Exhibit
10.17


 


CONFIDENTIAL TREATMENT REQUESTED


 


INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED AND NOTED WITH “****”.

AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN PROVIDED TO THE SECURITIES
AND EXCHANGE

COMMISSION.


 


FIRST AMENDMENT TO
DISTRIBUTION AGREEMENT


 


This First Amendment to Distribution Agreement (this
“Amendment”) is made by and between Bristol-Myers Squibb Medical
Imaging, Inc., formerly known as Bristol-Myers Squibb Pharma Company
(“BMS”) and Medi-Physics, Inc., doing business as G.E. Healthcare (“G.E.
Healthcare”) (referred to individually as “Party” and collectively as
“Parties”) and shall be effective as of January 1, 2005.


 


WITNESSETH:


 


WHEREAS, BMS and G.E. Healthcare are Parties to that
certain Distribution Agreement dated October 31, 2001 (the “Agreement”);
and


 


WHEREAS, the Parties desire to amend the Agreement
all in accordance with, and subject to the terms and conditions set forth
herein;


 


NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, the Parties agree as
follows:


 


1.             Defined
Terms. Capitalized terms used, but not defined, herein
shall have the meanings ascribed to them in the Agreement. All references to
“NA” in the Agreement shall be read to mean “G.E. Healthcare.”


 


2.             Amendments. Subject to the
terms and conditions of this Amendment, the Agreement is amended as follows:


 


(a)           Article 1.
Article 1, Appointment as Distributor, is hereby deleted in its
entirety with the following substituted therefor:


 


ARTICLE 1.
Appointment as Distributor


 


BMS hereby
grants to G.E. Healthcare, under the terms and condition of this Agreement, the
non-exclusive right to market, distribute and sell the terminally sterilized
Technetium (Tc-99m) generators (brand name “TechneLite®”), Gallium
Citrate Ga-67 Injection and Xe-133 gas products and accessory products
hereinafter identified on Exhibit A attached hereto (“Products”) in
the ****, to include the ****. In addition BMS agrees to supply to G.E. Healthcare
Radiopharmacies in ****, solely
for unit dose preparation in ****,
the TechneLite®, Ga-67 and Xe-133 Products
listed on Exhibit A. G.E. Healthcare Radiopharmacies in **** are defined as those free-standing radiopharmacies
in which G.E. Healthcare has at least a **** percent (****%) ownership interest. Hereinafter, the term “Territory” shall refer to
both **** and **** so described above.


 


1

















 


(b)        Section 2.6. Sentence 5 of
Section 2.6 is hereby amended to change the day of calibration for Gallium
Citrate Ga-67 Injection products to **** as follows:


 


...Gallium Citrate Ga-67
Injection products shall be made available ****, calibrated for the following ****.
....


 


(c)        Section2.7.
Section 2.7 is deleted in its entirety with the following substituted
therefor:


 


2.7       The
purchase prices to be charged G.E. Healthcare for calendar year 2005 are shown
in Exhibit C1 and the mechanism to calculate future pricing for each
Product is set forth in the Notes in Exhibit C1 . Included in the prices
of the Products are:


 


(a)    **** (****) external
generator shields per initial TechneLite® standing
order (A25);


(b)    **** (****) elution
shields per initial TechneLite® standing order (A14);


(c)    **** (****) packs
of any combination of saline and evacs (A15, A17 or A3) per each received
TechneLite® standing order.


(d)    BMS
assures that the prices charged to G.E. Healthcare for each Product shall
recognize G.E. Healthcare‘s proportion of total BMS volume for each Product.


 


(d)        Section 2.8.
Section 2.8 is deleted in its entirety with the following substituted
therefor:


 


2.8       Delivery
of Products to G.E. Healthcare hereunder shall be made by BMS via Federal
Express, Priority Overnight Service from BMS’s manufacturing facility located
at 331 Treble Cove Road, North Billerica, Massachusetts. If so requested by
G.E. Healthcare, BMS will arrange for alternative shipment of Products in
accordance with G.E. Healthcare‘s shipping instructions contained in a Firm
Order. This includes shipment of **** calibrated TechneLite® for
delivery “prior to first run ****”. Notwithstanding any other provision in this
Agreement, BMS shall incur no liability of any nature whatsoever to G.E.
Healthcare, its subdistributors, dealers, agents or affiliates, with respect to
BMS’s performance of shipping duties on G.E. Healthcare‘s behalf other than
because of BMS’s gross negligence.


