EXHIBIT 10.3
SUPPLY AGREEMENT
This agreement (this "Agreement") dated as of September 25, 1997 between
and among The Spectranetics Corporation, a Delaware corporation having a place
of business at 00 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000-0000 (hereinafter
referred to as "SPNC"); and United States Surgical Corporation, a Delaware
corporation, having a place of business at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000 (hereinafter referred to as "USSC").
WHEREAS, USSC has certain expertise in the design, development,
manufacture, marketing and sales of medical devices including advanced excimer
lasers and related medical devices and accessories; and
WHEREAS, SPNC has certain expertise in the design, development, manufacture
and marketing and sale of advanced excimer lasers, medical devices and
accessories; and
WHEREAS, USSC and SPNC have heretofore executed a certain "Confidential
Disclosure Agreement dated June 28, 1995 (the "Confidentiality Agreement')
attached hereto as APPENDIX A; and
WHEREAS, SPNC and USSC desire to expand their relationship and use their
respective expertise cooperatively to further develop and commercialize*; and
WHEREAS, SPNC and USSC are executing a license agreement simultaneously
with this Agreement (the "License Agreement") pursuant to which SPNC is granting
a license to USSC for *
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
ARTICLE 1 - DEFINITIONS
1.1 For purposes of this Agreement, the definitions set forth below shall
be applicable:
"Affiliate" shall mean a corporation or other business entity which is,
directly or indirectly, controlled by a party hereto. For this purpose, control
of a corporation or other business entity shall mean (i) direct or indirect
beneficial ownership of fifty percent (50%) or more of the voting interest in
such corporation or other business entity, (ii) direct or indirect beneficial
ownership of fifty percent (50%) or more of the equity of such corporation or
other business entity, and (iii) the existence of any other relationship between
a corporation or other business entity and another corporation or other business
entity which results in effective management control by one or the other,
regardless of whether such control is continuously exercised. The term
"Affiliates" shall not mean any corporation or other business entity which
controls a party hereto or is under common control with a party.
*
"FDA" shall mean the United States Department of Health and Human Services,
Food and Drug Administration, or any successor agency.
*
"Person" or "Persons" shall mean any individual, corporation, partnership,
association, trust or other entity or organization, including a governmental or
political sub division or any agency or instrumentality thereof.
*
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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"Product" or "Products" shall mean collectively, * in the field.
"Subsidiary" shall mean any corporation, partnership or other entity, fifty
percent (50%) or more of the outstanding shares of any class of stock, general
partnership interest, or other equity of which is owned by a party; and any
operating division of a party not separately incorporated or organized as an
independent business Person.
"Territory" shall mean every country and territory in the world.
"Tooling" shall mean molds, dies and tooling and other equipment and items
relating to Products which may from time to time be provided by USSC to SPNC or
acquired or built by SPNC with funds provided to SPNC by USSC for the specific
purpose of acquiring or building such items.
1.2 In addition to the foregoing defined terms, the following terms shall
have the meanings set forth in the referenced Sections of this Agreement:
Term Section
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International Regulatory Agency 3.5
Joint Results 6.2
Purchase Order 3.1
* 7.2
* 7.2
* 7.3
* 7.3
Warranty 3.2
ARTICLE 2 - PURCHASES AND SALES OF PRODUCTS
2.1 AGREED UPON PURCHASES AND SALES.
(a) Upon execution of this Agreement by both parties, USSC shall issue a
Purchase Order (defined below) to SPNC for, and SPNC shall accept such Purchase
Order for the
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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sale and delivery to USSC of [*] of SPNC's * at a * price of [*] per Unit.
Such Purchase Order shall include agreed upon shipment and delivery
schedules, and payment thereunder by USSC shall be due in full upon SPNC's
written acceptance of the Purchase Order. Such Purchase Order shall be set
forth as *, attached hereto (the "* P.O."). Notwithstanding the foregoing,
the parties recognize and agree that USSC has already ordered [*] Units, and,
accordingly, the foregoing obligation shall be reduced thereby. The price of
the Unit set forth in this Section 2.1(a) includes *
(b) Upon execution of this Agreement by both parties, USSC shall issue
a Purchase Order to SPNC for, and SPNC shall accept such Purchase Order for
the sale and delivery to USSC of [*] at a price per unit of [*] per unit.
