EXHIBIT 10.70
COPROMOTION AGREEMENT
This COPROMOTION AGREEMENT (the "Agreement") is made as of the date all
parties have signed the Agreement ("Effective Date") by and between MEDTRONIC,
INC., a Minnesota corporation having its principal place of business at 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxx, XX 00000-0000 ("Medtronic"), and HORIZON MEDICAL
PRODUCTS, INC., a Georgia corporation having its principal place of business at
Seven North Parkway Square, 0000 Xxxxxxxxx Xxxxxxx XX, Xxxxxxx, Xxxxxxx 00000
("Horizon").
W I T N E S S E T H:
WHEREAS, Medtronic designs, develops, manufactures and distributes
medical devices, including implantable drug delivery systems;
WHEREAS, Medtronic Neurological, a Medtronic business division,
designs, develops, manufactures, markets and distributes implantable drug
delivery systems ("Products") which are used for the treatment of Hepatic
Arterial Infusion ("HAI Therapy") and for the treatment of malignant pain ("Pain
Therapy") collectively referred to as "Therapies";
WHEREAS, Horizon Sales Representatives, as defined in Section 3(a)
below, have access to and experience selling medical devices to oncologists and
vascular surgeons;
WHEREAS, Medtronic and Horizon entered into a pilot co-promotion
agreement ("Pilot Agreement") on August 23, 2001;
WHEREAS, Medtronic and Horizon now wish to enter into a Co-Promotion
Agreement ("Agreement") with Horizon whereby Horizon Sales Representatives would
promote and/or provide technical advice and assistance on Medtronic's Products
and Therapies; and
NOW, THEREFORE, in consideration of the mutual covenants and premises
set forth herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
corresponding meanings set forth below:
"ADVANCED TRAINING" means a second-level program designed to
follow Basic Training and provide Horizon Sales Representatives with the skills
and knowledge necessary to provide technical advice and assistance on Medtronic
Products and Therapies during refill or Implant of Product.
"APPROPRIATE PATIENT" means a patient selected for a therapy,
that is either (a) indicated for chronic intravascular infusion of floxuridine
(FUDR) for the treatment primary of metastatic cancer or (b) indicated for
malignant intractable pain in patients with lung-, breast-, prostate- or
colorectal-cancer. Those patients must have completed HAI Evaluation or must
have completed an intrathecal morphine screening trial, respectively.
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"BASIC TRAINING" means an introductory program designed to
explain the FDA-approved indicated uses, safety, effectiveness, side effects,
warnings and other relevant characteristics of the Products and/or Therapies and
to summarize other key elements (e.g., responses to frequently voiced questions
or objections) of Sales Calls.
"FDA" shall mean the United States Food and Drug
Administration, or any successor or entity thereto.
"HAI EVALUATION" means that the implanter / surgeon performs
surgical procedures and/or diagnostic tests, which confirm liver metastases.
"HORIZON SALES REPRESENTATIVE(S)" has the meaning specified in
Section 3(a) hereof.
"IMPLANT OF PRODUCT" means the implant of either an IsoMed(R)
or SynchroMed(R) infusion system supporting an Appropriate Patient with either
HAI or Pain Therapy.
"MINIMUM IMPLANT TARGETS" has the meaning specified in Section
8 below or, should the Agreement continue beyond two (2) years after its
Effective Date, as mutually agreed in writing by the parties.
"PRODUCTS" has the meaning specified above.
"PROMOTIONAL MATERIAL" shall mean all material produced and
provided by Medtronic in written, printed, or graphic form, approved for use by
Medtronic which is intended for use by Horizon Sales Representatives in
connection with its co-promotion duties hereunder and relating or referring to
the Products and/or Therapies.
"SALES CALL" shall mean the activity undertaken by a Horizon
Sales Representative with Targeted Contacts in the Territory, whether held in
their offices, at hospitals or at other appropriate locations (but excluding
forms of communication not involving face-to-face contact between a Horizon
Sales Representative and a Targeted Contact), for the purpose of describing the
FDA-approved indicated uses, safety, effectiveness, contraindications, side
effects, warnings and other relevant characteristics of the Products and/or
Therapies.
