-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QHbe7ofysXfrUuNiIDWIJoSykMFuhpnmu7Afs76SNUpPjm6DWtiTHZJpnRqFr9+v rYyww20juoY+Cuf4gM4GkQ== 0000912057-97-018899.txt : 19970529 0000912057-97-018899.hdr.sgml : 19970529 ACCESSION NUMBER: 0000912057-97-018899 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19961231 FILED AS OF DATE: 19970528 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL SURGICAL INNOVATIONS INC CENTRAL INDEX KEY: 0000890763 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 973170244 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-28448 FILM NUMBER: 97615398 BUSINESS ADDRESS: STREET 1: 3172A PORTER DR CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 4158129740 MAIL ADDRESS: STREET 1: 3172A PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 10-Q/A 1 10-Q/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q/A [X] AMENDMENT TO QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1996. Commission file number: 0-28448 GENERAL SURGICAL INNOVATIONS, INC. (Exact name of Registrant as specified in its charter) CALIFORNIA 97-3170244 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 10460 BUBB ROAD, CUPERTINO, CA 95014 (Address of principal executive offices) Registrant's telephone number, including area code: (408) 863-2500 Securities registered pursuant to Section 12(b) of the Act: None Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.001 par value Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES X NO --- --- There were approximately 13,199,353 shares of Registrant's Common Stock issued and outstanding as of December 31, 1996. ------------------------------------- The undersigned Registrant hereby amends the following exhibit to the Quarterly Report on Form 10-Q for the quarter ended December 31, 1996, as set forth below: At the Commission's request, the Registration is refiling Exhibit 10.21 in accordance with the Commission's granting of an order for confidential treatment of certain portions of Exhibit 10.21. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) EXHIBITS Exhibit Description ------- ----------- 10.20 (1)(2) OEM Supply Agreement (Expanded Field) dated December 20, 1996, between Ethicon Endo-Surgery, Inc. and the Company ("Expanded EES Agreement"). 10.21(2) Modification and Termination Agreement and Mutual Release dated November 12, 1996, between United States Surgical Corporation and the Company. 10.22(3) Real Estate Lease between Berg & Berg Developers and the Company. 11.1 (3) Statement of Computation of Earnings (Net Loss) Per Share 27.1 (3) Financial Data Schedule (1) This exhibit supercedes Exhibit 10.19. (2) Confidential treatment has been granted with regard to certain portions of this exhibit by the Commission on April 17, 1997. (3) Incorporated by reference to identically numbered exhibits filed in response to Item 6(a), "Exhibits," of the Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 1996, filed with the Commission on February 13, 1997. (b) REPORTS ON FORM 8-K The Company filed no reports on Form 8-K during the quarter ended December 31, 1996. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized. GENERAL SURGICAL INNOVATIONS, INC. By:/s/ STEPHEN J. BONELLI ------------------------ Stephen J. Bonelli Vice President, Finance and Chief Financial Officer Date: May 28, 1997 3 EX-10.21 2 EXHIBIT 10.21 MODIFICATION AND TERMINATION AGREEMENT AND MUTUAL RELEASE This Agreement is made as of November 12, 1996 by and among General Surgical Innovations, Inc., a California corporation ("GSI"), and United States Surgical Corporation, a Delaware corporation ("USSC"). WHEREAS, GSI and USSC have entered into a certain Distributorship Agreement dated as of March 9, 1994, as amended (the "Distributorship Agreement"); and WHEREAS, GSI and USSC wish to modify and terminate the Distributorship Agreement and agree to a mutual release as set forth below. The parties agree that as of the date of this Agreement set forth above (the "Effective Date"): 1.1 MODIFICATION AND TERMINATION. Subject to the provisions set forth below, GSI and USSC hereby agree to terminate the Distributorship Agreement. Upon execution of this Agreement, USSC shall not be obligated to purchase, and GSI shall not be obligated to supply, any products, including, but not limited to, the products set forth on EXHIBIT A hereto. The parties further agree to amend Section 11.3 of the Distributorship Agreement such that USSC shall have the right (to the extent permitted under applicable laws and regulations) to sell its existing inventory of products purchased from GSI until December 31, 1997. 