Such Purchase Order shall include agreed upon shipment and delivery schedules
and payment terms, and payment thereunder by USSC shall be due in full upon
SPNC's written acceptance of the Purchase Order. Such Purchase Order shall
be set forth as *, attached hereto (the "* P.O."). USSC hereby approves of
the design of such * and acknowledges that SPNC shall have no obligation
under this Agreement to supply *, the design of which is not approved by
USSC. The aforesaid pricing for * shall be subject to revision as shall be
mutually agreed by the parties in the event USSC requests specification
changes from the specifications set forth in such Purchase Order. Freight,
duties, insurance or any other applicable third party charges and fees are
not included and shall be paid by USSC.
2.2 ADDITIONAL PURCHASES AND SALES *. SPNC shall sell additional * to
USSC, and USSC shall purchase all its requirements for additional * for use
with * from SPNC during the term of this Agreement on the terms and
conditions set forth in Section 2.1 (other than price) and Article 3 below.
The pricing for such purchases during the term of this Agreement shall be as
follows: (i) the prices set forth in Section 2.1(b) during the period ending
* from the date hereof and (ii) prices determined by SPNC during each *
period commencing on each * year anniversary of the date of this
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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Agreement starting with the execution of this Agreement by both parties
(provided, however, that such prices shall in no event be more than [*]% ([*]
%) of the prices charged in the preceding * year period); provided, however,
that such prices shall be increased by SPNC's fully-burdened cost of any
modifications made in the * based on specification changes in the * requested
by USSC.
2.3 *
ARTICLE 3 - OTHER TERMS OF SALE AND COVENANTS
3.1 PURCHASE ORDERS. Purchase of Products by USSC from SPNC shall be
made pursuant to written purchase orders issued by USSC from time to time to
SPNC ("Purchase Orders"). * attached hereto, shall govern all Purchase
Orders for *. Insofar as the terms and conditions of Purchase Orders are
contrary to or inconsistent with the terms and conditions of this Agreement
hereto, the terms and conditions of this Agreement shall control.
3.2 PRODUCT REPRESENTATIONS AND WARRANTIES. SPNC represents and
warrants the following with respect to Products to be supplied to USSC: (i)
the Products will conform to mutually agreed upon specifications and will be
free of defects in materials and workmanship; (ii) will be manufactured in
accordance with all applicable regulatory provisions, including without
limitation, applicable FDA regulations as to "Good Manufacturing Practices"
including those recited for medical devices set forth at 21 C.F.R. Section
820, as amended from time to time, and the "Establishment Regulation and
Device Listing for Manufacturers of Devices" set forth at 21 C.F.R. Section
807, as amended from time to time, and ISO 9001; (iii) will not be
adulterated or misbranded within the meaning of the United States Food, Drug
and Cosmetic Act of 1938, as amended, and the regulations promulgated
thereunder; (iv) the Products will be free and clear of all liens, security
interests, charges and encumbrances of any kind or amount; and (v) will
conform to SPNC's standard representations and warranties for sale of * set
forth on *, attached hereto (the "Warranty").
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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3.3 CHANGES TO PRODUCTS. During the term of this Agreement, SPNC will
neither change the materials comprising the Products sold hereunder nor
implement different specifications for such Products without USSC's prior
written consent, which consent shall not be unreasonably withheld or delayed.
SPNC will provide USSC notice of such proposed changes as far in advance as
possible in order for USSC to consider such proposed changes and to seek, if
appropriate, approvals by the FDA and any International Regulatory Agency
(defined below).
3.4 REGULATORY ASSISTANCE. SPNC agrees to provide to USSC such
assistance as USSC reasonably requires in connection with instituting and
complying with the regulatory provisions referenced in Section 3.3 above.
Notwithstanding, SPNC shall not be required to pay any costs or expenses
other than SPNC's out-of-pocket costs in connection with any such assistance.
SPNC shall permit USSC to inspect production, labeling, shipping, packaging
and quality control and sterilization facilities and its regulatory books and
records involving or relating to the manufacture of * to allow USSC to verify
SPNC's compliance with its obligations under this Agreement.
