The confidential portions of this exhibit, which have been removed and
replaced with an asterisk, have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 promulgated under the Securities Act of 1933 and Rule
24b-2 under the Securities Exchange Act of 1934.
SUPPLY AGREEMENT
Shield Assemblies
This Supply Agreement (this "Agreement") is made as of the 2nd day of
August, 2004, by and between Wilson Greatbatch Technologies, Inc., a corporation
incorporated under the laws of the state of Delaware and having a principal
place of business at 9645 Wehrle Drive, Clarence New York 14031 (as defined
below, "WGT"), and Medtronic Puerto Rico Operations Co., a corporation
incorporated under the laws of the Cayman Islands and having its place of
business at Road 31, Km. 24, HM 4 Ceiba Norte Industrial Park Juncos, PR 00777
(as defined below, "Medtronic").
RECITALS
A. WGT has the capability and desire to manufacture for and supply to
Medtronic Implantable Device Shield Sub-Assemblies and other Products,
as defined below.
B. Medtronic desires to purchase Implantable Device Shield Sub-Assemblies
and other products from WGT in accordance with the terms of this
Agreement.
C. The parties acknowledge that Medtronic's purpose in entering into this
Agreement is to obtain a reliable source of Implantable Device Shield
Sub-Assemblies and other products of high quality and that WGT agrees
to provide such a source subject to all terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
-----------
1.1) Specific Definitions. As used in this Agreement, the following terms
shall have the meanings set forth or as referenced below:
"Affiliate" of a specified person (natural or juridical) means a person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified. "Control"
shall mean ownership of more than 50% of the shares of stock entitled to vote
for the election of directors in the case of a corporation, and more than 50% of
the voting power in the case of a business entity other than a corporation.
"Agreement" means this Agreement and all its attachments.
"Assembly Ready" means units of a Product that are delivered to Medtronic
by WGT in a state that is finished per Medtronic's specifications.
"Asset Purchase Documents" means such purchase order or orders, and/or such
other or related bills of sale, assignments and contracts, as Medtronic and WGT
may execute and deliver relating to the contemplated purchase by WGT from
Medtronic of certain assets currently used by Medtronic in the production of
Products.
"Change of Control" means the occurrence of any of the following events:
(a) The acquisition by any person of beneficial ownership, directly or
indirectly, of securities of WGT representing fifty percent (50%) or more of the
total voting power represented by WGT's then outstanding voting securities;
(b) A change in the composition of the Board of Directors of WGT occurring
within a two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean directors
who either (i) are directors of WGT as of the date hereof, or (ii) are elected,
or nominated for election, to the Board of Directors of WGT with the affirmative
votes of at least a majority of the Incumbent Directors at the time of such
election or nomination (but shall not include an individual not otherwise an
Incumbent Director whose election or nomination is in connection with an actual
or threatened proxy contest relating to the election of directors to WGT);
(c) A merger or consolidation of WGT with any other corporation, other than
a merger or consolidation which would result in the voting securities of WGT
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of WGT or such surviving entity outstanding
immediately after such merger or consolidation, or the approval by the
stockholders of WGT of a plan of complete liquidation of WGT or of an agreement
for the sale or disposition by WGT of all or substantially all WGT's assets;
(d) The sale or transfer of all or substantially all of the assets of WGT
relating to the manufacture of any Product; or
(e) The complete liquidation or dissolution of WGT.
"Confidential Information" means know-how, trade secrets, and unpublished
information disclosed (whether before or during the term of this Agreement) by
one of the parties (the "disclosing party") to the other party (the "receiving
party"), and which is marked as proprietary or confidential as provided below.
All Confidential Information disclosed by one party to the other under this
Agreement shall be in writing and bear a legend "Proprietary," "Confidential" or
words of similar import or, if disclosed in any manner other than writing, shall
be followed by confirmation that such information is confidential by the
disclosing party within 30 days. The following information communicated to WGT
by Medtronic shall be considered Confidential Information of Medtronic for
purposes of Article 4 and the other provisions of this Agreement whether or not
marked "Proprietary" or "Confidential": (1) Specifications; (2) information
regarding circuitry design or mechanical design; (3) information regarding
product or component qualification or verification; (4) information regarding
delivery or production schedules; (5) information regarding product features;
(6) information regarding manufacturing processes, including without limitation
the Exclusive Processes; (7) information related to product technology; and (8)
information related to product costs and pricing. The following information
communicated to Medtronic by WGT shall be considered Confidential Information of
WGT for purposes of Article 4 and the other provisions of this Agreement whether
or not marked "Proprietary" or "Confidential": (1) information regarding WGT
delivery and production schedules or production capacity; (2) information
regarding WGT product or component qualification or verification; (3)
information related to WGT manufacturing processes; (4) information related to
product technology including WGT designs and materials used for components and
assemblies; and (5) information related to Product pricing.
2
"Contract Year" means each fiscal year of Medtronic during the Term;
provided, that the first Contract Year shall commence on the date hereof and end
on April 29, 2005.
"Covered Inventory" means WGT's inventory, as of the date of a notice of
termination under Section 7.2(a) or 7.2(c), of finished Products,
work-in-process and raw materials, components and subcomponents which were
purchased by WGT specifically for the purpose of manufacturing Products for
Medtronic hereunder and which cannot practically be used by WGT otherwise in its
business, in each case to the extent consistent with Medtronic's then-current
Forecast for the ninety (90) days following the date of such notice.
"Effective Date" means the date upon which this Agreement is fully executed
by the parties hereto.
"Exclusive Processes" means the manufacturing processes described in
Exhibit B hereto.
"Feedthrough" means a subassembly, for use in Implantable Device Shield
Sub-Assemblies and consisting of the following components: (a) an outer
electrically conductive member (usually referred to as a flange or ferrule), an
inner electrically conductive member or members (usually represented as a
metallic wire or pin, or multiple wires or pins), and a nonconductive material
fused or brazed between the inner and outer members (usually a glass or ceramic
material) such that they are electrically insulated and hermetically sealed and
(b) an EMI filtering capacitor (or multiple EMI filtering capacitors).
"Feedthrough Transfer Price" means, with respect to any Feedthrough
provided by Medtronic to WGT for incorporation into a Product hereunder, an
amount to be established by Medtronic and set forth in an amended Exhibit K.
"Force Majeure" means as defined in Section 4.9(a).
3
"Implantable Device Shield Sub-Assembly(ies)" means drawn titanium
enclosure halves which are manufactured for use in Medtronic's implantable
pacemakers, implantable defibrillators and implantable neurostimulation systems,
and with respect to which specified value-added operations (including without
limitation cleaning, insulator attachment, engraving, spot welding of various
other metal components, laser welding of filtered feedthroughs, and appropriate
packaging for transport) have been completed.
"Intellectual Property" means U.S. and foreign Patent Rights, trademarks,
service marks and registrations thereof and applications therefore, copyrights
and copyright registrations 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, and technical information including but not limited to information
embodied in material specifications, processing instructions, equipment
specifications, product specifications, confidential data, electronic files,
research notebooks, invention disclosures, research and development reports and
the like related thereto, all amendments, modifications, and improvements to any
of the foregoing.
"Intellectual Property Rights" means all rights in Intellectual Property.
"Interest Rate" means interest compounded quarterly at a per annum rate
equal to the prime commercial lending rate quoted by Wells Fargo Bank Minnesota,
N.A. in effect from time to time, plus two percent (2%).
"Interim Period" means the period beginning on the date hereof and ending
on * .
"Invention" means any invention, discovery, know-how, trade secret, data,
information, technology, process or concept, whether or not patented or
patentable, and whether or not memorialized in writing.
"Know-How" means all trade secrets, expertise, inventions, discoveries and
technical information, including but not limited to information embodied in
drawings, designs, patent applications, material specifications, processing
instructions, formulas, equipment specifications, product specifications,
confidential data, computer software, electronic files, research notebooks,
invention disclosures, research and development reports, fabrication procedures,
work flow descriptions or depictions, assembly procedures, formulae and the like
related thereto, and all amendments, modifications and improvements to any of
the foregoing.
"Knowledge" of a person means actual knowledge of a fact or the knowledge
that such person could reasonably be expected to have based on reasonable
inquiry. The "knowledge" of an entity shall include the knowledge of the
individuals who are executive officers of such entity at the time in question.
"Materials Cost Change" means an increase or decrease, as the case may be,
in the six-month moving average cost to WGT of raw materials or of components
(to the extent the vendor's price change is based on an increase or decrease in
the cost of raw materials) measured by changes in (i) a published index (or
market pricing history provided to the parties by the relevant raw material
vendor) for such raw material(s) using the price as of June 30, 2004 (or the
closest date prior thereto on which such index was published) as the base for
measurement or (ii) if there is no such index, using WGT's cost for such raw
material or component as of June 30, 2004 as the base for measurement.