"TARGETED CONTACTS" means all those individuals listed on
Appendix A hereto. (The final list of oncology offices supplied by Horizon to
Medtronic on March 14, 2002 ("Oncology List"), will be considered Appendix A
until it is replaced by a revised list as follows. Within thirty (30) days of
the Effective Date, Horizon shall produce to Medtronic a version of the Oncology
List that has been completed with the more detailed information present in
Appendix A to the Pilot Agreement. Within thirty (30) days of receiving this
list from Horizon, Medtronic will make any changes that, in its discretion, are
required, and provide Horizon with a final Appendix A reflecting such changes.
"TERRITORY" means the United States.
"TECHNICAL SERVICE SUPPORT" refers to providing, during
implant or refill, technical advice and assistance, consistent with Medtronic
procedures, on the Products and/or Therapies.
"TRADEMARKS" means the trademark "HAI(TM)," "SynchroMed(R),"
"IsoMed(R)," and any other trademark or trade name (whether registered or
unregistered) used on or with the Products
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and/or Therapies (or any component part thereof), or in any promotional material
related to the Product (or any component part thereof) in the Territory during
the term of this Agreement.
"TRAINING COMPLETION DATE" means the date on which ninety
percent (90%) of the Horizon Sales Representative have received Basic Training.
2. GRANT OF RIGHTS TO HORIZON.
Medtronic hereby grants Horizon the non-exclusive right to promote and
provide Technical Service Support for the Products and Therapies during the term
of this Agreement to Targeted Contacts in the Territory, under the terms and
conditions set forth herein. The parties acknowledge that Medtronic will also
directly and indirectly continue to promote directly and indirectly and provide
Technical Service Support for the Products and Therapies to its customers.
3. CO-PROMOTION BY HORIZON; SALES TRAINING.
(a) Horizon or Horizon subsidiary field sales representatives and sales
managers (collectively, "Horizon Sales Representatives") will undertake all
commercially reasonable efforts to make the Sales Calls necessary in order to
actively promote the Products and Therapies to Targeted Contacts in the
Territory. Horizon may not assign or delegate its rights under this Agreement to
any individual or entity (other than those current distributors listed on
Appendix B) not a Horizon employee without the prior, written consent of
Medtronic.
(b) The Promotional Material and any other information to be presented
by Horizon Sales Representatives during all Sales Calls will be developed and
paid for by Medtronic. Horizon will use only the Promotional Material for Sales
Calls and will not use the Promotional Material for any other purpose. All
Promotional Material and training supplied by Medtronic pursuant to this Section
3 shall be shipped by Medtronic to a single location to be designated by
Horizon. Horizon shall bear all responsibility, risk of loss and cost for
distributing such material to Horizon Sales Representatives.
(c) As soon as practicable following the execution of this Agreement,
and prior to the making of any Sales Calls by any Horizon Sales Representative,
Medtronic will arrange for and present Basic Training to all Horizon Sales
Representatives. The Basic Training will be held on a date(s) that is mutually
acceptable to both parties and will be repeated thereafter periodically as
deemed necessary and mutually agreed by the parties.
(d) At the request of Medtronic and subject to Horizon's prior
agreement, individual Horizon Sales Representatives will provide Technical
Service Support. No Horizon Sales Representatives shall provide such Technical
Service Support prior to having received Advanced Training. The Advanced
Training will be held on a date(s) that is mutually acceptable to both parties
and will be repeated thereafter periodically as deemed necessary and mutually
agreed by the parties.
(e) Medtronic will be responsible for covering all expenses associated
with the development and delivery of sales training materials to Horizon Sales
Representatives, and for the costs of all transportation, accommodation and meal
expenses for any Medtronic personnel participating in any training programs
conducted hereunder. Horizon will be responsible for the costs of any facility
required in connection with such training programs as well as all
transportation, accommodation and meal expenses for all Horizon Sales
Representatives attending any such training programs. Training program costs
that do not fall into the categories described above shall be borne by Horizon
up to a maximum of $200,000 per session.
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4. REGULATORY MATTERS
(a) All regulatory matters regarding the Product shall remain the
obligation and exclusive responsibility of Medtronic.
