       Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall be deemed as original and all of whichtogether shall constitute one instrument.

## 10.13       Execution of Further Documents.  Each party agrees to execute and deliverwithout further consideration any further applications, licenses, assignmentsor other documents, and to perform such other lawful acts as the other partymay reasonably require to fully secure and/or evidence the rights or interestsherein.

## 10.14       Dispute Resolution.  Any dispute arising out of or relating tothis Agreement, including any alleged breach or fraud in the inducement hereof,shall be resolved pursuant to binding arbitration under the commercialarbitration rules of the American Arbitration Association in accordance withAppendix B hereto.  The arbitrationshall take place in Minneapolis, Minnesota. The results of such arbitration proceedings shall be binding upon theparties hereto, and judgment may entered upon the arbitration award in anycourt having jurisdiction thereof. Notwithstanding the foregoing, either party may seek interim injunctiverelief from any court of competent jurisdiction.

## 10.15       Public Announcement.  In the event any party proposes to issue anypress release or public announcement concerning any provisions of thisAgreement or the transactions contemplated hereby, such party shall so advisethe other parties hereto, and the parties shall thereafter use their bestefforts to cause a mutually agreeable release or announcement to beissued.  Neither party will publiclydisclose or divulge any provisions of this Agreement or the transactions contemplatedhereby without the other party’s written consent, except as may be required byapplicable law or stock exchange regulation, and except for communications tosuch party’s employees or customers or investors or prospective investors(subject to appropriate confidentiality obligations).

## 10.16       Compliance with Laws.  The parties, and any permitted sublicenseesof the parties, will comply with all applicable international, national, state,regional and local laws and regulations, including all applicable import andexport control laws, in exercising their rights or performing their dutiesunder this Agreement.

 

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IN WITNESSWHEREOF, each of the parties has caused this Development and License Agreementto be executed in the manner appropriate to each, as of the date first abovewritten.

 
| SURGICAL NAVIGATION TECHNOLOGIES, INC. |                                        | VITAL IMAGES,  INC. |
|----------------------------------------|---------------------------------------------|---------------------|
|                                   |                                        |                |   |   |
| By:                                    |  /s/Andrew M  Weiss                    |                | By: | /s/Albert Emola |
| Its:                                   |  Vice  President & General Manager |                | Its: | President & CEO |
| Date:                                  |  11/26/01                              |                | Date: | 11/21/01 |

 

Attachments:

Appendix A — Project Plan Template

Appendix B — Alternative Dispute Resolution Rules

 

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APPENDIX A

 

PRODUCT PLAN UNDERDEVELOPMENT AND LICENSE AGREEMENT BETWEEN SNT, INC. AND VITAL IMAGES, INC.DATED NOVEMBER      , 2001

 

I.              DETAILEDDESCRIPTION OF PRODUCT

 

1.1           ProductFeatures/Specification.

 

1.2           Product Environment,e.g., IGS O2, Windows® software platform or                    .

 

1.3           License Grant

 

II.            DEVELOPMENT PHASES

 

III.           MILESTONES ANDTARGET DATES

 

IV.           AMOUNTS TO BE PAID

 

4.1           RoyaltyPayments.

 

4.2           OtherPayments and Expenses.

 

V.                                     REQUIRED TECHNICAL SUPPORT

 

VI.                                 REGULATORY REQUIREMENTS

 

VII.          MARKETING.

 

7.1           Trademarks

 

7.2           Exclusivity

 

VIII         TRAINING

 

IX            DOCUMENTATION.

 

X.            WARRANTY.

 

XI.           MAINTENANCE

 

XII.         MISCELLANEOUS

 

THE UNDERSIGNEDACKNOWLEDGES THE FOREGOING PRODUCT PLAN.

 
| SURGICAL NAVIGATION TECHNOLOGIES, INC. |   | VITAL IMAGES,  INC. |
|----------------------------------------|--------|---------------------|

 

A-1

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APPENDIXB

 

ALTERNATIVEDISPUTE RESOLUTION

 

Negotiations.  If any dispute arises between VTAL and SNTwith respect to the Development and License Agreement (the “Agreement”),including any alleged breach or fraud in the inducement thereof, either partymay, by written notice to the other party, have such dispute referred to theirrespective employees designated below or their successors for attemptedresolution by good faith negotiations within forty-five (45) days after suchwritten notice is received.  Such designatedemployees are as follows:

 

ForVTAL - the President of VTAL, or his or her designee; and

 

ForSNT — the President of SNT’s business unit to which this Agreement relates, orhis or her designee.

 

Any settlementreached by the parties under this Article 1 shall not be binding until reducedto writing and signed by the above-specified employees of SNT and VTAL.  When reduced to writing, such settlementagreement shall supersede all other agreements, written or oral, to the extentsuch agreements specifically pertain to the matters so settled.

 

If theabove-designated employees are unable to resolve such dispute within suchforty-five (45) day period, any party may invoke the provisions below.

 

Arbitration.  All claims, disputes, controversies, and othermatters in question arising out of or relating to the Agreements or to thealleged breach thereof shall be settled by negotiation between the parties asdescribed above or, if such negotiation is unsuccessful, by binding arbitrationin accordance with procedures set forth below.