4
"Medtronic" means Medtronic Puerto Rico Operations Co. and its Affiliates.
"Mexico Facility" means the facility leased by WGT and located at Tijuana
Industrial Center II, Building 10, Boulevard Belles Artes #20120, Tijuana, Baja
California, Tijuana, Mexico.
"Medtronic Competitor" means any person that designs, manufactures and/or
sells implantable pacemakers, implantable defibrillators or implantable
neurostimulation systems.
"New Product Category" means each of the following categories of Products:
(i) Feedthroughs, (ii) batteries and (iii) capacitors, and (iv) such other
categories of products, if any, as Medtronic and WGT shall agree upon in
writing.
"Product" means the Implantable Device Shield Sub-Assemblies, Feedthroughs,
battery and capacitor cases, and other medical device components, in each case
identified on Exhibit A, as modified from time to time pursuant to Section 2.1.
"Qualification" means Product performance testing conducted according to an
approved and controlled protocol to ensure that the Product meets
Specifications. Shield Assemblies used to perform the qualification must be
manufactured using validated equipment and processes per WGT procedures.
"Specifications" means (i) with respect to Products listed on Exhibit A as
of the date hereof, the specifications listed on Exhibit C, and (ii) with
respect to Products added to Exhibit A after the date hereof, all applicable
specifications and protocols provided to WGT by Medtronic hereunder, after
consultation with WGT, relative to the design, physical characteristics,
function, performance, manufacture, packaging and quality of such Products, in
each case as modified pursuant to Section 3.2. To the extent not inconsistent
with the foregoing, Specifications will also include all published
specifications and protocols of WGT applicable to the Products.
"Term" means as defined in Section 7.1.
"Third Party Documentation" means drawings, designs, material
specifications, processing instructions, equipment specifications, product
specifications, confidential data, computer software, electronic files, research
notebooks, invention disclosures, research and development reports, fabrication
procedures, work flow descriptions or depictions, assembly procedures, formulae,
and the like that are given or made available to, or summarized and provided to,
WGT in writing or by electronic transmission by a person other than Medtronic.
"WGT" means Wilson Greatbatch Technologies, Inc. and its Affiliates.
1.2) General Definitional Provisions.
5
(a) The words "hereof," "herein," and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provisions of this Agreement.
(b) The terms defined in the singular shall have a comparable meaning when
used in the plural, and vice versa. Terms referring to a masculine gender shall
be deemed to refer to the feminine or neuter genders, as applicable.
(c) References to an "Exhibit" or to a "Schedule" are, unless otherwise
specified, to one of the Exhibits or Schedules attached to or referenced in this
Agreement, and references to an "Article" or a "Section" are, unless otherwise
specified, to one of the Articles or Sections of this Agreement.
(d) The term "person" includes any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof
(e) The term "dollars" or "$" shall refer to the currency of the United
States of America.
ARTICLE 2
SALE AND PURCHASE OF PRODUCT
----------------------------
2.1) Sale of Products.
(a) During the Term, WGT will sell and supply to Medtronic Assembly Ready
Implantable Device Shield Sub-Assemblies and other Products listed on Exhibit A,
as amended from time to time as described herein.
(b) If Medtronic delivers to WGT written notice identifying additional
Implantable Device Shield Sub-Assemblies or other Products to be added to
Exhibit A, together with specifications with respect to such additional products
(an "Additional Product Notice"), the products identified in such Additional
Product Notice shall be deemed to be added to Exhibit A as of the thirtieth
(30th) business day after the date of such Additional Product Notice. A purchase
order identifying such additional Product shall constitute written notice for
purposes of this Section 2.1(b).
(c) During the Term, WGT shall develop products and components for use in
Products in accordance with the terms set forth in Exhibit L, as amended from
time to time upon mutual agreement of the parties. Upon completion of
development with respect to a product pursuant to Exhibit L, such product shall
be added to Exhibit A and become a Product upon notice from Medtronic to WGT.
Upon completion of development of a component for use in Products pursuant to
Exhibit L, such component shall be incorporated into the Specifications with
respect to such Product upon notice from Medtronic to WGT. Upon request by
Medtronic or as set forth in Exhibit L, WGT shall provide to Medtronic a
reasonably detailed report setting forth a summary of the development activities
of WGT hereunder to date and the status of pending development under Exhibit L.
6
2.2) Forecasts. Attached hereto as Exhibit J for informational purposes is
a demand plan indicating Medtronic's anticipated demand for Products for the
first Contract Year. On or about February 1, 2005, Medtronic shall deliver to
WGT a 12-month demand plan indicating by fiscal quarter of Medtronic the number
of Products anticipated to be purchased by Medtronic (as updated as provided
herein, the "Forecast"). The Forecast shall be updated by Medtronic in good
faith no less frequently than quarterly (on or before the first day of each
subsequent fiscal quarter of Medtronic) for a rolling successive 12-month
period. If Medtronic does not provide WGT with an updated Forecast for a
particular period, as required by this Section 2.2, then the forecast most
recently provided shall be deemed to constitute the forecast for such particular
period. Each Forecast may be used for purposes of facilitating WGT's
manufacturing plans, and meeting the lead times required by certain of WGT's
suppliers, but does not constitute a firm order. WGT agrees to comply with the
Supplier obligations under the Supplier Managed Inventory Agreement attached
hereto as Exhibit O.
2.3) Orders.
(a) Products will be ordered via standard Medtronic purchase orders, which
may be submitted via mail, fax or, if mutually agreed by the parties, electronic
interface technologies, such as electronic data interchange (EDI) and XML. WGT
will promptly acknowledge receipt of orders. Each order shall be deemed to have
been accepted by WGT if (i) the order provides for delivery of Products to the
specified delivery destination no earlier than * after the date of the order, or
(ii) unless the order is rejected by WGT providing Medtronic written notice of
rejection within * after receipt.
(b) Each accepted purchase order shall give rise to a contract between
Medtronic and WGT for the sale of the Products ordered and shall be subject to
and governed by the terms of this Agreement. The terms and conditions of this
Agreement shall so govern and supersede any additional or contrary terms set
forth in Medtronic's purchase order or any WGT or Medtronic acceptance,
confirmation, invoice or other document unless duly signed by an authorized
representative of both Medtronic and WGT and expressly stating and identifying
which specific additional or contrary terms shall supersede the terms and
conditions of this Agreement. WGT will use best efforts to satisfy all orders
submitted by Medtronic for Products.
7
(c) Continuity of Supply:
(i) WGT will deliver written notice to Medtronic at least * before exiting
the business of making a Product. Within * after receipt of such notice,
Medtronic may submit an order or orders for Products, which order or orders
shall be deemed accepted by WGT to the extent the number of units of Products so
ordered does not exceed, in the aggregate, * times Medtronic's most recent
annual forecast for such Products under Section 2.2. WGT shall satisfy any such
order as soon as reasonably practicable, and in any event WGT shall deliver all
Products ordered pursuant to this subsection over a period no longer than *
after the date of such order, on a delivery schedule consistent with the timing
of Product deliveries over the * immediately preceding Medtronic's order
pursuant to this subsection.
(ii) WGT shall give Medtronic not less than * prior written notice before
consummating or entering into an agreement with respect to a Change of Control.
Such notice shall set forth in reasonable detail the names of all parties
involved in such Change of Control transaction. In the event of a Change of
Control pursuant to which any Medtronic Competitor would acquire control of WGT
or the portion of WGT's business that manufactures any of the Products, then:
(A) Upon such a Change of Control, (x) Medtronic may terminate this
Agreement under Section 7.2(c), except upon not less than * written notice, and
(y) WGT agrees that, upon such termination and in addition to its obligations
under paragraph (i) of this Section 2.3(c), WGT will provide Medtronic with
commercially reasonable cooperation in connection with the transition of the
manufacture and production of Products to such person(s) (including Medtronic)
and to facility or facilities as Medtronic may designate; and
(B) WGT or its successors shall continue to manufacture and sell all
Products then covered by this Agreement for the longer of: (x) * after the
effective date of such Change of Control or (y) the balance of the Term of this
Agreement (the "Continuity Period"), on the same terms and conditions of sale as
provided for in this Agreement; provided, however, that this clause (C) shall
not restrict Medtronic's right to terminate this Agreement under Section
2.3(ii)(B).
2.4) Pricing.