3.5 REGULATORY INTERACTION AND RESPONSIBILITIES.
(a) Interaction with the FDA and any federal, state or local governmental
authority in the Territory outside the United States which authority performs
similar functions to the FDA (collectively, "International Regulatory Agency")
involving or relating to Products may be conducted non-exclusively by USSC and
SPNC agrees to fully cooperate with USSC in connection with same. SPNC shall,
subject to appropriate confidentiality agreements, (a) provide USSC access to
the greatest extent possible to all relevant FDA submissions (e.g. IDEs and
PMAs) made by SPNC; and (b) allow USSC the right to copy and include the
pertinent sections (e.g. product specifications, EMC testing, manufacturing
processes and control, and biocompatability of UV laser light) of such
submissions in USSC's own FDA submissions. For purpose of any filings with the
FDA and any International Regulatory Agency concerning the Products, either
party shall have the right to be an official company sponsor. In the event of a
dispute between USSC and SPNC concerning any matter relating to such interaction
with the FDA or any International Regulatory Agency solely as it relates to the
Field, USSC shall have final authority to act, as USSC in its sole discretion,
deems appropriate with respect to the matter in dispute. Notwithstanding the
foregoing, SPNC shall have sole control of and
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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responsibility for interaction with the FDA and any International Regulatory
Agency with respect to (i) SPNC qualification as a manufacturer under
applicable laws and regulations of the FDA and any International Regulatory
Agency; and (ii) SPNC materials used in Products regulated by such
authorities. Notwithstanding the foregoing, nothing in this Agreement shall
restrict (i) SPNC's right to conduct itself appropriately as determined in
the exercise of SPNC's sole judgment with respect to any regulatory agency,
including, without limitation, the FDA and any International Regulatory
Agency, or (ii) SPNC's ability to conduct research and academic studies
including, without limitation, clinical trials concerning Excimer Lasers and
Probes.
(b) Each party shall provide the other with a copy of any reported adverse
experience involving a Product as used in the Field after a party receives the
report of such occurrence whether sold by it or any third person or entity to
whom a party has granted any distribution or sales rights. Any death, serious
injury, potential for occurrence of the same, or change in the frequency or
occurrence of field experiences with respect to a Product which is required to
be reported by a party to the FDA or any International Regulatory Agency shall
be reported to the other party as promptly as possible to enable the other party
to comply with applicable regulations in a timely manner.
(c) SPNC shall institute and fund any recall, field corrective action,
or the like in circumstances relating to a Product defect or failure which
requires such action as determined by the FDA, any International Regulatory
Agency, SPNC, or as otherwise may be required pursuant to applicable laws,
rules or regulations if caused by the failure of the Product to meet the
agreed upon specifications for such Product when delivered by USSC. USSC
shall institute and fund any recall, field corrective action, or the like in
any other circumstances relating to a Product defect or failure which
requires such action as determined by the FDA, any International Regulatory
Agency, USSC, or as otherwise may be required pursuant to applicable laws,
rules or regulations if it relates to a defect or failure of a caused by
designs produced by USSC. In any such circumstances relating to, the actual
retrieval of the sold by USSC will be undertaken by USSC. In any such
circumstances relating to *, the actual retrieval of the * sold by USSC will
be undertaken by SPNC.
3.6 REPAIR AND MAINTENANCE SERVICES FOR *. SPNC shall offer to USSC
and USSC customers throughout the Territory non-Warranty equipment and repair
maintenance services for * in such locations in the Territory as SPNC is at
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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such time already providing non-Warranty equipment and maintenance services
for * to other customers at SPNC's then standard price and on SPNC's then
standard terms.