 


(e)                    Section 2.10.
Section 2.10 is hereby added as follows:


 


2.10     (a)          Within **** (****)
days after each Quarter (as defined below) during the period from ****, through the ****, BMS shall credit to G.E. Healthcare a rebate
(determined in accordance with Exhibit C2 and as more fully detailed
therein) on the TechneLite® shipped to it during such Quarter based on the
aggregate volume of TechneLite® (measured by the number of curies of molybdenum
(Mo 99) contained in such TechneLite® at ****


 


2

















 


Eastern Time on the day of ****) and the percentage growth in the TechneLite® Volume
Amount (as defined below) for such Quarter relative to a baseline amount as set
forth in Exhibit C2. As used herein, the “TechneLite® Volume
Amount” means the total volume of TechneLite® measured in curies shipped to
G.E. Healthcare by BMS in a Quarter. “Quarter” shall mean each of the three (3) month
periods ending on March 31, June 30, September 30 and
December 31 of any year; provided that the last quarter shall end on the
date of termination of this Agreement.


 


(b)       The
rebates provided for in this Section 2.10 shall be provided to G.E. Healthcare
in the form of credits against future purchases of any products sold to G.E.
Healthcare by BMS, and BMS shall have no obligation to settle any such rebate
in cash, provided however, that if G.E. Healthcare ceases to exist or is
otherwise acquired and there are no outstanding invoices payable by G.E.
Healthcare to BMS, then BMS shall be obligated to settle any rebate due after
such time in cash.


 


(f)         Section 9.1.
Section 9.1 is hereby deleted in its entirety with the following
substituted therefor:


 


9.1       Unless
earlier terminated as provided in this Agreement, the initial term of this
Agreement shall commence as of October 31, 2001 (the “Effective Date”) and
conclude on December 31, 2014. Thereafter, this Agreement will
automatically renew for three (3) year periods. Notwithstanding the
foregoing, this Agreement may be terminated at any time by either Party on
three (3) years’ written notice relating to TechneLite® and six
(6) months’ written notice relating to the other Products.


 


(g)        Section 12.2. The name and
address for BMS in Section 12.2 is amended to read as follows: 


 


Bristol-Myers Squibb
Medical Imaging, Inc.


Attn: Director, Key
Accounts


331 Treble Cove Road


North Billerica, MA 01862


 


Copy to: Legal Department
(at the same address)


 


(h)         Section 12.8.
Section 12.8 is hereby added as follows:


 


12.8     The
Parties agree to exchange inventory bar code specifications, formatting and
encryption information related to such inventory bar code specifications. Each
Party will be responsible for implementing this information in its own software
systems and will use best efforts to inform the other promptly when changes
and/or additions are expected or problems are discovered with the bar codes. In
addition, each Party will be responsible for having a manual


 


3

















 


alternative in their
systems for use if the bar codes fail for any reason. Notwithstanding any
provision to the contrary, neither Party shall be liable to the other as a
result of or in connection with any non-working bar codes.


 


The
agreement to exchange inventory bar code specifications, formatting and
encryption information related to such inventory bar code specifications is
limited to bar code format information and does not include any source code for
either Party’s software. Neither Party may distribute the bar code format
information to another Party without written permission from the owner.
Ownership for the bar code format remains with the originating company.


 


(i)       Section 12.9.
Section 12.9 is hereby added as follows:


 


12.9     Each Party
represents and warrants that throughout the term of this Agreement said Party
shall be and shall remain in compliance with all applicable federal, state and
local laws, including, but not limited to, if applicable, the Federal
Anti-kickback Statute’s discount safe harbor provisions at 42 U.S.C. §
1320a-7b(b) and 42 C.F.R. § 1001.952(h).