(a) Exhibit A lists the * prices to be paid for Assembly Ready Implantable
Device Shield Sub-Assemblies and all other Products, subject to Section 2.4(d)
below. The parties will in good faith negotiate, based on the pricing model
attached hereto as Exhibit D (solely with respect to "Shield Products" (as
defined below)) and prices prevailing in the market for similar products, the
prices for any additional Products added to Exhibit A pursuant to Section 2.1
after the date hereof. If despite such good faith negotiations, the parties have
not reached agreement on the price for any such additional Product within *
after the date of the Additional Product Notice with respect to such additional
Product, either party may initiate the accelerated arbitration process described
in Exhibit I solely to determine the price for such additional Product. The
results of such arbitration shall be binding upon the parties. For purposes of
this Section, "Shield Products" shall mean drawn titanium enclosure halves other
than Implantable Device Shield Sub-Assemblies.
8
(b) * . If requested by Medtronic, within * of the completion of any
Contract Year, WGT shall provide to Medtronic a written certification signed by
the Chief Financial Officer or President of WGT that WGT has fully complied with
the terms of this Section 2.4(b). Upon reasonable notice and during regular
business hours, but no more frequently than * during any Contract Year and only
with respect a Contract Year or Contract Years within the * most recently
completed Contract Years, WGT shall make available appropriate records
substantiating the accuracy of WGT's certifications referenced above for audit
at Medtronic's expense by a nationally recognized independent certified public
accounting firm to verify the accuracy of such certifications. Such firm shall
execute a suitable confidentiality agreement reasonably acceptable to WGT prior
to conducting such audit. Such firm may disclose to Medtronic (i) its
conclusions regarding the accuracy and completeness of said certifications; and
(ii) if the firm concludes that said certifications are inaccurate, all
information necessary for Medtronic to determine the amount of the price
adjustment and payment or credit to which it is entitled hereunder. * .
(c) The parties acknowledge that nothing in this Agreement will prevent
Medtronic from developing products similar or identical to the Products covered
by this Agreement or from sourcing such products from another supplier, and that
nothing in this Agreement entitles WGT to any notice from or right to negotiate
(exclusively or otherwise) with Medtronic with respect to the manufacture and
sale of such products.
(d) The price for a Product from time to time set forth on Exhibit A is
subject to upward or downward modification from time to time due to (i) a
Materials Cost Change in an amount greater than * percent * of the price then in
effect hereunder for such Product; or (ii) any incremental increases or
decreases in the costs of production labor, equipment and materials which are
directly and exclusively related to changes expressly required by Medtronic
pursuant to Section 3.2(b) in the materials, structure or manufacture of
Products to be provided by WGT to Medtronic; or (iii) changes in federal law or
regulations (including treaties to which the United States of America is a
party) that increase or decrease the amount of taxes, duties, tariffs or similar
charges (collectively, "Importation Charges") payable on the importation of such
Product into the United States from Mexico, in comparison to the Importation
Charges that would be payable under the laws in effect as of * , by an amount
greater than * percent * of the price then in effect hereunder for such Product.
If either Medtronic or WGT determines that a price increase or decrease under
this Section 2.4(d) is required or permissible, such party shall deliver written
notice to the other party setting forth the basis for such determination (a
"Cost Change Notice"). If the parties agree on the amount of the change in costs
due to the circumstances described above, the price of the affected Product
shall be adjusted by * percent * of the amount of such cost change. If within *
after the date of the Cost Change Notice the parties have not agreed on the
amount of the change in costs due to the circumstances described above, either
party may initiate the accelerated arbitration process described in Exhibit I
solely to determine the amount of such cost change. The results of such
arbitration shall be binding upon the parties and the price of the affected
Products shall be adjusted by * percent * of the amount of such cost change due
to the circumstances described above. Price adjustments hereunder shall be
effective beginning * after the date of the parties' agreement or the
arbitrator's determination regarding the amount of such cost change, and
Medtronic shall be permitted to adjust its then current Forecast to take into
account any such price adjustment. WGT may not impose a price increase
hereunder, and a price decrease shall not be required hereunder, more frequently
than * every * . Notwithstanding the foregoing provisions (other than those
regarding the process for determining the amount of a cost change), WGT may at
any time give effect to price increases based on cost changes described in
subpart (ii) above upon determination or agreement (as provided above) with
respect to the amount of such cost changes. WGT shall deliver to Medtronic in
connection with any notice provided for herein a written report setting forth in
reasonable detail any and all information relevant to the determination that a
price adjustment is required or permitted under this Section 2.4(d). Upon
Medtronic's request, WGT shall make available appropriate records regarding cost
changes for audit at Medtronic's expense by a nationally recognized independent
certified public accounting firm. Such firm shall execute a suitable
confidentiality agreement reasonably acceptable to WGT prior to conducting such
audit. Such firm may disclose to Medtronic (i) its conclusions regarding the
amount of any cost change; and (ii) if the firm concludes that any cost change
determination by WGT is inaccurate, all information necessary for Medtronic to
determine the amount of the price adjustment and payment or credit to which it
is entitled hereunder.
9
(e) If, during any Contract Year, Medtronic orders in the aggregate a
number of units of Products that is less than * percent * of the aggregate
number of units of Products set forth in the Forecast in effect as of the
beginning of such Contract Year, WGT may at its option require Medtronic to
negotiate in good faith an increase in the prices set forth on Exhibit A for the
next Contract Year, to account for higher per unit manufacturing costs due to
lower than anticipated volume. WGT may exercise this option by delivering
written notice (the "WGT Pricing Notice") to Medtronic no later than * after the
end of such Contract Year, and within * after the date of the WGT Pricing
Notice, the parties shall commence good faith negotiations with respect to such
price increase for such next Contract Year. If, despite such good faith
negotiations, the parties have not reached agreement on the amount of such price
increase within * days after the date of the WGT Pricing Notice, either party
may initiate the accelerated arbitration process described in Exhibit I solely
to determine the amount of such price increase. The results of such arbitration
shall be binding upon the parties. Any increase in the prices set forth on
Exhibit A as a result of the procedure set forth in this Section shall be
effective for all Products ordered pursuant hereto after the date of the WGT
Pricing Notice.
(f) If, during any Contract Year, Medtronic orders in the aggregate a
number of units of Products that is greater than * percent * of the aggregate
number of units of Products set forth in the Forecast in effect as of the
beginning of such Contract Year, Medtronic may at its option require WGT to
negotiate in good faith a decrease in the prices set forth on Exhibit A for the
next Contract Year, to account for lower per unit manufacturing costs due to
higher than anticipated volume. Medtronic may exercise this option by delivering
written notice (the "Medtronic Pricing Notice") to WGT no later than * after the
end of such Contract Year, and within * after the date of the Medtronic Pricing
Notice, the parties shall commence good faith negotiations with respect to such
price decrease for such next Contract Year. If, despite such good faith
negotiations, the parties have not reached agreement on the amount of such price
decrease within * after the date of the Medtronic Pricing Notice, either party
may initiate the accelerated arbitration process described in Exhibit I solely
to determine the amount of such price decrease. The results of such arbitration
shall be binding upon the parties. Any decrease in the prices set forth on
Exhibit A as a result of the procedure set forth in this Section shall be
effective for all Products ordered pursuant hereto after the date of the
Medtronic Pricing Notice.
10
(g) During the Interim Period, the price for any Product requiring a
Feedthrough (pursuant to applicable Specifications) shall be determined by
adding to the price of such Product set forth in Exhibit A the appropriate
Feedthrough Transfer Price set forth in Exhibit K. Within ninety (90) days after
the date hereof, Medtronic shall establish Feedthrough Transfer Prices for
Feedthroughs to be supplied by Medtronic pursuant to Section 3.13 and
incorporated into Products. The Feedthrough Transfer Prices shall be set forth
in an amended Exhibit K.
2.5) Payment Terms. Except as otherwise specified in a purchase order,
payment terms will be net thirty (30) days after the date of invoice.
2.6) Delivery. WGT will deliver Products on, or no more than three (3)
business days before, the delivery dates and to the locations specified in
Medtronic's purchase orders that have been accepted or deemed accepted pursuant
to Section 2.3(a). Unless otherwise agreed in writing by Medtronic and WGT,
delivery of Products will be FCA WGT's production facility (per Incoterms 2000),
and title and risk of loss will pass from WGT to Medtronic when Products are
tendered for shipment as directed by Medtronic.
2.7) Order Limitations.
(a) WGT shall not be required, pursuant to any purchase order deemed
accepted pursuant to Section 2.3, to deliver in any fiscal quarter of Medtronic
quantities in excess of * of forecasted requirements for such * as reflected in
the most recent Forecast; provided, that WGT shall use all commercially
reasonable efforts to supply any such excess as specified in such purchase
order; and provided, further, that deliveries of replacement Products pursuant
to Section 3.6(b) or otherwise shall not be considered delivered for purposes of
this Section 2.7.
