Exhibit 10.5
AMENDMENT NO. 6 TO SUPPLIER PARTNERING AGREEMENT
BETWEEN GREATBATCH, INC.
AND PACESETTER, INC. (d/b/a ST. JUDE MEDICAL CRMD)
This Amendment (the "Amendment No. 6") to the Supplier Partnering Agreement is
between Greatbatch, Inc., a Delaware corporation ("Seller"), and Pacesetter,
Inc. d/b/a "St. Jude Medical CRMD", a California corporation ("Buyer" or "St.
Jude"). Seller and Buyer are collectively referred to herein as the "Parties".
This Amendment No.6 is entered into effective as of 1 March 2007 (the "Effective
Date").
BACKGROUND
A. Buyer and Seller entered into a Supplier Partnering Agreement (the
"Agreement") effective 01 January 2004.
B. Buyer, Seller and, where applicable, the other Parties have entered
into Amendment Nos. 1-5 to the Agreement.
C. The Parties agree to continued good faith negotiations towards
expanding the business relationship between the Buyer and Seller.
D. The Parties to the Agreement desire to further amend the Agreement as
provided for herein.
AGREEMENT
In consideration of the foregoing Recitals and the Parties' mutual covenants
contained herein, the Parties hereby agree as follows:
1. As of Effective Date, Subpart 1.7 of Exhibit A of the Agreement is
hereby amended to include Coated Components and Molded Header
Assemblies as Products.
2. As of Effective Date, Section 1 of Exhibit A of the Agreement is
hereby amended to add new Subparts which read in their entirety as
follows:
"1.10 "Coated Components" means any substrate material that is
covered, in whole or in part, by a material intended specifically to
alter the therapy delivery characteristics of the substrate
material, including where the context requires all such Products
manufactured by Seller and sold to Buyer under this Agreement.
1.11 "Molded Header Assemblies" means a single piece molded device
header assembly, including where the contract requires all such
Products manufactured by Seller and sold to Buyer under this
Agreement."
3. As of the Effective Date, Exhibit F of Amendment No. 3 of the
Agreement is hereby amended to add a new Subpart A4 which reads in its
entirety as follows:
"A.4.Buyer agrees to provide Seller future opportunities to expand
sales of Molded Header Assemblies to Buyer."
4. As of the Effective Date, Exhibit D of the Agreement is hereby amended
to add a new Subpart A4 which reads in its entirety as follows:
"A.4.Buyer agrees to provide Seller future opportunities to expand
sales of Coated Components to Buyer."
5. As of Effective Date, Section 7 of Exhibit A of the Agreement is
hereby amended to include Subsection 7.4 which reads in its entirety
as follows:
"7.4 During the Term of the Agreement, Buyer and Seller agree to
explore the opportunity for Seller to perform assembly services
for the Buyer."
6. As of Effective Date, Section 8 of the Agreement is hereby amended to
read in its entirety as follows:
"8. Communication: Seller and Buyer will conduct a semi annual
review to facilitate the purposes of this agreement. Buyer will
also provide Seller with quarterly updates of planned production
rates for the Products to assist the Seller in capacity planning.
The Buyer's Commodity Managers and the Seller's Customer Program
Managers shall facilitate all communications."
7. As of Effective Date, Section 2.7 of Exhibit A of the Agreement is
amended in its entirety to change the term "Batteries" to "Products."
8. As of the Effective Date, Section 3 of Exhibit A of the Agreement is
hereby amended to add a new Subpart 4 which reads in its entirety as
follows:
"3.4 Buyer hereby agrees to indemnify, defend and hold Seller, its
Affiliates and each of their officers, directors and employees
harmless from any damage, costs or liabilities, including, without
limitation, any reasonable costs or legal fees thereby incurred by
Seller and payable to third parties (collectively, "damages")
arising out of any claim to the extent that such claim arises from
or results out of the marketing, distribution or sale of medical
devices by Buyer which contain a component ("Third Party
Component") supplied by a Non-Seller Supplier identified in
Exhibit H of this Amendment that was procured by Seller under
directions from Buyer. Such indemnification shall include, without
limitation, damages resulting from:
(a) Personal injury or death resulting from the use of a medical
device containing a Third Party Component;
(b) Alleged defects of the medical devices containing a Third
Party Component;
(c) Any breach by Buyer of its covenants contained in any
existing agreements between Buyer and Seller; and
(d) Any Third Party Component as supplied to Seller from
Non-Seller Supplier under direction from Buyer which
infringes any patent or other intellectual property rights
of any other party specifically relating to such Third Party
Component, or the process of its manufacture by a Non-Seller
Supplier or its use by Buyer or affiliates,
except to the extent the damage is caused by Seller's gross
negligence, willful misconduct or breach of any existing agreement
between Buyer and Seller.
Seller is responsible to complete incoming inspection
requirements.
Buyer's obligation under this section is subject to the following
conditions: Seller shall give Buyer prompt written notification of
any such claim so as not to prejudice Seller's performance, and
shall cooperate in the defense of such claim at Buyer's expense.
Further, Seller agrees that Buyer shall have sole control over the
defense or settlement of any such claim, action or proceedings,
including, but not limited to, the right to select defense
counsel, and that neither Seller nor its officers, directors,
employees, agents, or contractors shall enter into any agreement
with respect to such claim, action or proceeding for which
indemnification is or may be sought without receipt of Buyer's
prior written approval. Seller shall have the right to retain
separate counsel at its sole expense. Such separate counsel shall
function solely to advise Seller and shall have no right to
control the defense of any lawsuit or to effect any settlement,
other than at Seller's sole expense."
The Parties have caused this Amendment No. 6 to be executed by their respective
duly authorized representatives as of the Effective Date.
BUYER: SELLER: SELLER:
PACESETTER, INC. GREATBATCH, INC. GREATBATCH, INC.
By: /s/ Jeff Chateau By: /s/ Susan Campbell By: /s/ Mauricio Arellano
-------------------- --------------------- ---------------------
Vice President Vice President
Title: VP Supply Lines Title: Medical Power Title: Medical Solutions
----------------- ------------------ ------------------
Date: 2-26-07 Date: 2-28-07 Date: 2-28-07
------------------ ------------------ -------------------
Exhibit H
LIST OF THIRD PARTY NON-SELLER SUPPLIERS
A. BalSeal Engineering Co., Inc. - Springs
B. Rolenn Manufacturing - Seals
C. Hirose Electric Group - Connectors
D. UDT Sensors, Inc. - Diodes
E. Noveon - Tecothane