 


(j)       Exhibit A. Exhibit A
is hereby deleted in its entirety with the following substituted therefor:


 


Exhibit A


 


Products


 


	
  TechneLite®

  	
   

  
	
  ****

  	
  **** mCi Unit, Calibrated @ noon
  Eastern Time, ****  

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit        “

  
	
  ****

  	
  **** mCi Unit      “

  
	
  ****

  	
  **** mCi Unit      “

  
	
  ****

  	
  **** mCi Unit      “

  
	
  ****

  	
  **** mCi Unit      “

  
	
   

  	
   

  
	
  MHDLG

  	
  TechneLite® handling fee

  
	
   

  	
   

  
	
  A****

  	
  Set of ****  ****Ml
  saline eluent vials

  
	
  A****

  	
  Set of ****  ****Ml
  saline eluent vials

  
	
  A****

  	
  Set of ****  ****Ml
  evacuated collection vials

  
	
  A****

  	
  Lead elution shield

  



 


4

















 


	
  A****

  	
  MolyCoddle® radiation reducer

  
	
  A****

  	
  Aluminum Ion indicator kit

  
	
   

  	
   

  
	
  Xenon-133

  	
   

  
	
  X****

  	
  Xe-133 **** mCi, **** vial tube, caibrated @ noon Eastern Time, Wednesday ****

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
   

  	
   

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
  X****

  	
  Xe-133 **** mCi, **** vial
  tube                         ”

  
	
   

  	
   

  
	
  XGUN

  	
  Xenon Gun

  
	
  XHDLG

  	
  Xenon handling fee

  
	
   

  	
   

  
	
  Gallium-67

  	
   

  
	
  Ga****-H

  	
  **** mCi vial, calibrated @ noon
  Eastern Time, Thursday ****

  
	
  Ga****-H

  	
  ****
  mCi
  vial                           ”

  
	
  Ga****-H

  	
  ****
  mCi
  vial                         ”

  
	
  Ga****-H

  	
  **** mCi vial                         ”

  
	
   

  	
   

  
	
  GHDLG

  	
  Gallium handling fee

  



 


Notes


 


·      BMS reserves the right to add or
delete specific items from its total product portfolio with **** days’ prior written notice.


·      ****=****, ****=
****


·      ****=****, ****=****, ****=****, ****=****, ****=****


 


(k)       Exhibit Cl. Exhibits C1 is
deleted in its entirety and substituted with the following:


 


Exhibit C1


 


Pricing **** through ****


 


	
  TechneLite®

  	
   

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  



 


5

















 


	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
  ****

  	
  $****

  
	
   

  	
   

  
	
  MHDLG

  	
  See Notes

  
	
   

  	
   

  
	
  A****

  	
  $****

  
	
  A****

  	
  $****

  
	
  A****

  	
  $****

  
	
  A****

  	
  $****

  
	
  A****

  	
  $****

  
	
  A****

  	
  $****

  
	
   

  	
   

  
	
  Xenon-133

  	
   

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
   

  	
   

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
  X****

  	
  $****

  
	
   

  	
   

  
	
  XGUN

  	
  $****

  
	
  XHDLG

  	
  See Notes

  
	
   

  	
   

  
	
  Gallium-67

  	
   

  
	
  Ga****-H

  	
  $****

  
	
  Ga****-H

  	
  $****

  
	
  Ga****-H

  	
  $****

  
	
  Ga****-H

  	
  $****

  
	
   

  	
   

  
	
  GHDLG

  	
  See notes

  



 


6

















 


Notes


 


	
  ·      Handling fee schedule per order

  	
   

  
	
  ·   Federal Express door to door

  	
  $****

  
	
  ·   Ground carrier
  door to door

  	
  $****

  
	
  ·   Dual leg, i.e.
  Airnet and Ground carrier

  	
  $****

  



 


·      When necessary to substitute
requested items due to inventory shortfall, BMS will adjust prices for
substituted items to reflect requested items total cost.


 


·      Annual
Price Adjustment for each item will be expressed as a percentage and calculated
as follows:


 


·      Cost of
materials plus ****% of the ****
change
in the **** (“****”), ****.
The **** can be found at ****.


·      Pricing
for **** will be communicated to G.E.
Healthcare on or about **** of
the previous ****.


·      Pricing
will be in effect from **** through
**** of the same ****.