(b) WGT shall maintain inventories of finished Products, and raw materials
necessary to produce finished Products, sufficient to meet its supply
obligations hereunder.
(c) Modification of Orders. No accepted order shall be modified or canceled
except as provided herein or upon the mutual agreement of the parties. Mutually
agreed change orders shall be subject to all provisions of this Agreement,
whether or not the change order so states. Notwithstanding the foregoing,
Medtronic may in its sole discretion by written notice to WGT cancel orders for
and deliveries of any Products which are not delivered as specified in the
accepted order, or which are delivered but do not meet the applicable
Specifications and are not replaced with Products meeting such Specifications,
within thirty (30) days after the delivery date specified in the accepted order.
In the event of such cancellation by Medtronic, Medtronic may then make such
appropriate adjustments to any outstanding orders and forecasts as it deems
advisable in light of any shortfalls in supply which relate to such
cancellation.
11
ARTICLE 3
PRODUCTION
----------
3.1) Compliance with Specifications. WGT will cause all Products to be
manufactured in strict accordance with the applicable Specifications and will
cause all Products delivered hereunder to meet such Specifications.
3.2) Changes.
(a) If WGT determines that it is necessary or desirable to change the
Specifications for any Product, or to change the design, materials production
processes or production testing affecting the form, fit, function, performance
or materials composition of any Product, WGT will immediately notify Medtronic
in writing. WGT shall not implement any such change without Medtronic's prior
written consent.
(b) If Medtronic determines that it is necessary or desirable to make a
change to the applicable Specifications for any Product, then Medtronic will so
notify WGT in writing (by purchase order or otherwise). WGT will respond to
Medtronic in writing as soon as practicable, but in no event later than * ,
after the date of any such notice, specifying (i) WGT's suggestions, if any, for
modifying Medtronic's Specifications change; and (ii) the lead time necessary to
implement such change; and (iii) the amount and nature of additional costs or
cost savings, if any, estimated to result from implementing such change; and
(iv) WGT's recommendation with respect to an adjustment, if any, to the price of
the affected Product due to such change. If despite good faith negotiations, the
parties have not reached agreement on the amount of the price adjustment with
respect to the affected Product within * after the date of WGT's response,
either party may initiate the accelerated arbitration process described in
Exhibit I solely to determine the amount of such adjustment. The results of such
arbitration shall be binding upon the parties. Notwithstanding any negotiations
or arbitration regarding price adjustments, WGT shall implement such change (and
the applicable Specifications shall be deemed to be modified in accordance with
such change) as soon as reasonably practicable, but in any event within the lead
time specified by WGT in its response to Medtronic as provided above.
(c) WGT shall provide a written report to Medtronic on a * basis setting
forth in reasonable detail WGT's production yield on Products during the
immediately preceding * with respect to each Product. If WGT's production yield
for any Products is lower than * percent * in any month, WGT shall also provide
to Medtronic written * corrective action reports until WGT's production yield
for such Product exceeds * percent * over a * period.
12
3.3) Packaging and Labeling. All Products will be packaged and labeled in
accordance with any applicable Specifications.
3.4) Quality.
(a) Unless otherwise specifically agreed in writing by Medtronic, all
Products supplied under this Agreement will be manufactured in accordance with:
(1) all applicable standards of the International Standards Organization (ISO)
and applicable ISO-certified processes and (2) all other quality standards and
quality assurance plans referenced in the Specifications.
(b) WGT shall use best efforts to resolve any Product quality or
performance issues that arise during the Term. Upon written demand by Medtronic,
such efforts shall include making appropriate WGT personnel available (at WGT's
expense) at Medtronic facilities where such Product quality or performance
issues are identified.
(c) Medtronic agrees to follow reasonable quality control standards with
respect to the storage, preservation and use of Products purchased under this
Agreement and consistent in all material respects with the reasonable
recommendations of WGT. Medtronic shall maintain production, inventory and sales
records as required by applicable law with respect to devices incorporating
Products purchased hereunder.
3.5) Compliance. WGT represents and warrants to Medtronic that: (a) the
Products delivered to Medtronic will not be adulterated or misbranded within the
meaning of the United States Food, Drug, and Cosmetic Act; (b) all Products
delivered to Medtronic will have been manufactured in accordance with a quality
system that is consistent with FDA Good Manufacturing Practices, Quality System
Regulations and other applicable standards; (c) the manufacture, sale and
delivery of Products will not violate any, and the Products will conform to all
applicable, governmental statutes, treaties, conventions, embargoes, orders,
ordinances or regulations referenced in the Specifications; and (d) the
manufacture, sale and delivery of Products will not, to WGT's knowledge, be in
violation of any, and the Products will conform to all applicable, other
governmental statutes, treaties, conventions, embargoes, orders, ordinances or
regulations.
3.6) Non-Conforming Product.
(a) Medtronic will have the right to reject any Product that does not meet
all applicable Specifications. Any such rejection based on patent nonconformity
with Specifications shall be accomplished by written notice (specifying the
basis for rejection) from Medtronic to WGT promptly after inspection and in any
event within sixty (60) days after actual delivery.
(b) In the event that any Product does not meet applicable Specifications
and Medtronic has notified WGT, WGT will replace such Product free of charge and
WGT shall cover expenses (including freight and customs clearance, if any)
incurred by Medtronic in connection with (a) shipment of replacement Product to
the same location and (b) shipment of the nonconforming Product back to WGT (if
so requested by WGT). In the event of a rejection of nonconforming Product, WGT
will ship replacement Product as soon as practicable, but in any event within
thirty (30) days of its receipt of a proper rejection notice from Medtronic.
Notwithstanding the foregoing, and without any effect on the determination of
whether WGT has timely delivered Products for purposes of Section 6.1, if the
nonconformance is the result of manufacturing issues with respect to which WGT
has initiated appropriate corrective action, WGT will use best efforts to ship
replacement Product within thirty (30) days after Medtronic's rejection notice
and will in any event ship such replacement Product within thirty (30) days
after implementing such corrective action.
13
3.7) Regulator Approval Efforts. During the term of this Agreement,
Medtronic shall have responsibility for obtaining at its expense, in its name
and at its discretion any necessary device regulatory approvals from the U.S.
Food and Drug Administration (i.e., PMAs or 510(k)s as the case may be), and
applicable regulatory agencies of such other countries in which products
incorporating the Products will be sold. WGT shall supply Medtronic with all
documents (including without limitation instruments, information and reports)
and advice and general assistance as is necessary to complete, and as is
reasonably requested by Medtronic in connection with, such regulatory approval
efforts.
3.8) Taxes. Medtronic shall be responsible for and shall pay, or reimburse
WGT for, all taxes, duties, import fees, assessments and other governmental
charges (except income taxes) including those that relate to the importation of
Products from the United States into countries to which Medtronic has requested
delivery of such Products. Notwithstanding the foregoing, if WGT elects to
manufacture Products outside of the United States, WGT shall be responsible for
and pay any taxes or fees associated with any exportation of such products from
locations outside the United States and importation of such Products into the
United States.
3.9) Excused Performance.
(a) If either party is prevented from performing its obligations hereunder
solely as a result of a strike, riot, war, invasion, act of God, fire,
explosion, flood, delay of common carrier, act of government agency or
instrumentality, judicial action, or similar event or condition, in each case
which is outside the reasonable control of such party and which did not exist
and was not reasonably foreseeable as of the date hereof (a "Force Majeure"),
such party's performance hereunder will be temporarily excused, only by the
degree affected and after reasonable efforts by the party to avoid being so
affected; provided, that such party delivers to the other party written notice
promptly upon learning of such event or condition, which notice shall include a
detailed description of the event or condition and the anticipated effect on
such party's ability to perform its obligations hereunder.
(b) Upon giving notice to the other party, a party affected by a Force
Majeure shall be excused from the performance of its obligations under this
Agreement as described in Section 3.9(a), 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 such obligations is prevented by such Force Majeure.
Nothing in this Section 3.9 shall affect Medtronic's right to terminate a
purchase order as provided in Section 2.8 or the determination of whether WGT
has timely delivered Products for purposes of Section 6.1.
14
(c) During the period that the performance by one of the parties of its
obligations under this Agreement has been suspended by reason of an event of
Force Majeure, the other party may likewise suspend the performance of all or
part of its obligations hereunder to the extent that such suspension is
commercially reasonable.