(b) Horizon shall notify Medtronic within two (2) working days of the
receipt by Horizon of any complaints or adverse events ("AE") associated with
the Product, and shall submit to Medtronic a copy of any records or other
documentation, which Horizon has received or created relating thereto. Horizon
and Medtronic shall develop a mutually acceptable referral system under which
Horizon shall refer and forward to Medtronic any medical inquiries for
appropriate resolution by Medtronic. Medtronic shall be responsible for making
all decisions and undertaking any reporting obligations or other actions with
respect to communicating with any governmental regulatory agency as a result of
any AEs or other reports or inquiries, or taking any other action that Medtronic
may deem necessary or appropriate under all applicable government rules and
regulations.
(c) During the term of this Agreement, Medtronic shall inform Horizon
of any serious AE reported to Medtronic involving a patient implanted with a
Product (or with any component thereof) within two (2) working days of the
receipt of such report (but in any event no later than the date on which such
serious AE must be reported to the FDA). For purposes of this subsection, a
serious AE shall be deemed to include any adverse event which is either (1)
fatal, (2) life threatening, (3) results in permanent impairment of a body
function or permanent damage to body structure, or (4) necessitates medical or
surgical intervention by a health care professional to preclude permanent
impairment of a body function or permanent damage to body structure, or to
relieve unanticipated temporary impairment of a body function or unanticipated
damage to body structure. Horizon understands that such information provided to
it will be as reported as required and will not be deemed to be determinative as
to whether or not the Product contributed to the serious AE.
(d) Beginning as of the date of this Agreement, each party shall
promptly notify the other party in writing of any order, request or directive of
a court or other governmental authority to recall, issue a field notification,
or withdraw the Product in any jurisdiction. Medtronic shall be responsible, at
its sole cost and expense, for the costs (including any costs incurred by
Horizon) of any recall, field notification or withdrawal of the Product. Horizon
will notify Medtronic in writing within fifteen (15) days of receipt of any such
notification from Medtronic if it believes the subject action will materially
affect its ability to meet the Minimum Implant Targets set forth in Section 8
below. (Horizon may make a similar notification to Medtronic within fifteen (15)
days of receiving information regarding a halt in Medtronic shipping or
production of the Products due, for example, to an AE or a successful patent
infringement claim against Medtronic.) Medtronic will notify Horizon within
fifteen (15) days of receipt of any such notification whether it agrees with
Horizon's assessment and is prepared to decrease the relevant Minimum Sale(s)
Targets accordingly.
5. COMPLIANCE WITH LAWS.
Each party shall maintain in full force and effect all necessary
licenses, permits and other authorizations required by law to carry out its
duties and obligations under this Agreement. Each party shall comply with all
laws, ordinances, rules and regulations applicable to its activities under this
Agreement, including but not limited to, the provisions of the U.S. Food, Drug
and Cosmetic Act, and the Prescription Drug Marketing Act of 1987, as each may
be amended from time to time, and all rules and regulations promulgated
thereunder.
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6. CONFIDENTIALITY.
(a) The parties hereby agree to hold in strict confidence and to use
all reasonable efforts to maintain the secrecy of any and all confidential and
proprietary information disclosed by one party to the other under the terms of
this Agreement without the express, written consent of the disclosing party,
with the exception of the following:
(i) information which, at the time of disclosure, is
available to the public;
(ii) information which, after disclosure, becomes
available to the public by publication or otherwise,
other than by breach of this Agreement by the
receiving party;
(iii) information that the receiving party can establish by
prior record was already known to it or was in its at
the time of disclosure and was not acquired, directly
or indirectly, from the disclosing party;
(iv) information that the receiving party obtains from a
third party; provided, however, that such information
was not obtained by said third party, directly or
indirectly, from the disclosing party under an
obligation of confidentiality toward the disclosing
party;
(v) information that the receiving party is compelled to
disclose by a court or other tribunal of competent
jurisdiction, provided however, that in such case the
receiving party shall immediately give notice to the
providing party so that the providing party may seek
a protective order or other remedy from said court or
tribunal; in any event, the receiving party shall
disclose only that portion of the Confidential
Information that, in the opinion of its legal
counsel, is legally required to be disclosed and will
exercise reasonable efforts to ensure that any such
information so disclosed will be accorded
confidential treatment by said court or tribunal.