 


(l) Exhibit C2. Exhibits C2
is deleted in its entirety and substituted with the following:


 


Exhibit C2


 


TechneLite® Growth Rebate


 


During the period **** through the ****, the rebates creditable or payable pursuant to
Section 2.10 for the TechneLite® 
shipped in any Quarter shall consist of a Growth Rebate, which shall be
determined based on the excess of the TechneLite® Volume Amount (as defined in
Section 2.10) for such Quarter over the Quarterly Baseline Target once a
certain percentage of such Quarterly Baseline Target is achieved, as provided
below.


 


If the TechneLite® Volume
Amount in the applicable Quarter meets or exceeds ****% of the Quarterly Baseline Target, a Tier 1 Growth
Rebate shall be paid on the quantity of curies of the TechneLite® Volume Amount
for such Quarter that exceeds the Quarterly Baseline Target. If the TechneLite®
Volume Amount in the applicable Quarter meets or exceeds ****% of the Quarterly Baseline Target, a Tier 2 Growth
Rebate shall be paid on the quantity of curies of the TechneLite® Volume Amount
for such Quarter that exceeds the Quarterly Baseline Target.


 


7

















 


The initial Quarterly
Baseline Target shall be ****
Ci(the “Quarterly Baseline Target”) and shall remain in effect until ****. For subsequent years, the Quarterly Baseline Target
will be the quantity of TechneLite® measured in curies purchased in the third
Quarter of the preceding year.


 


During the period **** through ****, the Growth Rebate shall applied as follows:


 


	
   

  	
   

  	
  Quantity of Curies

  	
   

  	
  Growth Rebate Dollar

  Amount Per Ci

  	
   

  
	
  Tier 1 Growth Rebate

  	
   

  	
  **** Ci to **** Ci

  	
   

  	
  $

  	
  ****

  	
   

  
	
  Tier 2 Growth Rebate

  	
   

  	
  **** Ci or more

  	
   

  	
  $

  	
  ****

  	
   

  



 


For subsequent years, the
Growth Rebate dollar amount per curie for Tier 1 Growth Rebates and Tier 2
Growth Rebates will be adjusted by the percentage increase calculated under
Annual Price Adjustment in Exhibit C1.


 


For example, if the
TechneLite®. Volume Amount for the applicable Quarter is equal to **** Ci, which during the period ****-through ****, represents at least ****%
growth over the Quarterly Baseline Target of **** Ci, then a Tier 1 Growth Rebate of $**** per curie shall be creditable or payable pursuant to
Section 2.10 on the difference in curies between the total quantity of
curies of TechneLite® shipped in the Quarter and the Quarterly Baseline Target.
The Growth Rebate would be: [(****
– ****) x ****] = $****.


 


Similarly, if the
TechneLite® Volume Amount for the applicable Quarter is equal to **** Ci, which, during the period **** through ****, represents at least ****%
growth over the Quarterly Baseline Target of **** Ci, then a Tier 2 Growth Rebate of $**** per curie shall be creditable or payable pursuant to
Section 2.10 on the difference in curies between the total quantity of
curies of TechneLite® shipped in the Quarter and the Quarterly Baseline Target.
The Growth Rebate would be: [(****
— ****) x ****] = $****.


 


(m)                Exhibit F.
Exhibit F is hereby deleted in its entirety.


 


3.                Full Force and Effect. Except as expressly
amended by this Amendment, the terms and conditions of the Agreement shall
remain in full force and effect. In the event of a conflict between the terms
of the Agreement and this Amendment, this Amendment shall control.


 


4.                Counterparts. This Amendment
may be executed in separate counterparts, each of which when so executed, shall
be deemed and original and all said counterparts when taken together shall be
deemed to constituted but one and the same instrument.


 


8

















 


5.                Governing Law. This Amendment
shall be governed by and construed in accordance with the internal laws of the
State of Delaware, excluding the conflict of law provisions thereof.


 


6.                Severability. Wherever possible,
each provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Amendment.


 


IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the date set forth above.


 


 


	
   

  	
  MEDI-PHYSICS, INC. D/B/A
  G.E. HEALTHCARE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Date:

  	
  3-5-05

  
	
   

  	
   

  
	
   

  	
  BRISTOL-MYERS SQUIBB MEDICAL IMAGING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
  Date:

  	
  3-16-05

  



 


9