1.2 This Agreement will be effective on the date it is executed by both parties (the "Termination Date"). Within [********] days after the Termination Date, USSC shall pay in full the amount set forth in the EXHIBIT B and thereafter shall no longer owe any amounts to GSI. USSC shall have no right to [**********] under the Distributorship Agreement after the Termination Date. 2.0 ACKNOWLEDGMENT OF INTELLECTUAL PROPERTY RIGHTS . Each party acknowledges that it has no rights, claims or interests in the other party's intellectual property rights except as set forth in the Distributorship Agreement. 3.0 MUTUAL RELEASE. Except for warranty and indemnity obligations of the parties (as set forth in Articles 4.4 and 7 of the Distributorship Agreement, respectively), GSI and USSC, on behalf of itself, each of its past and present affiliates, representatives, successors, assigns and transferees does hereby release, discharge and acquit forever such other party and such party's affiliates, successors, assigns and transferees from any and all demands, claims or other liabilities (or potential demands, claims or liabilities) of every kind and character whatsoever, arising in connection with any rights, obligations, duties or interests arising under the Distributorship Agreement occurring on or prior to the date of this Agreement, whether known or unknown, suspected or unsuspected and each expressly waives the benefits of Section 1542 of the California Civil Code which provides that: [***] CONFIDENTIAL TREATMENT REQUESTED "A GENERAL RELEASE DOES NOT EXTEND THE RELEASE TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Each of GSI and USSC understands and acknowledges the significance and consequences of such specific waiver of Section 1542, and hereby assumes full responsibilities for any injuries, damages or losses that each may incur as a result of such waiver. 4.0 SURVIVAL OF CERTAIN TERMS. USSC and GSI acknowledge and agree that the following provisions survive the termination of the Distributorship Agreement: Sections 2.1(e), 3.7, 3.8, 4.4, the last two sentences of 5.2, 5.3, 5.4, 5.5, 6.1, 6.4, 6.5, 6.6, 6.7, 6.8, 6.12, 7.1, 8.2, 8.3, 10.1, 10.2, 10.3, 11.3 (to the extent the six (6) month period has been extended to December 31, 1997 in Section 1.1 above), 13.1, 13.2, 13.3, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8. 5.0 CLARIFICATION OF ARTICLE 11.2. USSC and GSI acknowledge and agree that the Distribution Agreement is being terminated by mutual agreement and not pursuant to Sections 11.2(e) or 11.2(f) and therefore the parties agree that the restriction on USSC contained in the last unnumbered paragraph of Article 11.2 does not apply. IN WITNESS WHEREOF, the undersigned GSI and USSC have duly executed this Agreement as of the date first set forth above. GENERAL SURGICAL INNOVATIONS, INC. UNITED STATES SURGICAL CORPORATION By:_______________________________ By:___________________________ Its:______________________________ Its:__________________________ [***] CONFIDENTIAL TREATMENT REQUESTED -2- EXHIBIT A (CANCELED USSC FINANCIAL OBLIGATIONS) QUANTITY $ -------- - October 1996 Spacemaker II [*****] [*******] November 1996 Spacemaker II [*****] [*******] December 1996 Spacemaker II [*****] [*******] January 1997 Spacemaker II [*****] [*******] February 1997 Spacemaker II [*****] [*******] March 1997 Spacemaker II [*****] [*******] Unfulfilled Obligations prior to October 1, 1996 QUANTITY $ -------- - Spacemaket World 1500 [*****] [*******] Unacknowledged September 1996 Shipments: QUANTITY $ -------- - September 27, 1996 Spacemaker II 2,114 232,540 September 27, 1996 Spacemaker World 900 36 23,328 September 30, 1996 Spacemaker I 900 500 61,250 [***] CONFIDENTIAL TREATMENT REQUESTED -3- EXHIBIT B (USSC FINANCIAL OBLIGATIONS) [*************************] INVOICE NO. $ ----------- - [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] [****] [**********] ---------- [**********] [***] CONFIDENTIAL TREATMENT REQUESTED -4- -----END PRIVACY-ENHANCED MESSAGE-----