(b) Horizon hereby acknowledges that the above provisions shall cover
any confidential or proprietary information received from Medtronic that relates
to the development of sales training materials, Promotional Material, sales
training, and/or sales techniques specific to the Product.
7. COMPENSATION AND REPORTING REQUIREMENTS.
(a) Medtronic will pay Horizon on a performance basis according to the
schedule specified in Section 7(b), commencing as of the Effective Date. Horizon
shall prepare and submit a summary report of monthly performance activity to
Medtronic on the basis of data taken from a reporting system as per Appendix B
of the Pilot Agreement, hereby incorporated as Appendix C. (Said Appendix C may
subsequently be revised on mutual agreement.) Within fifteen (15) days of
receipt of this report, Medtronic will review. For reported activities falling
into subsections (b)(i) and (b)(iv) below, payment will be made no later than
thirty (30) days after Medtronic receives the report, provided that, for the
activities falling into subsection (b)(i), Medtronic agrees (the "Validation")
that Horizon is responsible for the identification and, for the activities
falling into subsection (b)(iv), the Technical Service Support was undertaken at
Medtronic's request. Assuming the Validation described above has occurred,
payment for reported activities falling into subsections (b)(ii) and (b)(iii)
below will be made no later than thirty (30) days after Medtronic has received
any and all device registration data necessary to confirm that the relevant
Implants of Product/Therapy have taken place.
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(b) Medtronic will make payments to Horizon based upon the following
performance criteria for Horizon Sales Representatives:
(i) Medtronic will pay Horizon One Hundred Fifty Dollars
($150) for identification of each Appropriate Patient
per process shown in Appendix C.
(ii) Medtronic will pay Horizon Six Hundred Dollars ($600)
on Implant of Products/Therapies per process shown in
Appendix C.
(iii) Medtronic will pay Horizon a One Thousand Dollar
($1000) bonus per Horizon sales representative for
the first Appropriate Patient implanted with either
an IsoMed(R) or SynchroMed(R) infusion system per the
process shown in Appendix C.
(iv) Medtronic will pay Horizon One Hundred Dollars ($100)
per implant or refill procedure during which the
Horizon Sales Representative provides Technical
Service Support.
8. MINIMUM IMPLANT TARGETS.
Horizon shall achieve the following Minimum Implant Targets for the
Product, of which at least thirty percent. (30%), based on Medtronic device
registration data, are for HAI Therapy:
(i) By the end of the first year following the Training
Completion Date: 500 Implants of Product;
(ii) By the end of the eighteenth month following the
Training Completion Date: 850 Implants of Product;
(iii) By the end of the second year following the Training
Completion Date: 1000 Implants of Product.
It is expressly agreed by the parties that failure by Horizon to
achieve the Minimum Implant Targets set forth in subsections (ii) and (iii)
above (and those agreed for subsequent years of the Agreement, if any) shall
constitute a breach of the Agreement and shall thereby trigger Medtronic's
rights as specified in Section 11 of that certain Note Purchase Agreement dated
of even date herewith.
9. RECORDS AND AUDIT.
Each party will use its best efforts to maintain complete and accurate
books and records in sufficient detail to enable verification of the
compensation payable under this Agreement. Upon reasonable prior notice to
either party, the requesting party may have access to the relevant books and
records of the other party to conduct a review or audit thereof.
10. TRADEMARKS.
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(a) Medtronic hereby grants to Horizon a fully-paid up, non-exclusive
right and license to use the Trademarks solely in connection with the promotion
of the Product and related activities undertaken by Horizon in connection with
this Agreement.
(b) Horizon acknowledges the validity of Medtronic in the right, title
and interest in and to the Trademarks, and further that Horizon shall not have,
assert or acquire any right, title or interest in or to any other trademarks or
other intellectual property rights owned by Medtronic, except as otherwise
explicitly provided in this Agreement.
(c) Horizon shall use the Trademarks only in the manner directed in
writing by Medtronic and shall not use the Trademarks in connection with any
goods or products other than the Product.