 

Notice.  Notice of demand for binding arbitrationshall be given in writing to the other party pursuant to the Agreements.  In no event may a notice of demand of anykind be filed more than one (1) year after the date the claim, dispute,controversy, or other matter in question was first asserted in writing to theother party as set forth above, and if such demand is not timely filed, theclaim, dispute, controversy, or other matter in question referenced in thenotice of dispute given as set forth above shall be deemed released, waived,barred, and unenforceable for all time, and barred as if by statute oflimitations.

 

Binding Arbitration.  Upon filing of a notice of demand forbinding arbitration by either party, arbitration shall be commenced andconducted as follows:

 

Arbitrators.  All claims, disputes, controversies, andother matters (collectively “matters”) in question shall be referred to anddecided and settled by a panel of three arbitrators, one selected by each ofthe parties and the third by the two arbitrators so selected.  The third shall be a former judge of one ofthe state or U.S. courts of general jurisdiction or Courts of Appeals, or suchother classes of persons as the parties may agree.  Selection of the arbitrators to be selected by the parties shallbe made within ten (10) business days after the date of filing of a demand forarbitration, and the two 

 

AppendixB-1

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arbitratorsso appointed will appoint the third within ten (10) business days followingtheir appointment.

 

Costof Arbitration.  The cost ofarbitration proceedings, including without limitation the arbitrators’compensation and expenses, hearing room charges, court reporter transcriptcharges etc., shall be borne by the parties equally or otherwise as thearbitrators may determine.  Thearbitrators may award the prevailing party its reasonable attorneys’ fees andcosts incurred in connection with the arbitration.  The arbitrators are specifically instructed to award attorneys’fees for instances of abuse of the discovery process.

 

Locationof Proceedings.  Thearbitration proceedings shall be held at a location selected by the parties, orselected by the arbitrators if the parties are unable to agree.

 

Pre-hearingDiscovery.  The partiesshall have the right to conduct and enforce pre-hearing discovery in accordancewith the then current United States Federal Rules of Civil Procedure, subjectto these limitations:

 

Each party may depose the other party’s expertwitnesses who will be called to testify at the hearing, plus two fact witnesseswithout regard to whether they will be called to testify (each party will beentitled to a total of not more than 24 hours of depositions of the otherparty’s witnesses); and

 

Document discovery and other discovery shall be underthe control of and enforceable by the arbitrators.

 

Discovery disputes shall be decided by thearbitrators.  The arbitrators areempowered:

 

toissue subpoenas to compel pre-hearing document or deposition discovery;

 

toenforce the discovery rights and obligations of the parties; and

 

to otherwise to control the scheduling and conduct ofthe proceedings.

 

Notwithstanding any contrary foregoing provisions, thearbitrators shall have the power and authority to, and to the fullest extentpracticable shall, abbreviate arbitration discovery in a manner which is fairto all parties in order to expedite the conclusion of each alternative disputeresolution proceeding.

 

Pre-hearingConference.  Within fifteen(15) days after selection of the third arbitrator or as soon thereafter as ismutually convenient to the arbitrators, the arbitrators shall hold apre-hearing conference to establish schedules for completion of discovery, forexchange of exhibit and witness lists, for arbitration briefs, for the hearing,and to decide procedural matters and all other questions that may be presented.

 

HearingProcedures.  The hearingshall be conducted to preserve its privacy and to allow reasonable procedural dueprocess.  Rules of evidence need not bestrictly followed, and the hearing shall be streamlined as follows:

 

Appendix B-2

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Documentsshall be self-authenticating, subject to valid objection by the opposing party;

 

Expert reports, witness biographies, depositions, andaffidavits may be utilized, subject to the opponent’s right of a livecross-examination of the witness in person;

 

Charts, graphs, and summaries shall be utilized topresent voluminous data, provided (i) that the underlying data was madeavailable to the opposing party thirty (30) days prior to the hearing, and (ii)that the preparer of each chart, graph, or summary is available for explanationand live cross-examination in person;

 

The hearing should be held on consecutive businessdays without interruption to the maximum extent practicable; and

 

The arbitrators shall establish all other proceduralrules for the conduct of the arbitration in accordance with the rules ofarbitration of the Center for Public Resources.

 

GoverningLaw.  This arbitration provisionshall be governed by, and all rights and obligations specifically enforceableunder and pursuant to, the Federal Arbitration Act (9 U.S.C. § 1, etseq.).

 

Consolidation.  No arbitration shall include, byconsolidation, joinder, or in any other manner, any additional person not aparty to this Agreement (other than Affiliates of any such party, whichAffiliates may be included in the arbitration), except by written consent ofboth parties containing a specific reference to this Agreement.

 

Award.  The arbitrators are empowered to render anaward of general compensatory damages and equitable relief (including, withoutlimitation, injunctive relief), but are not empowered to award exemplary, specialor punitive damages.  The award renderedby the arbitrators (1) shall be final; (2) shall not constitute a basis forcollateral estoppel as to any issue; and (3) shall not be subject to vacationor modification.

 

Confidentiality.  The parties hereto will maintain thesubstance of any proceedings hereunder in confidence and the arbitrators, priorto any proceedings hereunder, will sign an agreement whereby the arbitratorsagree to keep the substance of any proceedings hereunder in confidence.

 

Language.  All arbitration proceedings hereunder shallbe conducted in the English language and all documents submitted in connectionwith the arbitration proceedings hereunder shall be in English.

 

AppendixB-3

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