3.7 TOOLING AND TOOLING DRAWINGS. USSC shall have no obligation to pay or
reimburse SPNC in connection with the acquisition or building of Tooling but may
do so from time to time in its discretion provided the parties agree thereto in
a separately signed writing, neither party being obligated to so agree. All
Tooling and drawings of Tooling shall be owned by USSC and shall be used by SPNC
exclusively to meet SPNC's obligations under this Agreement. All Tooling shall
be maintained by SPNC (i) in good repair and condition, ordinary wear and tear
excepted; (ii) in a reasonably secure location on the premises of SPNC and
reasonably acceptable to USSC and shall not be moved or relocated from such
location without prior notice and approval of USSC; and (iii) free and clear of
any right, title or interest in any other Person. SPNC shall (i) apply such
physical notice of USSC's ownership to each item of Tooling as is requested by
USSC and reasonably appropriate for such Tooling; (ii) maintain a written log of
all such Tooling and provide a copy of such log to USSC from time to time upon
request; (iii) permit USSC's representatives to inspect the Tooling from time to
time during the term of this Agreement during SPNC's normal business hours upon
prior notice; (iv) keep the Tooling insured against loss by fire (including
extended coverage), theft and other hazards under policies with responsible
insurers authorized to do business in the jurisdiction where the Tooling is
situated, cause USSC to be named as an additional named insured on such policies
as its interests may appear, and provide to USSC a certificate of such insurance
in customary form; and (v) promptly execute and reasonably cooperate with USSC
in connection with filing UCC statements and similar protective instruments with
respect to the Tooling to give notice to third Persons of USSC's ownership of
the Tooling. Any changes to Tooling shall be documented on the drawings.
3.8 SURVIVAL. The provisions of this Article 3 shall survive termination
of this Agreement.
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ARTICLE 4 - MARKETING ASSISTANCE, ADDITIONAL PAYMENTS
AND ADDITIONAL JOINT PROJECTS
4.1 MARKETING ASSISTANCE.
(a) SPNC shall * and shall provide USSC with *
(b) SPNC shall within fifteen (15) days following the execution of this
Agreement provide to USSC a list containing the names, addresses and contact
persons of each third Person or entity in possession of an *. SPNC shall
also provide USSC with the same types of information promptly following the
sale or transfer of any additional * during the term of this Agreement. USSC
will limit the distribution of this list, to Persons approved by SPNC, which
approval shall not be unreasonably withheld or delayed, in such a manner to
minimize the number of individuals with complete access to SPNC's customer
list.
4.2 ADDITIONAL PAYMENTS.
(a) Subject to the terms of this Agreement, USSC shall make payments to
SPNC as follows:
(i) [*]
(ii) [*]
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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(b) USSC shall deliver quarterly written reports within sixty (60) days
after the end of each quarter, to SPNC concerning payments due under Section
4.2(a). Such reports shall specify the name, address and number of Excimer
Lasers subject to a payment, the date (insofar as known by USSC to its
knowledge) each such * was first used *, and the amount of payments due to
SPNC thereon. All information contained in such reports shall be treated as
USSC's Confidential Information (defined below). Simultaneously with the
submission of each report, USSC shall pay SPNC by check or bank transfer the
amount of the payment due to SPNC for the report period under the terms of
this Agreement. During the first calendar quarter following the end of each
year in which there has been a payment due under Section 4(a), USSC shall
furnish to SPNC, at USSC's expense, a letter from a nationally recognized
firm of independent accountants, which may be the accounting firm employed by
USSC to conduct its regular annual audit, verifying the amount due during
such year under this Agreement.
(c) SURVIVAL. The provisions of this Section 4.2 shall survive
termination of this Agreement.
4.3 ADDITIONAL PROJECTS. * During the term of this Agreement,
the parties shall discuss broadening their relationship on mutually
satisfactory terms in their respective discretion, provided, however, neither
party shall be under any obligation to enter into such arrangement.
ARTICLE 5 - CONFIDENTIAL INFORMATION
5.1 USSC CONFIDENTIALITY OBLIGATION. USSC hereby represents and warrants
that it has not, directly or indirectly, disclosed and agrees that it will not,
directly or indirectly disclose, either during or subsequent to the term of this
Agreement, any Confidential Information of SPNC, to any other Person, except to
its attorneys and accountants as required in connection with this Agreement who
have been and will be instructed to maintain its confidentiality and to third
Persons, with a demonstrated need to know such Confidential Information, who
shall execute binding written agreements requiring such third parties not to
disclose Confidential Information disclosed to them by USSC.