(d) Each party shall give the other party notice of any infringement or
threatened infringement of the Trademarks. Medtronic shall determine in its sole
discretion what action, if any, to take in response to the infringement or
threatened infringement of the Trademarks. In the event that Medtronic chooses
to take enforcement action in response to the infringement or threatened
infringement of the Trademarks, Horizon shall reasonably cooperate in such
enforcement; provided, however, that the Medtronic party shall reimburse Horizon
for its reasonable expenses incurred that are related to such enforcement.
11. TERM AND TERMINATION.
(a) This Agreement shall be effective for a period of two years
commencing on the Effective Date (the "Term") unless either party gives the
other party notice of termination at least sixty (60) days prior to the end of
the first year of the Term or unless the Agreement is previously terminated
under subsection (b) or (c) below. This Agreement may be renewed by Medtronic
for additional two (2) year terms, upon delivery of notice by Medtronic at least
sixty (60) days prior to the expiration of the then-current term. The terms and
conditions of this Agreement, including those relating to termination set forth
in this Section, shall continue to apply to any such renewal terms.
(b) Upon breach of any term of this Agreement, the breaching party will
be given written notice by the other party, and fifteen (15) days within which
to remedy such breach. Failure to remedy any such breach within this time period
will constitute sufficient grounds for termination without any further notice.
In addition, Horizon may terminate this Agreement upon fifteen (15) days written
notice in the event that Medtronic ceases to have access to Product (whether due
to lack of supply, regulatory action or otherwise) or for any reason desires to
cease its sale of the Product in the Territory.
(c) 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 cease to do business as a going concern, admit
in writing its inability to pay debts as they become due, file a petition in
bankruptcy, have an involuntary bankruptcy petition or equivalent filing made
against it which is not dismissed within sixty (60) days or promptly contested
by such party, appoint a receiver, acquiesce in the appointment of a receiver or
trustee, become insolvent, make an assignment for the benefit of creditors, go
into liquidation or receivership or otherwise lose legal control of its
business.
(d) Neither the termination nor expiration of this Agreement shall
release or operate to discharge either party from any liability or obligation
(including but not limited to those payment
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obligations of Medtronic based upon Sales Calls or Technical Service Support
undertaken by any Horizon Sales Representative prior to said termination) that
may have accrued prior to such termination or expiration. Any termination of the
Agreement by a party shall not be an exclusive remedy but shall be in addition
to any legal or equitable remedies that may be available to the terminating
party. However, neither party shall be liable to the other party for any damages
(whether direct, indirect, special, consequential, incidental, or other,
including lost profits) sustained by reason of any said termination or
expiration.
(e) Upon the termination or expiration of this Agreement, Horizon shall
cease all Sales Calls and all other promotional activities on the Product
undertaken pursuant to this Agreement, discontinue any use of and return to
Medtronic all Promotional Materials, as well as any information used to develop
Promotional Material, sales training and marketing materials, and all materials
and Product samples that may have been supplied to Horizon by Medtronic under
the terms of this Agreement.
(f) With the exception of the obligations in Sections 6, 11(d), 12,
16(e) and (j), this Agreement shall be deemed to be terminated in its entirety
and of no further force and effect if neither party has any further obligation
to the other party in accordance with the terms hereof.
12. EMPLOYMENT MATTERS.
Except as mutually agreed by Horizon and Medtronic or as expressly
permitted by this Agreement, neither party will, during the Term of this
Agreement or for a period of six (6) months thereafter, solicit for employment
the other parties' employed or contract sales representatives or technical
service representatives. In the event Horizon discontinues doing business for
any reason (including, without limitation, upon the occurrence of any of the
instances listed in Section 11(c) hereof), Medtronic has the right to solicit
and hire Horizon's Sales Representatives for potential employment opportunities
with Medtronic. In any such instance Horizon hereby agrees not to enforce any
non-competition provisions contained in any employment agreement and/or
non-compete agreement Horizon may have with its Sales Representatives.
