EXHIBIT 10.40.1
AMENDMENT TO SUPPLY AGREEMENT
This Amendment to Supply Agreement (this "Amendment") is entered into as
of January 17th, 2002 by and between IMPRA, Inc., a subsidiary of C.R. Bard,
Inc., 1625 W. 3rd Street, Tempe, AZ 85281 ("IMPRA") and Endologix, Inc. a
Delaware corporation, with offices at 13700 Alton Parkway, Suite 160, Irvine,
California 92618 ("Endologix").
R E C I T A L S
WHEREAS, IMPRA and Endologix are parties to that certain Supply
Agreement dated February 12, 1999 (as amended and/or supplemented to date, the
"Supply Agreement"); and
WHEREAS, IMPRA and Endologix desire to amend the Supply Agreement on the
terms and conditions set forth herein.
AGREEMENT
In consideration of the foregoing premises, the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. For purposes of this Amendment, unless otherwise set
forth herein, capitalized terms established in the Supply Agreement shall be
applied herein as defined therein.
2. Amendments.
a. Section (B) of Article IV of the Supply Agreement is hereby
amended to read in its entirety as follows:
"Price and Payment. The price paid and terms of payment
for any Components purchased from time to time by Endologix from
IMPRA for use in Implanted Devices shall be as set forth on
Exhibit B attached to this Amendment. Commencing on the date that
all the Conditions (as hereinbelow defined) are met, the price
paid and terms of payment for Components purchased for Implanted
Devices from time to time by Endologix from IMPRA shall be as set
forth on Exhibit C attached to this Amendment. The "Conditions"
are as follows: (1) the issuance of a patent to Dr. David
Goldfarb for an artificial vascular prosthesis arising from the
recently concluded patent interference in Dr. Goldfarb's U.S.
Patent Application Serial No. 05/517,415 (the "Goldfarb Patent
Issuance") by the United States Patent and Trademark Office, and
(2) Endologix receives FDA approval to commercially distribute
the Implanted Devices in the United States. The parties hereby
agree that the price paid for the Components shall be increased
each year commencing January 1, 2003, to take into account any
price increases
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which are tied to the Consumer Price Index published by the
United States Department of Labor, Bureau of Labor Statistics."
The minimum purchases of the Components by Endologix for the
calendar year 2001 shall be 2,500 units. The minimum purchases of
Components by Endologix for the calendar year 2002 shall be 2,900
units. The minimum purchases of Components by Endologix for the
calendar year 2003 shall be the greater of (i) actual units
purchased in calendar year 2002 or (ii) the minimum purchase
requirements for calendar year 2002, plus 10% (in either case).
Minimum purchases of Components by Endologix for each calendar
year thereafter shall be equal to not less than 115% of the
previous year's minimum or actual purchases, whichever is higher.
b. Article X of the Supply Agreement is hereby amended to read in
its entirety as follows:
"This Agreement will come into effect on the Effective
Date and will continue until December 31, 2007. Thereafter, this
Agreement shall renew automatically, on a year by year basis, for
additional one year periods without notice, unless one party
provides notice to the other party of its intention not to renew
within thirty (30) days from the expiration of the applicable
renewal period. Following termination, the provisions of this
Agreement will continue to apply to Components sold to Endologix
during the term of this Agreement."
c. Section (A) of the Article XII of the Supply Agreement is
hereby amended to read in its entirety as follows:
"Subject to the immediately succeeding sentence, this
Agreement shall be binding upon and inure to the benefit of the
parties named herein and their respective successors and
permitted assigns. Endologix (and its successors or assignees)
may assign this Agreement and its rights under this Agreement to
purchase and manufacture Components at the prices specified
herein (i) to an affiliate, (ii) in connection with the sale,
transfer, license, or other disposition of all or substantially
all of its assets, (iii) in connection with the sale of capital
stock constituting more than 50% of its total voting power,
and/or (iv) in connection with a merger, recapitalization or
reorganization. Each of Endologix and IMPRA agree that following
the occurrence of any of the events described in items (i)
through (iv) above, Endologix (and any successors or assignees)
will be entitled to purchase from IMPRA only those Components
being purchased from IMPRA prior to the occurrence of such event
in accordance with the then-existing Specifications."
d. A new Section (F) is hereby added to Article XII of the Supply
Agreement to read in its entirety as follows:
"Endologix and IMPRA each agree to use commercially
reasonable efforts to agree upon development costs for Components
to be used in new Implanted Devices."