3.10) Subcontracting. WGT shall not subcontract any of its obligations
under this Agreement without the prior written consent of Medtronic, which shall
not unreasonably be withheld or delayed. Medtronic shall be deemed to have
consented to subcontracting hereunder, to the extent approved in writing as part
of Medtronic's applicable qualification procedures. WGT shall not make any
changes in suppliers of material or subcomponents, or subcontractors of any
processes, in connection with supplying Products hereunder, unless (i) such
subcontracting is in accordance with WGT's current pre-production quality
assurance process; and (ii) Medtronic has provided its prior written consent,
which shall not unreasonably be withheld or delayed. Any subcontracting will be
subject to the following terms:
(a) the subcontracting must be under a written agreement which (a)
obligates the subcontractor to comply with all relevant terms and conditions of
this Agreement as though it were WGT, and (b) names Medtronic as a third party
beneficiary, and
(b) WGT must remain primarily responsible for all acts and omissions of the
subcontractor and will guarantee the performance of the subcontractor.
3.11) Exclusivity.
(a) WGT acknowledges that Medtronic has provided WGT the Exclusive
Processes, which constitute proprietary Intellectual Property related to the
manufacturing of Implantable Device Shield Sub-Assemblies, to allow WGT to
manufacture Products as required by Medtronic. WGT agrees to use and make
available the Exclusive Processes only as required to manufacture Products for
Medtronic hereunder. WGT will use best efforts to ensure that other customers
will not see or otherwise have access to these Exclusive Processes.
Notwithstanding the foregoing, WGT shall not be restricted from using in WGT's
business (i) Third Party Documentation received from other WGT customers so long
as such Third Party Documentation, to the knowledge of WGT, was not disclosed by
such customer in violation of any obligation of confidentiality; or (ii) any
Intellectual Property of WGT as of the date of this Agreement.
(b) During the Term, WGT shall not, directly or indirectly, develop,
manufacture, sell or distribute to or for any third party any product that is
substantially identical to a Product specifically developed for Medtronic by WGT
hereunder.
15
3.12) Manufacturing Facilities.
(a) All Products shall be manufactured at WGT's Mexico Facility or WGT's
current manufacturing facility for such Product identified on Exhibit N, except
as provided otherwise in this Section 3.12(a). If WGT intends to manufacture
Products at any other location, WGT shall provide written notice of such
intention to Medtronic at least 180 days before commencing Product manufacturing
operations at such location. WGT represents and warrants to Medtronic that no
Product, nor any subcomponent of any Product, shall be manufactured or assembled
(i) in any country that is embargoed by the United States, as identified by the
Office of Foreign Assets Control of the U.S. Department of Treasury; or (ii) by
any person listed on the Prohibited Parties Lists maintained by the U.S.
Departments of Treasury, State and Commerce.
(b) All Products shall be manufactured at facilities that meet Medtronic's
manufacturing facility specifications attached hereto as Exhibit E. WGT shall,
upon reasonable notice and during regular business hours, provide Medtronic
personnel and third party consultants access to appropriate personnel,
facilities and records of WGT used for manufacturing Products hereunder for the
purpose of confirming WGT's compliance with applicable requirements of this
Article 3.
3.13) Components.
(a) Attached hereto as Exhibit F is a list (1) setting forth the names and
addresses of subcomponent suppliers that WGT shall use in connection with the
manufacture and assembly of Products; and (2) describing in all material
respects the goods provided to WGT by such supplier. WGT shall not obtain
subcomponents from third parties for use in Products other than as described on
Exhibit F without the prior written consent of Medtronic, which shall not
unreasonably be withheld. In any event, WGT shall obtain subcomponents for use
in Products only from suppliers that have been qualified in accordance with
Medtronic's applicable supplier qualification procedures.
(i) (b) During the Interim Period, Medtronic shall supply Feedthroughs to
WGT solely for use in manufacturing Products for delivery to Medtronic
hereunder, and WGT shall use no other Feedthroughs in the manufacture of
Products. The quantity of Feedthroughs required for each Product supplied during
the Interim Period hereunder, as set forth in Medtronic's Specifications for
such Product, shall be delivered at the Feedthrough Transfer Price; provided,
that additional Feedthroughs in quantities within the "fall-out" rates set forth
in Exhibit K shall be provided to WGT at no cost. In addition, WGT shall pay
Medtronic the Feedthrough Transfer Price (plus shipping and related costs
associated with transporting such Feedthroughs to WGT facilities) for (i) any
additional Feedthrough included in a replacement Product delivered hereunder,
and (ii) Feedthroughs used in manufacturing Products, in quantities exceeding
the applicable "fall-out" rates set forth in Exhibit K.
(c) Unless otherwise agreed in writing by Medtronic and WGT, delivery of
Feedthroughs supplied under this Section 3.13 will be CPT WGT's production
facility (per Incoterms 2000), and title and risk of loss will pass from
Medtronic to WGT when such Feedthroughs are tendered for shipment. During the
Interim Period, WGT shall (i) maintain a reasonable supply of Feedthroughs in
good condition as required to permit WGT to satisfy its obligations hereunder;
(ii) provide Medtronic written notice at least forty-five (45) days before
additional quantities of Feedthroughs are required by WGT; and (iii) reasonably
communicate and otherwise cooperate with Medtronic to prevent Feedthrough
shortages. If during the Interim Period Medtronic fails to supply WGT with
sufficient Feedthroughs that meet the Specifications to enable WGT to meet its
obligations to supply Products under this Agreement in a timely manner, then WGT
shall have no liability to Medtronic on account of such failure, and Medtronic
shall have no right, as a result of such failure, to exercise its license under
Section 6.1(a) or to terminate this Agreement under Sections 7.2(a) or 7.2(b).
16
3.14) Ownership of Tooling and Components. Medtronic, at its discretion,
may provide WGT certain Product-specific tooling for use in the production of
Products. All molds, tooling and components (excluding, during the Interim
Period, Feedthroughs) delivered to WGT for use in the production of Products
shall be the property of Medtronic and WGT shall not use any Medtronic-supplied
mold, tooling or components (including Feedthroughs) for any purposes except as
expressly authorized in writing by Medtronic. WGT will take no action that could
result in a lien on or other encumbrance of, or that could otherwise compromise
Medtronic's ownership of such molds, tooling or components. Upon the termination
or expiration of this Agreement or the earlier request of Medtronic, all molds,
tooling and components owned by Medtronic will be returned to Medtronic in good
condition, except in the case of molds and tooling for reasonable wear and tear,
and any Medtronic-supplied Feedthroughs will be returned upon reimbursement by
Medtronic for amounts paid by WGT for such Feedthroughs. WGT shall at all times
during the Term maintain adequate insurance to cover any damage or loss with
respect to such molds, tooling and components, and, upon request by Medtronic,
deliver a certificate of insurance evidencing such coverage.
3.15) Maintenance of Tooling. WGT shall maintain all of Medtronic's molds
and tooling in good working condition at all times while in WGT's possession.
Routine maintenance of molds and tooling will be carried out at WGT's expense.
"Routine Maintenance" shall include cleaning standard components and repairing
any damage caused by neglect or negligence. Subject to Medtronic's prior written
authorization, Medtronic will be responsible for the cost of replacing molds and
tooling, except to the extent that such replacement is necessary due to WGT's
failure to maintain, neglect, negligence or intentional acts.
3.16) Records. WGT will at all times maintain, and make available to
Medtronic upon request, a complete list of all Medtronic molds, tooling and
components in WGT's possession. WGT shall evaluate in writing the condition of
all molds and tooling upon receipt from Medtronic and shall submit such
evaluations to Medtronic for its review. Upon request by Medtronic, WGT shall
prepare and deliver to Medtronic a written report of the condition, maintenance,
and usage history for all Medtronic molds and tooling.
3.17) Feedthrough Qualification. WGT shall use commercially reasonable
efforts to achieve Qualification of Feedthroughs for use in Products. Medtronic
shall provide commercially reasonable cooperation, including timely disclosure
of qualification procedures and standards, to WGT in connection with such
efforts.
17
ARTICLE 4
CONFIDENTIALITY AND PUBLICITY
-----------------------------
4.1) Confidential Information. The receiving party agrees to maintain the
confidentiality of the Confidential Information of the disclosing party and
agrees not to disclose or use (except as permitted or required for performance
by the receiving party of its rights or duties hereunder) any Confidential
Information of the disclosing party; provided, however, that a party shall not
be so restricted from using or disclosing any information (that otherwise is
covered under the Confidential Information) that:
(a) was already in the possession of the receiving party prior to its
receipt from the disclosing party (provided that the receiving party is able to
provide the disclosing party with reasonable documentary proof thereof;
(b) is or becomes part of the public domain by reason of acts not
attributable to the receiving party;
(c) is or becomes available to the receiving party from a source other than
the disclosing party which source, to the best of the receiving party's
knowledge, has rightfully obtained such information and has no obligation of
nondisclosure or confidentiality to the disclosing party with respect thereto;
(d) is made available by the disclosing party to a third party unaffiliated
with the disclosing party on an unrestricted basis;
(e) is independently developed by the receiving party completely without
reference to any Confidential Information of the disclosing party, as evidenced
by the receiving party's written records; or
(f) has been or must be publicly disclosed by reason of legal, accounting
or regulatory requirements beyond the reasonable control, and despite the
reasonable efforts, of the receiving party.