13. INDEMNIFICATION AND INSURANCE.
(a) Medtronic shall defend, indemnify and hold Horizon and its
employees, agents, officers, directors and affiliates (an "Horizon Party")
harmless from and against any and all losses, liabilities, obligations, claims,
fees (including, without limitation, attorneys fees), expenses incurred by
Horizon Party and resulting from or arising in connection with (i) the breach of
any covenant, representation or warranty of Medtronic contained in this
Agreement, (ii) the manufacturing, sale or distribution of the Product by
Medtronic (or any component part thereof), including, without limitation, any
claim of patent infringement or any claim, lawsuit or other action resulting
solely from Horizon's proper use of the Trademarks in accordance with the terms
hereof, (iii) any product liability claim related to the Product, including,
without limitation, the use by any person of any Product that was manufactured,
sold or distributed by Medtronic or any licenses or affiliate thereof, (iv) any
contamination to or defect in the Product, and (v) the successful enforcement by
A Horizon Party of its rights under this Section 13(a) except to the extent such
losses, liabilities, obligations, claims, fees or expenses are based upon
negligence or willful malfeasance by Horizon. In addition, Medtronic shall not
be obligated to indemnify Horizon for any liability related to the Product for
which Horizon has assumed an indemnification obligation under Section 13(b)
below.
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(b) Horizon shall defend, indemnify and hold Medtronic and its
employees, agents, officers, directors and affiliates (a "Medtronic Party")
harmless from and against any and all losses, liabilities, obligations, claims,
fees (including, without limitation, attorney fees), expenses and lawsuits
brought against or incurred by a Medtronic Party resulting from or arising in
connection with (i) the breach of Horizon of any covenant, representation or
warranty of Horizon contained in this Agreement, or (ii) the successful
enforcement by a Medtronic Party of its rights under this Section 13(b).
(c) To receive the benefits of the indemnity under clauses (a) or (b)
above, as applicable, the indemnified party must give the indemnifying party
written notice of any claim or potential claim, promptly after the indemnified
party receives notice of any such claim. The indemnifying party shall have the
right to assume the defense of any such claim if it assumes responsibility to
the indemnified party under this Section 13. If the indemnifying party defends
the claim, the indemnified party may participate in, but not control, the
defense of such claim at its sole costs and expense. An indemnifying party shall
have no liability under this Section 13 as to any claim for which settlement or
compromise or an offer of settlement or compromise is made by the indemnified
party without the prior consent of the indemnifying party.
(d) Neither party shall be liable to the other party under this Section
13 for any special, consequential or indirect damages suffered by the other
party including, without limitation, lost profits.
(e) Each party shall use its commercially reasonable efforts to
maintain insurance against such risks (including product liability) and upon
such terms (including coverages, deductible limits and self-insured retentions)
as is customary for the activities to be conducted by it under this Agreement
and is appropriate to cover its indemnification obligations hereunder. Each
party shall furnish to the other party evidence of such insurance, upon request.
14. REPRESENTATIONS AND WARRANTIES.
(a) Medtronic represents and warrants to Horizon that (i) the
execution, delivery and performance of this Agreement by Medtronic does not
conflict with, or constitute a breach of any order, judgment, agreement, or
instrument to which Medtronic is a party, (ii) the execution, delivery and
performance of this Agreement by Medtronic does not require the consent of any
person or the authorization of (by notice or otherwise) any governmental or
regulatory authority, (iii) the rights granted by Medtronic to Horizon hereunder
do not conflict with any rights granted by Medtronic to any third party; (iv)
Medtronic has not received any notice, and is not aware of the basis for, any
claim that the manufacture, use or sale of the Product infringes any patent or
other intellectual property right of any third party; and (v) it has not been
debarred by the FDA under the Generic Drug Enforcement Act of 1992, and neither
it nor any of its officers or directors has ever been convicted of a felony
under the laws of the United States for conduct relating to the development or
approval of a drug product or relating to the marketing or sale of a drug
product.