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e. Exhibit A to the Supply Agreement is hereby deleted and
replaced with the Exhibit A attached as Exhibit A to this Amendment.
3. Miscellaneous
a. Entire Agreement. The Supply Agreement, as amended by this
Amendment, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions whether oral or written of the parties.
b. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original instrument and all of
which together will constitute one and the same instrument. The exchange of
copies of this Amendment and of signature pages by facsimile transmission shall
constitute effective execution and delivery of this Amendment as to the parties
and may be used in lieu of the original for all purposes. Signatures of parties
transmitted by facsimile shall be deemed to be their original signatures for any
purpose whatsoever.
c. Effect of Amendment. Except as provided in this Amendment, the
Supply Agreement shall remain unchanged and shall continue in full force and
effect. In the event of a conflict between this Amendment and the Supply
Agreement, the terms of this Amendment shall govern and control.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and delivered by their respective duly authorized officers as of the date first
written above.
IMPRA, Inc. Endologix, Inc.
By: /s/ John McDermott . By: /s/ Frank Brown .
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President Chairman and Chief Executive Officer
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EXHIBIT A
COMPONENTS
The Components include the sizes of the grafts contained in "Implanted
Devices" used in the treatment of aortic and aorto-iliac aneurysms which have
been supplied to Endologix by IMPRA through the date of the Amendment to Supply
Agreement (the "Amendment"), and shall also include any other size grafts
supplied after the date of the Amendment as agreed to by the parties. The
Specifications shall be mutually agreed to in writing by both parties.
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EXHIBIT B
PRICE AND PAYMENT TERMS
-------------------------------------------------- -------------
Size of Graft Product Code Price
-------------------------------------------------- -------------
12mmx14cm M12061014 [**]
-------------------------------------------------- -------------
16mmx14cm M16061014 [**]
-------------------------------------------------- -------------
20mmx14cm M20061014 [**]
-------------------------------------------------- -------------
25mmx13cm M25061013 [**]
-------------------------------------------------- -------------
28mmx13cm M28061013 [**]
-------------------------------------------------- -------------
34mmx13cm M34061013 [**]
-------------------------------------------------- -------------
34mm tapered M34061513 [**]
-------------------------------------------------- -------------
42mmx13cm M42061013 [**]
-------------------------------------------------- -------------
Payment terms are thirty (30) days from shipment to Endologix.
** Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
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EXHIBIT C
PRICE AND PAYMENT TERMS FOR PURCHASES
AFTER THE CONDITIONS IN SECTION (B) OF ARTICLE IV ARE MET
-------------------------------------------------- -------------
Size of Graft Product Code Price
-------------------------------------------------- -------------
12mmx14cm M12061014 [**]
-------------------------------------------------- -------------
16mmx14cm M16061014 [**]
-------------------------------------------------- -------------
20mmx14cm M20061014 [**]
-------------------------------------------------- -------------
25mmx13cm M25061013 [**]
-------------------------------------------------- -------------
28mmx13cm M28061013 [**]
-------------------------------------------------- -------------
34mmx13cm M34061013 [**]
-------------------------------------------------- -------------
34mm tapered M34061513 [**]
-------------------------------------------------- -------------
42mmx13cm M42061013 [**]
-------------------------------------------------- -------------
Payment terms are thirty (30) days from shipment to Endologix.
** Confidential treatment is being sought with respect to certain portions of
this agreement. Such portions have been omitted from this filing and have
been filed separately with the Securities and Exchange Commission.
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