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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5.2 SPNC CONFIDENTIALITY OBLIGATION. SPNC hereby represents and warrants
that it will not, directly or indirectly, disclose during or subsequent to the
term of this Agreement, any Confidential Information proprietary to USSC, to any
other Person, except to SPNC's attorneys and accountants as required in
connection with this Agreement who have been and will be instructed to maintain
its confidentiality and to third Persons, with a demonstrated need to know such
Confidential Information, who shall execute binding written agreements requiring
such third parties not to disclose Confidential Information disclosed to them by
USSC.
5.3 SUPPLIERS. It is not intended by this Article 5 that USSC shall be
required to obtain specific written commitments in relation to this Agreement
from materials and/or component suppliers where only specifications are
disclosed to said materials and/or component suppliers by USSC.
5.4 CONFIDENTIAL INFORMATION. For purposes of this Agreement,
"Confidential Information" shall mean verbal and written disclosures from SPNC
or USSC (the "Discloser") to the other party (the "Disclosee"), which concern
the Discloser, including without limitation information which concerns the
Discloser's business, operations, products or research and development efforts,
or which concern the Products, but shall not include information which: (a) at
the time of disclosure is published or otherwise becomes a part of the public
domain through no fault of Disclosee (but only after, and only to the extent
that, it is published or otherwise becomes a part of the public domain); (b)
Disclosee can show was known to it at the time of disclosure, free of
restriction; (c) has been or hereafter is disclosed to Disclosee without any
obligation of confidentiality by a third Person who is in lawful possession of
such information and has the right to disclose it to disclosee; (d) has been or
hereafter is disclosed by Discloser to a third Person free of any obligations of
confidentiality; (e) is developed by the Disclosee independent of the
discloser's Confidential Information; or (f) is disclosed by Disclosee pursuant
to the order or requirement of a court, administrative agency or other
governmental body, provided that the Disclosee promptly informs the Discloser of
its intent to make such disclosure, takes all reasonable steps to limit such
disclosure and does not inhibit the Discloser in taking whatever lawful steps
the Discloser considers necessary to attempt to preserve the confidentiality of
such information. Disclosures made to Disclosee by Discloser which are specific
shall not be deemed to be within the foregoing exceptions merely because they
are embraced by general disclosures in the public domain or in the possession of
Disclosee.
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5.5 REMEDIES. The parties agree and acknowledge that any breach of this
Article 5 by SPNC or USSC would likely cause irreparable injury to the other
party and that such other party's remedy at law for any such breach would be
inadequate. Accordingly, the parties agree that, in addition to any other
remedies provided for herein or otherwise available at law, temporary and
permanent injunctive relief and other equitable relief may be granted in any
Action which may be brought by either party to enforce the provisions of this
Article 5 without the necessity of proof of actual damage . Each party agrees
promptly to seek temporary and permanent injunctive relief against any of its
directors, officers, employees, representatives or agents who breach the
aforesaid obligations with respect to any matter relating to this Agreement.
5.6 SURVIVAL. The provisions of this Article 5 shall survive termination
of this Agreement.
ARTICLE 6 - INVENTIONS
6.l PRIOR INVENTIONS. USSC and SPNC each acknowledge that the other party
has heretofore developed or acquired methods, processes and apparatus relative
to their respective fields of endeavor. Notwithstanding anything in this
Agreement to the contrary, USSC and SPNC each retain all right, title and
interest in and to such methods, processes and apparatus developed or owned on
their respective parts prior to the effective date of this Agreement.
6.2 OWNERSHIP OF INVENTIONS. *
6.3 PATENTS. Each party shall assist and cooperate in a reasonable
manner with the other parties in obtaining patent protection for inventions
referred to in Section 6.2 and to protect title in the same in the name of the
proper party in accordance with such Section. * shall have the first right
to apply for and pursue patent protection for Joint
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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Results for any invention, development or improvement that relates to
* , and in the event that * does not, after a reasonable period following
discovery of the Joint Results, file for patent protection, * may file for
such patent protection. No party shall be obligated, however, to seek patent
protection for any invention or to pursue any application therefor once
filed. Each party shall have sole discretion in determining the
jurisdictions in which it shall seek patent protection for any invention
owned by it.
6.4 SURVIVAL. The provisions of this Article 6 shall survive termination
of this Agreement.