(b) Horizon represents and warrants to Medtronic that (i) the
execution, delivery and performance of this Agreement by Horizon does not
conflict with, or constitute a breach of any order, judgment, agreement, or
instrument to which Horizon is a party; (ii) the execution, delivery and
performance of this Agreement by Horizon does not require the consent of any
person or the authorization of (by notice or otherwise) any governmental or
regulatory authority; and (iii) Horizon has not been debarred by the FDA under
the Generic Drug Enforcement Act of 1992, and neither it nor any of its officers
or directors has ever been convicted of a felony under the laws of the United
States
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for conduct relating to the development or approval of a drug product or
relating to the marketing or sale of a drug product.
15. NOTICES.
Any notice required or permitted to be given hereunder shall be in
writing and shall be delivered personally by hand, or sent by reputable
overnight courier, signature required, to the addresses of each party set forth
below or to such other address or addresses as shall be designated in writing in
the same matter:
(a) If to Medtronic:
Medtronic, Inc.
000 Xxxxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Vice President and General Manager
Global Pain Management
Medtronic Neurological
With a copy to: Neuro - Vice President and Sr. Legal Counsel
(b) If to Horizon:
Horizon Medical Products, Inc.
Seven North Parkway Square
0000 Xxxxxxxxx Xxxxxxx XX
Xxxxxxx, XX 00000
ATTN: Chief Executive Officer
All notices shall be deemed given when received by the addressee.
16. MISCELLANEOUS PROVISIONS.
(a) Assignment. Neither party shall assign or otherwise transfer (by
operation of law or otherwise) this Agreement or any interest herein or right
hereunder without the prior written consent of the other party, and any such
purported assignment, transfer or attempt to assign or transfer any interest
herein or right hereunder shall be void and of no effect; except that each party
may assign its rights or obligations hereunder without the prior consent of the
other party to an affiliate of such assigning party.
(b) Non-Waiver. Any failure on the part of a party to enforce at any
time or for any period of time, any of the provisions of this Agreement shall
not be deemed or construed to be a waiver of such provisions or of any right of
such party thereafter to enforce each and every such provision.
(c) Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and thereof and
supersedes all prior and contemporaneous verbal and written agreements,
representations and warranties with respect to such subject matter. This
Agreement may be released, waived or modified only by a written agreement signed
by an
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officer or other authorized representative of the party against whom enforcement
of any release, waiver, modification or other change is sought.
(d) Public Announcements. The form and content of any public
announcement regarding this Agreement, or the subject matter contained herein,
shall be subject to the prior mutual agreement of the parties, except as may be
required by applicable law.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to its
conflict of laws provisions.
(f) Relationship of the Parties. In making and performing this
Agreement, the parties act and shall act at all times as independent entities
and nothing contained in this Agreement shall be construed or implied to create
an agency, partnership or employer and employee relationship between Medtronic
and Horizon. Except as otherwise provided herein, neither party may make any
representation, warranty or commitment, whether express or implied, on behalf of
or incur any charges or expenses for or in the name of the other party. No party
shall be liable for the act of any other party unless such act is expressly
authorized in writing by both parties hereto.
(g) Headings. All headings are for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement.
(h) Counterparts. This Agreement shall become binding when any one or
more counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against the
party whose signature appears thereon, but all of which taken together shall
constitute but one and the same instrument.
(i) Force Majeure. Neither party shall be liable to the other party for
any failure to perform as required by this Agreement if the failure to perform
is due to circumstances reasonably beyond such party's control, including,
without limitation, acts of God, civil disorders or commotions, acts of
aggression, fire, explosions, floods, drought, war, sabotage, disturbances, a
national health emergency, or appropriations of property. A party whose
performance is affected by a force majeure event shall take prompt action to
remedy the effects of the force majeure event.
(j) Severability. The parties hereto expressly agree and contract that
it is not the intention of either party to violate any public policy, statutory
or common laws, rules, regulations, treaties or decisions of any government or
agency thereof. If any provision or part thereof contained in this Agreement is
declared invalid by any court of competent jurisdiction or a government agency
having jurisdiction, such declaration shall not affect the remainder of the
provision and each shall remain in full force and effect.
11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEDTRONIC, INC. HORIZON MEDICAL PRODUCTS, INC.
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxx Xxxxxxx -----------------------------------
Vice President and General Manager
Medtronic Global Pain Business
Date 3/15/02 Title President
------------------------------------- --------------------------------
Date 3/15/02
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