The receiving party further agrees to take appropriate measures to prevent
any such prohibited disclosure by its and its subsidiaries' present and future
employees, officers, agents and consultants.
4.2) Public Announcement. In the event either party proposes to issue any
press release or public announcement concerning any provisions of this Agreement
or the transactions contemplated hereby, such party shall so advise the other
party hereto, and the parties shall thereafter use their reasonable best efforts
to cause a mutually agreeable release or announcement to be issued. Neither
party will publicly disclose or divulge any provisions of this Agreement or the
transactions contemplated hereby without the other parties' written consent,
except as may be required by applicable law (including applicable SEC rules and
regulations) or stock exchange regulation; provided that, prior to disclosure of
any provision of this Agreement to any governmental agency or stock exchange,
the parties shall cooperate to seek confidential treatment or other applicable
limitations on the public availability of any information that either of the
parties considers sensitive or confidential.
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ARTICLE 5
INDEMNITIES; LIMITATION OF DAMAGES; WARRANTIES
----------------------------------------------
5.1) Specific Warranties. WGT warrants to Medtronic as follows:
(a) Each Product provided to Medtronic under this Agreement will comply
with all Specifications and will be free from defects in design, materials and
workmanship; provided however, that (i) WGT's warranty that Products will be
free from defects in design shall not apply to Products if the Product design
element at issue was designed solely by Medtronic; and (ii) WGT makes no
representation or warranty as to any Feedthroughs provided by Medtronic to WGT
or other components of any Product provided by Medtronic to WGT.
(b) WGT shall inform Medtronic in writing promptly (but in any event within
two business days) after WGT obtains knowledge of any actual or potential
problems relating to the performance of any Product manufactured for Medtronic
or any similar product manufactured by WGT for a third party. For purposes of
this Section 5.1(b), "knowledge" shall include actual knowledge of any WGT plant
manager, as well as the knowledge any such plant manager could reasonably be
expected to have based on reasonable inquiry.
(c) WGT's execution and performance of this Agreement, the transactions
contemplated herein, and Medtronic's incorporation of Products into medical
devices for sale by or for Medtronic will not infringe, misappropriate, misuse
or conflict with the rights, including Intellectual Property Rights, of third
parties; provided, however, that WGT makes no representation or warranty as to
any Feedthroughs provided by Medtronic to WGT or other components of any Product
provided by Medtronic to WGT.
(d) WGT has full corporate right and authority to enter into and perform
this Agreement. WGT is not a party to any agreement which conflicts with the
terms of this Agreement and will not become a party to any such agreement during
the term of this Agreement. For purposes of clarification, the existence of a
supply contract between WGT and a Medtronic Competitor or other customer shall
not alone constitute a breach of the foregoing warranty.
(e) If WGT's standard product warranty provides additional warranties
and/or remedies, such warranties shall be in addition to the warranty provided
herein. In no event shall WGT's warranty be less than provided in this
paragraph.
5.2) Disclaimer. OTHER THAN THE EXPRESS WARRANTIES HEREIN, WGT MAKES NO
OTHER WARRANTY AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED. WGT MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY AND MAKES
NO IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
19
5.3) Indemnification. WGT agrees to defend, indemnify and hold harmless
Medtronic and its Affiliates, and their respective officers, directors,
employees, shareholders, agents and representatives, 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 in seeking indemnification therefor, and
any amounts or expenses required to be paid or incurred in connection with any
action, suit, proceeding, claim, appeal, demand, assessment or judgment),
whether or not involving a third party claim, ("Losses") resulting from, arising
out of, or imposed upon or incurred by any person to be indemnified hereunder by
reason of (a) any breach of representation, warranty, or agreement on the part
of WGT under this Agreement; (b) any act or omission of WGT, its agents,
employees or its suppliers hereunder except to the extent that injury or damage
is due to Medtronic's negligence or fault; (c) personal injury and property
damages, and costs and expenses related thereto that occur during production
(i.e. the formulation, fabrication, or manufacturing) of a Product by or for WGT
(except to the extent caused by Feedthroughs provided to WGT by Medtronic or
other components provided to WGT by Medtronic for use in Products) or for claims
based on violations of federal, state or local laws or regulations (including
those applicable to employee or environmental protection) in connection with
such production (e.g., a claim based on WGT's violations of environmental
standards or standards dealing with providing a safe place to work or the
maintenance of hazardous materials); (d) personal injury, recall, or product
damage resulting from the failure of a Product to meet any Specification or due
to a defect in materials or workmanship (except to the extent caused by
Feedthroughs provided to WGT by Medtronic or other components provided to WGT by
Medtronic for use in Products); or (e) any allegation that WGT's execution and
performance of this Agreement, the transactions contemplated herein, or
Medtronic's incorporation of Products into medical devices for sale by or for
Medtronic infringes, misappropriates, misuses or conflicts with the rights,
including Intellectual Property Rights, of third parties (except to the extent
caused by Feedthroughs provided to WGT by Medtronic or other components provided
to WGT by Medtronic for use in Products). An amount for which Medtronic is
entitled to indemnification pursuant hereto is referred to as an "Indemnified
Amount."
5.4) Limitation of Liability.
(a) Except for claims resulting from a breach of WGT's warranty under
Section 5.1(b) and for Indemnified Amounts, neither party shall be liable under
this Agreement to the other party for its incidental, special or consequential
damages.
(b) Except with respect to claims resulting from a breach of WGT's warranty
under Section 5.1(b), and provided that WGT is in compliance with its
obligations to maintain insurance as described in Section 5.5, WGT's liability
to Medtronic for Losses resulting from or arising out of personal injury or
product damage to third parties resulting from the failure of a Product to meet
any Specification or due to a defect in materials or workmanship shall not
exceed an amount equal to the products liability insurance limits required
pursuant to Section 5.5.
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5.5) Products Liability Insurance.
(a) WGT shall, at its sole cost and expense, obtain and at all times during
the term of this Agreement maintain products liability insurance with policy
limits equal to the greater of (i) such amounts as ordinary good business
practice for its type of business would make advisable; (ii) such amount as WGT
carries for its products, generally; and (iii) * Dollars * per occurrence and in
the aggregate (over and above up to * Dollars * in deductible or self-insured
retention amount). Such products liability insurance shall name Medtronic, Inc.
as an additional insured thereunder, it being understood that Medtronic shall
have the right to seek recovery under said products liability insurance for any
claims for damages, liabilities, costs (including but not limited to attorneys'
fees), settlements or judgments which may be made against Medtronic on account
of bodily injury, property damage, medical expense, or personal injury to any
person caused by or arising from defects in materials, design, workmanship, or
manufacture of Products supplied by WGT to Medtronic under this Agreement, and
Medtronic agrees to seek recovery for any such claims directly from WGT's
products liability insurance carrier. WGT's products liability insurance
coverage shall: (i) provide for * advance written notice to Medtronic before any
cancellation or modification of such coverage; and (ii) provide that the
coverages will be primary and will not participate with nor be excess over, any
insurance or program of self-insurance carried or maintained by Medtronic; and
(iii) subject to the aggregate limits set forth above, provide that Medtronic's
right to payment under such coverage is separate from and in addition to any
right to payment of WGT; and (iv) with respect to recovery by Medtronic as
described above, not be subject to any deductible or self-insured retention in
excess of * Dollars * , which deductible or self-insured retention shall be the
sole responsibility of WGT.
(b) WGT has, prior to the date hereof, delivered to Medtronic a true and
accurate certificate of insurance, which is attached hereto as Exhibit G,
setting forth the amount of products liability insurance currently maintained by
WGT. Medtronic acknowledges and agrees that the amount of products liability
insurance set forth in such certificate satisfies the criteria set forth in this
Section 5.5. Within * after the beginning of each Contract Year during the term
of this agreement, WGT shall deliver to Medtronic an updated certificate of
insurance setting forth the amount of products liability insurance maintained by
WGT for such Contract Year.
5.6) Set-off. Medtronic shall be entitled, in its discretion and without
limitation of any other rights or remedies of Medtronic, to set-off against any
amounts which are then owed or thereafter become owed by Medtronic to WGT all or
any part of an Indemnified Amount or any amount owed to Medtronic by WGT
pursuant to the Asset Purchase Documents. Medtronic shall be entitled to set-off
an Indemnified Amount when such costs are threatened, whether or not yet
incurred and whether or not the amount thereof has been finally determined. If
Medtronic defers payment of any amount to WGT past the scheduled payment date
because there exists a pending indemnification claim by Medtronic pursuant to
this Article the amount of which has not then been finally determined, the
excess, if any, of such deferred amount over the finally determined amount of
the indemnification claim shall be promptly paid upon such final determination,
together with interest at the Interest Rate on such excess accrued from the
originally scheduled payment date for such deferred amount.