ARTICLE 7 - INDEMNIFICATION
7.1 BREACH OF THE AGREEMENT. Each of the parties agrees to defend,
indemnify and hold harmless the other parties and such other party's officers,
directors, employees, agents and representatives from and against any and all
suits, claims, losses, damages, judgments, executions, awards or damages,
including reasonable attorneys fees and costs resulting from such party's
misrepresentations, breach of warranties or failure to comply with its
obligations under this Agreement.
7.2 * INDEMNIFICATION *
(a) *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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(b) *
7.3 * INDEMNIFICATION *
(a) *
(b) *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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7.4 SURVIVAL. The provisions of this Article 7 shall survive termination
of the Agreement.
ARTICLE 8 - TERM AND TERMINATION
8.1 SPECIFIED TERM. The term of this Agreement shall commence upon the
date the last party signs this Agreement and shall continue until terminated
pursuant to Section 8.2.
8.2 EARLY TERMINATION. This Agreement may terminate prior to the end of
the term upon notice by one party upon the material breach of this Agreement by
the other party.
8.3 CURE. Notwithstanding Section 8.2 above, either party shall have the
right to cure any material breach. The cure shall be effected within a
reasonable period of time but not later than thirty (30) days after notice of
such breach given to it by the non-breaching party, if the cure can be effected
within such thirty (30) day period. If the breach is such that it cannot
reasonably be cured within such thirty (30) day period, this Agreement shall
terminate unless the breaching party institutes diligent efforts to cure such
breach within such thirty (30) day period and, so long as such party shall
continue to pursue diligent efforts to effect such cure. Notwithstanding the
foregoing, USSC's right to cure a failure to pay the amount due under a Purchase
Order shall be limited to five (5) business days after notice.
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8.4 NON TERMINATION. Notwithstanding any other provision of this
Agreement, a party contesting in good faith any issue under this Agreement who
continues to comply with all other obligations and provisions of this Agreement
shall not be considered in breach of this Agreement for purposes of giving rise
to any right of termination by the other party until there is a final judgment
of a court of competent jurisdiction adverse to such contesting party with which
judgment such party has failed to comply within fifteen (15) days after written
notice thereof.
8.5 POST TERMINATION SALES. In the event of termination of this Agreement
at the end of the term hereof or by early termination by either party in
accordance with this Article 8, all Purchase Orders of USSC for Products
accepted by SPNC at the time of notice of termination shall remain firm and
binding on USSC and SPNC shall fill all Purchase Orders accepted by SPNC in
accordance with their terms. Notwithstanding such termination, USSC shall have
the right to continue to sell all Products in USSC inventory or which are the
subject of any Purchase Orders previously accepted by SPNC.
8.6 SURVIVAL. The provisions of Section 8.5 above shall survive
termination of this Agreement.
ARTICLE 9 - NOTICES
9.1 NOTICES. Written communications under this Agreement shall be
effective only if addressed to the respective designees as follows (or to
such designees as the parties hereto may from time to time designate in
writing):
SPNC:
The Spectranetics Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn.: Chief Executive Officer
USSC:
United States Surgical Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
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Attn.: Xxxxxx X. Xxxxxx, Esq.
Senior Vice President and General Counsel
ARTICLE 10 - ENTIRE AGREEMENT
10.1 ENTIRE AGREEMENT. This Agreement, along with the License Agreement
and the Service Maintenance Master Agreement dated August 19, 1996, constitutes
the entire understanding and agreement between the parties, and supersedes all
previous agreements (whether written or oral) concerning the subject matter
hereof. This Agreement may not be amended or supplemented except by a written
document executed by the parties to this Agreement.
10.2 AUTHORITY. Each party represents and warrants to the other party:
(i) it has no agreement or understanding with any third party which if enforced,
terminated or modified would prohibit it from entering into or carrying out the
terms of this Agreement or which would restrict or limit the rights granted to
the other party hereto; (ii) there is no action, suit or proceeding, claim or
investigation pending, or to its best knowledge currently threatened against it,
which, if adversely determined, is reasonably likely to prohibit it from
entering into or carrying out the terms of this Agreement or which would
restrict or limit the rights granted to the other parties hereto; and (iii) that
it is a corporation duly organized and validly existing under the laws of the
state of its incorporation and the officer executing this Agreement on its
behalf has full power and authority to execute same.
ARTICLE 11 - ASSIGNMENT
11.1 ASSIGNMENT. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and permitted
assigns, including without limitation, successors to all or substantially all of
the assets, business or operations of the corporations or entities performing a
party's obligations under this Agreement. Neither this Agreement nor the
performance of any part hereof may be assigned or transferred by either party
hereto without the prior written consent of the other party, except that a
party's rights hereunder may be transferred (i) to an Affiliate of such party
without the prior written consent of the other party, provided such party
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continues to guarantee all of the payment and performance obligations of such
party, or (ii) to a successor of all or substantially all of the business and
assets of the party.
ARTICLE 12 - INDEPENDENT CONTRACTORS
12.1 INDEPENDENT CONTRACTORS. The parties hereto are independent
contractors. Neither this Agreement nor any terms and conditions herein
contained shall be construed as creating a joint venture, agency or
employment relationship. Neither party is granted any right or authority to
assume or to create any obligation or responsibility, express or implied, on
behalf of or in the name of the other party.
ARTICLE 13 - WAIVER
13.1 NO WAIVER. The failure of either party to exercise any right it
is granted herein or to require the performance by the other party hereto
with respect to any provision of this Agreement, shall not prevent a
subsequent exercise or enforcement of such provision or be deemed a waiver of
any subsequent breach of the same or any other provision of this Agreement.
ARTICLE 14 - CONSTRUCTION; ADJUDICATION
14.1 CONSTRUCTION. This Agreement, the validity, construction,
performance and interpretation thereof, and all issues and controversies
arising therefrom shall be construed and enforced in accordance with the
internal laws of the State of * applicable to contracts made and to be
performed entirely within the State of * without reference to its
conflict of law provisions.
14.2 *
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* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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14.3 SURVIVAL. The provision of this Article 14 shall survive
termination of this Agreement.
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ARTICLE 15 - COUNTERPARTS
15.1 COUNTERPARTS. This Agreement may be signed in multiple
counterparts each one of which shall be deemed effective as if each party had
signed each of such counterparts.
ARTICLE 16 - NON-COMPETE
16.1 DEFINITIONS: For purposes of this Article 16, the following terms
shall have the following definitions:
Directly or Indirectly - The term Directly or Indirectly shall
include by the Person or through any other Person (i) as to which the Person
is directly or indirectly a proprietor, partner, stockholder, joint venturer
or owner or (ii) to which the Person directly or indirectly renders services
in any capacity relating to the area of non-competition contemplated by this
Article 16.
Sell - The term Sell shall include sale, lease or rent.
16.2 *
16.3 *
16.4 MODIFICATION. If any covenant set forth in Article 16 is
construed by a court of competent jurisdiction to be unenforceable because of
its scope or duration, the parties agree that such court shall have the power
to modify such scope or duration and, as so modified, said covenant shall be
given full force and effect. If any such covenant or a portion thereof is
otherwise construed to be invalid or unenforceable, the same shall not affect
the remaining covenants or remaining portion, which shall be given full force
and effect without regard to the invalid covenant or portion.
--------------------
* This portion marked with an asterisk has been omitted pursuant to a request
for confidential treatment and filed separately with the Commission.
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16.5 REMEDY. Each party acknowledges and agrees that any breach of
this Article 16 would likely cause irreparable injury to the other party and
that the other party's remedy at law for any such breach would be
inadequate. Accordingly, each party agrees that, in addition to any other
remedies provided for herein or otherwise available at law, temporary and
permanent injunction relief may be granted in any proceeding which may be
brought to enforce any provision of this Article 16 without the necessity of
proof of actual damage.
16.6 MATERIALITY. The parties acknowledge and agree that the covenants
contained in this Article 16 are materially significant and essential to this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE SPECTRANETICS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: President/CEO
-------------------------------------
UNITED STATES SURGICAL CORPORATION
By: /s/ Xxxxxx X. Xxx
----------------------------------
Xxxxxx X. Xxx
Senior Vice President, Operations
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