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ARTICLE 6
INTELLECTUAL PROPERTY
---------------------
6.1) Failure to Supply License.
(a) WGT hereby grants Medtronic a non-exclusive, worldwide, paid-up license
under any intellectual property and/or know-how and manufacturing processes
owned or otherwise licensable by WGT to enable Medtronic to make, have made, and
use and sell Products. Subject to the terms and conditions of this Agreement,
Medtronic agrees that it will not manufacture or have a Product made pursuant to
this license, unless WGT fails for any reason to timely deliver such Product
ordered in accordance with the provisions of Article 2, including but not
limited to a failure to deliver such Product which conforms to the
Specifications therefor, which failure is not cured within * after WGT is
notified in writing of such failure (a "Failure of Supply"). Upon Medtronic's
exercise of such right, WGT agrees to promptly provide Medtronic (or its
designee) with all specifications, know-how, trade secrets, software, and other
items (including all specialized items, including tooling, molds, etc.) together
with information and training reasonably necessary for the manufacture of such
Product and access to and use of WGT's facilities in which such Product can be
manufactured, to the extent possible, for the production of such Product. This
manufacturing right may be exercised for a period, not to exceed * , as is
reasonably necessary to economically transfer and start-up alternative
production with another supplier or suppliers. The license granted hereunder
shall continue until the later of (i) the * of the date of any such Failure of
Supply; and (ii) the earlier of: (A) the date that WGT has re-established to
Medtronic's satisfaction its ability to perform its obligations hereunder
without a Failure of Supply or (B) the termination of this Agreement.
(b) In the event that a bankruptcy petition is filed by or on behalf of WGT
and WGT, or a custodian or trustee acting on behalf of WGT, rejects this
Agreement, Medtronic shall be permitted to elect to retain such license pursuant
to ss.365(n) of the federal bankruptcy code (11 U.S.C. ss.101 et.seq.).
6.2) Third Party Licenses. WGT shall comply with all of the material
provisions of, and shall maintain in full force and effect, any and all license
agreements with third parties pursuant to which WGT is licensee of Intellectual
Property and which would have a material effect on the rights granted to
Medtronic by WGT under this Agreement such that if WGT failed to comply with the
provisions of or to maintain in full force such agreements, Medtronic's rights
hereunder would be materially adversely affected. WGT shall promptly notify
Medtronic if any such third party Licensor alleges any breach by WGT of any such
license agreement. Medtronic shall be entitled, but not obligated, to cure any
alleged breach by WGT of such license agreement and set-off the cost of such
cure against amounts otherwise owed to WGT hereunder.
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6.3) Use and Return of Property. All material and information (including,
without limitation, specifications, drawings, designs, samples, software,
formulae, molds, tooling, and components) furnished by Medtronic to WGT shall be
used only in the performance of work for Medtronic and shall remain the property
of Medtronic and, together with all copies thereof, shall be returned in good
repair, normal wear and tear excepted, by WGT to Medtronic at Medtronic's
direction and expense upon termination or expiration of this Agreement or the
earlier request by Medtronic. WGT assumes risk of loss and damage to said items
while in its possession or under its control. WGT shall notify Medtronic
promptly whenever any items of Medtronic's tangible property are damaged or are
in need of repair or replacement. Medtronic's property shall be marked or
otherwise adequately identified by as property of Medtronic for use only under
this Agreement and shall be safely stored. WGT waives any right it may have in
law or equity to withhold Medtronic's property.
6.4) Intellectual Property Matters.
(a) WGT agrees that any creations, discoveries, Inventions, designs,
improvements or other ideas (collectively, "Creations") that are generated by
employees of or consultants working for WGT shall be solely owned by Medtronic
if (i) such Creations are generated solely as a result of Medtronic's disclosure
of Confidential Information to WGT, or (ii) Medtronic's sole ownership rights
with respect to such Creations are set forth in Exhibit L (as amended by the
parties from time to time) in connection with the development of a product or
component for Medtronic pursuant to Section 2.1(c). WGT hereby assigns such
Creations to Medtronic. WGT will promptly disclose any such Creations to
Medtronic and will execute and deliver documents appropriate to evidence
Medtronic's ownership of the Creations. All documentation, drawings, prototypes
and the like relating to such Creations shall also constitute the property of
Medtronic. Medtronic grants no license to WGT to use any property of Medtronic,
including Creations, for any purpose other than as may be necessary for WGT to
manufacture Products for Medtronic under this Agreement.
(b) All Intellectual Property of Medtronic existing on the date hereof and
any Inventions developed solely by employees of, or non-WGT consultants to,
Medtronic after the date hereof shall be and remain the property of Medtronic,
and WGT shall not have any rights therein. Except for the rights granted to
Medtronic hereunder, including under Sections 3.11(b), 6.1(a) and 6.4(a), and
any other separate agreements between Medtronic and WGT, all Intellectual
Property of WGT existing on the date hereof shall be the property of WGT, and
Medtronic shall not have any rights therein.
(c) If Medtronic and WGT (or their employees or agents) jointly conceive,
reduce to practice, or otherwise make, develop or acquire an Invention relating
to a Product (a "Joint Creation"), all rights with respect to such Joint
Creation shall be solely owned by Medtronic; provided, that unless otherwise
agreed in Exhibit L (as amended by the parties from time to time), Medtronic
shall grant to WGT a non-exclusive, worldwide, paid-up license under such Joint
Creation to make, have made, use and sell products to or for third parties,
which license shall (i) be exercisable by WGT only after the date that is one
year after commercial release by Medtronic of a product incorporating such Joint
Creation; and (ii) not be transferable or sublicensable.
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ARTICLE 7
TERM AND TERMINATION
--------------------
7.1) Term. This Agreement shall become binding and enforceable on the
Effective Date and, unless earlier terminated in accordance with Section 7.2,
shall continue in force until the end of the seventh (7th) Contract Year, at
which time it shall expire. The period beginning on the Effective date and
ending on the date of such termination or expiration shall be referred to herein
as the "Term." This Agreement may be renewed beyond this Term if both parties so
agree in writing. Both parties agree to negotiate in good faith prior to
completion of the fifth (5th) Contract Year regarding a renewal or establishment
of a new agreement related to Implantable Device Shield Sub-Assemblies beyond
the initial Term of this Agreement.
7.2) Termination. This Agreement may be terminated as follows:
(a) Either party may terminate this Agreement by giving notice in writing
to the other party in the event the other party is in breach of any material
representation, warranty or covenant of this Agreement and shall have failed to
cure such breach within * after delivery to the breaching party of written
notice describing such breach;
(b) Either party may terminate this Agreement by giving notice in writing
to the other party if the other party has been in breach of a material term or
condition of this Agreement on * or more occasions within any * period, whether
or not such breaches were cured within the cure period provided in Section
7.2(a);
(c) Medtronic may terminate this Agreement at any time, for any or no
reason, by giving notice in writing to WGT at least * in the case of
circumstances described in Section 2.3(c)(ii)(A)) in advance of the effective
date of such termination (the "Section 7.2(c) Notice Period").
(d) Either party may terminate this Agreement at any time by giving notice
in writing to the other party, which notice shall be effective upon dispatch,
should the other party file a petition of any type as to its bankruptcy, be
declared bankrupt, become insolvent, make an assignment for the benefit of
creditors, go into liquidation or receivership; or
(e) Either party may terminate this Agreement by giving notice in writing
to the other party should an event of Force Majeure continue for more than * .
7.3) Survival; Effect.
(a) Upon expiration of the Term, all then outstanding accepted orders for
Products shall survive. Upon an early termination of the Term, the party
electing to terminate the Term may elect whether or not outstanding accepted
orders shall survive.
24
(b) Upon termination or expiration of the Term, WGT shall promptly return
all property of Medtronic in WGT's possession as directed by Medtronic and shall
execute such documents and take other action as reasonably requested by
Medtronic in connection therewith.
(c) Notwithstanding anything to the contrary, all representations,
warranties and indemnifications made in this Agreement, and all other provisions
of this Agreement intended to be observed and performed by the parties after the
Term, including without limitation those provisions relating to the protection
of Confidential Information, shall survive the termination of the Term and
continue thereafter in full force and effect, subject to applicable statutes of
limitation.
(d) In the event of a termination of this Agreement by Medtronic under
Section 7.2(c), or a termination by WGT under Section 7.2(a), then during the
Section 7.2(c) Notice Period (or, in the case of a termination by WGT under
Section 7.2(a), during the * after the effectiveness of such termination)
Medtronic shall either (i) purchase Products hereunder in quantities sufficient
for WGT to fully relieve the Covered Inventory; or (ii) purchase from WGT, and
WGT shall sell to Medtronic, the Covered Inventory for an amount equal to (A) in
the case of Covered Inventory consisting of finished goods, the applicable price
hereunder; (B) in the case of Covered Inventory consisting of work-in-process,
raw materials, components and subcomponents, WGT's recorded costs of such
Covered Inventory.
(e) If Medtronic terminates this Agreement under Section 7.2(c) within this
* after the date of this Agreement, then Medtronic shall purchase (or
repurchase) from WGT, at a price and on other terms set forth in the Asset
Purchase Documents, all equipment purchased by WGT from MDT pursuant to, and
identified expressly in, the Asset Purchase Documents. Medtronic shall also have
the option, exercisable in its discretion by delivering written notice to WGT,
to purchase any specialized equipment purchased by WGT specifically for the
production hereunder of Products for Medtronic.
ARTICLE 8
MISCELLANEOUS
-------------
8.1) Assignment. Neither party shall have the right to assign or otherwise
transfer its rights and obligations under this Agreement (whether by merger,
share exchange, combination or consolidation of any type, operation of law,
purchase or otherwise) except with the prior written consent of the other party;
provided, that Medtronic or any Affiliate of Medtronic may assign its rights
pursuant to this Agreement to any person who, by merger, share exchange,
combination or consolidation of any type, purchase, operation of law, asset
purchase or otherwise, acquires substantially all of the business of Medtronic
or such Affiliate to which this Agreement relates. Any prohibited assignment
shall be null and void.
8.2) Notices. All notices or other communications to a party required or
permitted hereunder shall be in writing and shall be delivered personally or by
facsimile (receipt confirmed electronically) to such party or shall 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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if to Medtronic, to:
Medtronic Puerto Rico Operations Co.
Road 31, Km. 24, HM 4
Ceiba Norte Industrial Park
Juncos, PR 00777
Attention: Plant Manager - Cardiac Rhythm Management
Facsimile: (787) 561-2394
with a copy to:
General Counsel
Medtronic, Inc.
World Headquarters
Mail Stop LC400
710 Medtronic Parkway
Minneapolis, MN 55432-5604
Facsimile: (763) 572-5459
if to WGT, to:
Wilson Greatbatch Technologies, Inc.
9645 Wehrle Drive
Clarence, New York 14031
Attention: President
FAX: (716) 759-5672
with a copy to:
Hodgson Russ LLP
One M&T Plaza
Suite 2000
Buffalo, New York 14203
Attention: Robert B. Fleming, Jr., Esq.
FAX: (716) 849-0349
Any party may change the above-specified recipient and/or mailing address
by notice to all other parties given in the manner herein prescribed. All
notices shall be deemed given on the day when actually delivered as provided
above (if delivered personally or by facsimile) or on the day shown on the
return receipt (if delivered by mail or delivery service).
8.3) Consents; Waivers. Any approval, authorization, waiver or consent
required by this Agreement must be in writing, duly signed by an authorized
representative of the granting party. The withholding of an approval,
authorization, waiver or consent for regulatory, quality, or competitive reasons
shall not be deemed unreasonable. The failure of either party to enforce at any
time any of the provisions of this Agreement shall in no way be construed to be
a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part of it or the right of either party after any such failure
to enforce each and every such provision. No waiver of any breach of this
Agreement shall be held to be a waiver of any other or subsequent breach.
26
8.4) No Joint Venture. Nothing contained in this Agreement will be deemed
to create a joint venture, partnership, agency or similar endeavor between the
parties hereto. Each party will act solely as an independent contractor and
neither part will have any power or authority to direct or indirectly bind or
act on behalf of the other.
8.5) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without reference to the
choice of law principles thereof Subject to Section 8.13, and without limiting
the rights of the parties to pursue in any appropriate jurisdiction their
respective rights with respect to any judgment obtained in respect hereof, the
parties hereby irrevocably consent to the exclusive jurisdiction and venue of
any United States court of competent jurisdiction located in the State of
Minnesota and/or the state courts located in Anoka County therein to adjudicate
any legal action commenced in respect of this Agreement and waive any objections
either may have at any time to such jurisdiction and venue. The parties agree to
the personal jurisdiction of such courts and agree that service of process may
be made pursuant to notice sent in accordance with Section 8.2.
8.6) Entire Agreement. This Agreement (including accompanying purchase
orders), together with any related schedules and exhibits, constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior proposals, discussions, or agreements. whether written or
oral, relating hereto. Medtronic and Globe Tool and Manufacturing Company, Inc.
hereby agree that the Supply Agreement dated February 1, 2002 shall terminate as
of the date hereof.
8.7) Titles and Headings; Construction. The section and article headings
contained in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement. This Agreement shall
be construed without regard to any presumption or other rule requiring
construction hereof against the party causing this Agreement to be drafted.
8.8) Severability. If any provision of this Agreement is held invalid by a
court of competent jurisdiction, the remaining provisions shall nonetheless be
enforceable according to their terms. Further, if any provision is held to be
overbroad as written, such provision shall be deemed amended to narrow its
application to the extent necessary to make the provision enforceable according
to applicable law and shall be enforced as amended.
8.9) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be considered one and the same instrument.
27
8.10) Benefit. Except as provided in Article 5, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective permitted successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
8.11) Execution of Further Documents. Each party agrees to execute and
deliver without further consideration any further applications, licenses,
assignments or other documents, and to perform such other lawful acts as the
other party may reasonably request to fully secure and/or evidence the rights or
interests herein.
8.12) Compliance with Laws. The parties will comply with all applicable
international, national, state, regional and local laws and regulations,
including all applicable import and export control laws, in exercising their
rights or performing their duties under this Agreement.
8.13) Arbitration. Any dispute arising under this Agreement (other than a
failure to agree with respect to Product pricing under Sections 2.4(a), 2.4(d),
2.4(e), 2.4(f) or 3.2(b)) shall be referred first to the President of WGT and
the President of Medtronic Cardiac Rhythm Management or his or her designee
(each a "Relationship Manager") within three (3) business days after receipt of
a notice from either party specifying the nature of the dispute and referencing
this Section. Each Relationship Manager shall make a good faith attempt to begin
discussions regarding such dispute in person or by telephone with the other
Relationship Manger within ten (10) business days of a dispute being referred to
him or her. The Relationship Managers shall meet as often as the parties
reasonably deem necessary in order to gather and furnish to the other all
information with respect to the matter in issue which the parties believe to be
appropriate and germane in connection with its resolution. The Relationship
Managers shall discuss the problem and negotiate in good faith in an effort to
resolve the dispute without the necessity of any formal proceeding. Should the
Relationship Managers fail to reach agreement within thirty (30) days of the
initiation of the dispute resolution process (or such longer period as such
representatives may agree in writing), then formal proceedings for the
resolution of a dispute may be commenced in accordance with Exhibit H. The
results of such arbitration proceedings shall be binding upon the parties, and
judgment may entered upon the arbitration award in any court having jurisdiction
thereof
[Remainder of page intentionally blank; signatures follow]
28
IN WITNESS WHEREOF, this Supply Agreement has been signed on behalf of each
of the parties hereto as of the date first above written.
WILSON GREATBATCH TECHNOLOGIES, INC.
By: /s/ Edward F. Voboril
-------------------------
Name: Edward F. Voboril
-----------------
Title: Chairman and CEO
------------------
MEDTRONIC PUERTO RICO OPERATIONS CO.
By: /s/ Gary L. Ellis
---------------------
Gary L. Ellis
-------------
Vice President, Controller and Treasurer
----------------------------------------
GLOBE TOOL AND MANUFACTURING COMPANY,
INC. (solely with respect to Section 8.6)
By: /s/ Edward F. Voboril
-------------------------
Name: Edward F. Voboril
--------------------
Title: President
--------------------
29
EXHIBITS
Exhibit A Products and Pricing
Exhibit B Exclusive Processes
Exhibit C Product Specifications
Exhibit D WGT Pricing Model
Exhibit E Facilities Specifications
Exhibit F Subcomponent Suppliers
Exhibit G Insurance Certificate
Exhibit H Alternative Dispute Resolution
Exhibit I Price Arbitration Procedure
Exhibit J Initial Forecast
Exhibit K Feedthrough Reimbursement Amounts and Yield Rates
Exhibit L Product/Component Development
Exhibit M WGT Facilities
Exhibit N Supplier Managed Inventory
30